HKSAR v. LEUNG YUEN CHI AND ANOTHER

DCCC 422/2023

[2024] HKDC 669

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 422 OF 2023

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REASONS FOR VERDICT

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1.  The position is today that the 1^st defendant faces a single charge of burglary on 4^th September 2022 and the 2^nd defendant faces two charges of burglary on 4^th September and 7^th September respectively.

2.  The charges are in respect of certain items originally located in a flat at an industrial building in Kwai Chung.  The premises had been rented by the victims who were PWs 1 to 3 in December 2021 for the purposes of cryptocurrency mining and the premises certainly did at some point contain equipment for such mining.

3.  The 1^st and 2^nd defendants are alleged to  have removed some of that equipment on the 4^th and 7^th September 2022 and it is not disputed by the 1^st and 2^nd defendants that they did move items including a fan that had been inside or outside the relevant premises.  The 1^st defendant says this was done because she thought it was abandoned, that is the property was abandoned.  The 2^nd defendant says he did so simply because he was helping her.  Both say they had no knowledge the goods belonged to anyone at the time they removed them or that they had any value.

4.  A bit more detail on the facts of the case as follows.  The prosecution witnesses who were called were the people who had set up the crypto mining enterprise and they evidenced that they set up a crypto mining enterprise at Flat AA, 15^th Floor, Block 2, Kingswin Industrial Building in Kwai Chung.  The equipment consisted of 11 mining machines called MCX machines, 122 computer display cards and other digital equipment and a fan, or fans, to cool the equipment.  The total cost of this equipment of HK$436,000.

5.  The premises were locked and PWs 1 to 3 each held a key.  On 28 August 2022, crypto mining was not making money so a decision was made to turn the equipment off, save for the 11 MCX machines which could be monitored by way of an app remotely.  The flat was entered for this purpose on that date in August. The evidence is that it was left locked and closed.

6.  It was found that on 3^rd September the 11 mining machines no longer appeared to be using power.  On 15^th September, PWs 1 to 3 returned to the flat to find it secured, it was locked.  Other than some cardboard boxes and a computer chair, all the equipment inside the flat had gone missing.

7.  Police investigated by way of CCTV cameras in the lift lobby on the 15^th floor.  This showed that on 4^th September, the 1^st and 2^nd defendants had repeatedly moved boxes to one of the lifts using a trolley.  The 2^nd defendant was seen on the 4^th and 7^th September to move a large fan across the lobby and later to one of the lifts.

8.  The 1^st defendant was later arrested because of her appearance on the CCTV cameras.  In summary, it could be said that she lives in the building at Flat K, that is agreed, on the same floor.  She said that she had seen the door to the flat open on 3^rd September.  There were a few boxes of stuff outside the door giving her the idea that the stuff was abandoned by somebody, that is one of the things she said.  The boxes were too heavy so she contacted D2 to help her move them.

9.  The 2^nd defendant after arrest said that the 1^st defendant had placed items in the vicinity of the flat for him to move, that it was garbage to be thrown away.  He went to the 15^th floor, there was stuff lying next to the garbage and he had brought it down.  That is consistent with what can be seen on the CCTV cameras.

10.  He had come back later on 7^th September to move the fan.  He said the 1^st defendant had placed the items there.  He said he went up and down three times and the items were given to a driver downstairs.  He said he had never entered the unit.  The items were taken by the driver to Sham Shui Po and thrown away there.  On 7^th September, he returned to take away and throw away the fan.

11.  In the hearing, all the evidence was agreed or undisputed.  PWs 1 to 3 were called, they supplemented their statements.  Their evidence was not challenged.  The video-recorded interviews with both defendants, which were exculpatory, were admitted by consent.

12.  Both defendants are of clear record.  Neither defendant gave evidence, that is their right.  No adverse inference can be drawn from that decision.

13.  The legal framework to approach this, the prosecution must prove their case beyond reasonable doubt.  The burden to prove remains on the prosecution throughout.  The defendants are charged with burglary.  Prosecution must prove that the defendants entered the relevant premises as trespassers, namely the Flat AA on the 1^st floor of Kingswin Industrial Building and therein stole the items listed in the particulars of the charge and the same allegation has been made against the 2^nd defendant on the 2^nd charge for the 7^th September.

14.  The 1^st defendant has claimed throughout that she thought the property was abandoned.  Property that has been abandoned cannot be stolen. Even if property has not been abandoned but the defendant honestly believes that it had been, then they cannot be convicted of the theft of property as there would be no dishonesty.  It is noted that in relation of this the court must consider that an honest belief can be unreasonable.  The court must consider the defendant’s subjective understanding of the situation.

15.  Both defendants have clear records.  The court must bear this in mind when assessing firstly their propensity for committing an offence of dishonesty and the credibility of any explanation offered by them.  Neither defendant gave evidence and no adverse inference can be drawn from that decision.  As I have already indicated, the evidence was largely agreed.  Prosecution witnesses were unchallenged.  The defendant’s video-recorded witness interviews were admitted by consent.

16.  The 1^st prosecution witness has said there were 11 MCX mining machines and 122 graphic cards, frameworks and cables in the flat as well as a fan to cool the equipment.  The mining, the MCX machines, were $24,000 each. The display cards were valued at $122,000.  The equipment had been switched off and most of the graphic cards had been packed away for them to be sold, however the MCX machines were left on.

17.  In P30, photo 15, when he was shown that, which shows the lift lobby and items being removed on a trolley, PW1 said the carton boxes he could see on the trolley, ie the vacuum cleaner boxes that were seen there, were probably the graphic cards that had been packed.  He said that also in relation to photo 16.  By photo 17, he could not be certain they were the boxes.  From this, by photo 19 he had identified a large fan and then in photo 20 he said he identified the boxes of graphic cards.  However, PW1’s evidence at the end of that was equivocal on what may or may not have been inside the boxes as he remembered packing them.  This makes it difficult to conclude to a criminal standard that the boxes necessarily contained the graphic cards that he said they probably contained.

18.  From this, it would appear that PW1 could only confirm that the defendants were instrumental in the removal of the fan and probably, but not certainly, the graphic cards through the lift lobby by use of a trolley.  Any other way, otherwise the court would have to rely on an irresistible inference to decide that the other items on the 1^st charge were taken through the lobby into the lift.

19.  The prosecution have charged both defendants with burglary, therefore it is incumbent on them to prove that D1 and D2 entered as trespassers into that premises, the flat where the goods had been originally located.

20.  D1 in her initial response to court she said “I saw the door of the flat was opened so I went inside to take a look out of curiosity.  As I saw that the stuff was placed there I thought someone might have abandoned them and I asked my friend, the 2^nd defendant, if he could come and collect them for sale”.  This appears on the face of it to be an admission to entry into the flat and taking some items from within there.

21.  The 2^nd defendant, I have already indicated, never admitted entering the flat.  He said the items were outside ready for collection.  The prosecution continued with this as a burglary charge against him on the basis that there was a form of joint enterprise and the 2^nd defendant aided and abetted the burglary.

22.  The 1^st defendant said other things in relation to what happened in that flat.  She said in relation to Flat AA in a later video-recorded interview, “The door was open, straight open”.  Then the question, “Well what was it like inside the flat at the time?”  The answer was “Messy in there.  There were a few boxes of stuff outside the door so giving me the idea, thinking that someone had abandoned the stuff”.  She said she saw some small fans in the flat.  Then she said “I saw there were some carton boxes, anyway, I collected them there”.  It is not clear from the 1^st defendant’s statement in its totality whether or what the items taken were, were they outside the door?  She talks of packing items to be cardboard boxes but the location of the boxes is assumed.  D1 is equivocal as to whether the items taken on 4^th September and the ones taken by the 2^nd defendant on the same date were taken from inside the flat or from by the door or close by the door.  This part of the evidence requires some detailed consideration in assessing the overall issues in the case.

23.  The issues are as follows.  The uncontested facts present a perplexing picture.  The premises were locked in August and when opened on 15^th September were still locked with no signs of entry.  The keys are kept by PWs 1 to 3.

24.  The 1^st defendant says the premises were open.  It is not, I hold, credibly alleged that she broke into the premises.  There is no sign of entry other than by unlocking the door.  The evidence appears to point in the opposite direction that the premises had been opened with a key.  If that part of her account that the premises were open when she got there is accepted then it would appear that someone else, certainly not any of the prosecution witnesses or the defendants, had been in a position to unlock the door or would later be in a position to secure the door again before PWs 1 to 3 returned on 15^th September.

25.  PW1’s evidence could also tell us that it is possible or probable that D1 and 2 removed the boards and they definitely removed a fan.  However, it is not known if any of the other items, ie the missing mining machines or the other boards, were in the premises when D1 went to look inside.

26.  It does appear, and it can be inferred from this evidence, that there had been some intervening entry into the premises.  This leaves the issues presented as follows.  Did D1, when she entered that flat, know that at entering the flat she was acting in excess of what must have been a general permission that was given to her as a resident of the industrial building or was she being reckless as to whether she would exceed that permission?  And secondly, given the 1^st defendant honestly believed the items taken by her were in fact abandoned.

27.  And as far as the 2^nd defendant is concerned, the issue is much simpler.  Did the 2^nd defendant, when assisting her on doing that honestly believed the goods were abandoned as D1 had told him.

28.  The resolution to the issues as follows.  The 1^st defendant is agreed to be a resident of a nearby unit on the same floor.  She must have, although there is no evidence of this, general permission to enter the building and use the common areas of that building.  She admits entering unit AA, the door was open, there were no restrictions to entry.  It is left to be inferred by me, and it can be assumed but not necessarily proven, that she had no general permission to enter but again I say there is no specific evidence on this issue.  She said that in her interview that she believed there was no occupant of the flat at that time as everything was switched off.  The evidence shows that she, by her own admission, that she physically entered the premises but I do not necessarily find that in these circumstances the evidence can show to a criminal standard that she knowingly or recklessly trespassed within them.  The evidence is silent on this.  I do not consider in these circumstances there is sufficient evidence on this issue to reach a conclusion as to whether she was knowing or reckless as to her trespass in that room given the general permission granted to her to enter the building and move through it.

29.  I find on the evidence I have before me the charge of burglary cannot necessarily be sustained.  The case can, however, be considered by way of the statutory alternative of theft.

30.  Now the second question is, did the defendants honestly believe the items she took to be abandoned or are the defendants, simply put, are the defendants acting dishonestly when they took those items that were found there?

31.  The 1^st defendant in her initial statement, she says she thought the items she took were abandoned.  Later on, however, she says when discussing the 2^nd defendant’s role “No one actually told me the items were abandoned.  I thought maybe someone had moved them out so they were left behind abandoned then I can say that greed came.  No third party told me explicitly that these items were abandoned.  I then collected some items without permission”.

32.  By this, the defendant is saying she knew by her experience or appears to be saying she knew by her experience you cannot just assume items are abandoned if they are left in the common areas inside a private building.  In these circumstances an inquiry should be made or in other words when taken overall it would appear from this part of her evidence she did not have what could be described as an honest belief that the items were abandoned.  She was at least reckless to that fact.

33.  The defendant has not caused the, in respect of the 1^st offence, a doubt as to whether she was dishonest.  I find I would have to convict her of theft on the 1^st charge on the basis she did not have an honest belief that the items were abandoned.  However, if in convicting her of theft the question is theft of what?  The fan certainly had value and can be seen to be taken.  No certainty can be reached as to the other items.  We know there are a number of boxes that possibly or probably but not certainly contained the graphic cards.  The word “probably” used excluded the certainty necessary for a criminal conviction in respect of those other items.  The defendant can be convicted on the theft of the fan and boxes of unknown items of unknown value.

34.  The case against the 2^nd defendant can be resolved very simply.  The 2^nd defendant was asked by the 1^st defendant to dispose of garbage.  He was told it was abandoned.  He is himself under no duty to make enquiries.  His reward was to receive monies from their sale, if any, he says there was no money received.

35.  The 2^nd defendant never said he entered the unit.  The 1^st defendant confirms in his statement that she asked him to remove the items and said that the 2^nd defendant himself had no idea.  The 2^nd defendant simply moved items he was asked to move.  No inference can be drawn that the defendant moved these items with a dishonest intent.  He must be acquitted of both charges.