HKSAR v. IVANCHENKO DMYTRO

DCCC 655/2018

[2018] HKDC 1441

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 655 OF 2018

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REASONS FOR VERDICT

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1.  In these proceedings the defendant, Ivanchenko Dmytro, faced one count of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210. He pleaded not guilty to the charge.

2.  The prosecution’s contention was that during the early hours of a public holiday on 18 June 2018, the defendant entered as a trespasser into a container office inside a Kai Tak construction site with the intention of stealing therefrom.

3.  From the admitted facts (MFI-1) this court can deduce that the defendant took no issue that the defendant had trespassed into the container office, but disputed that there was intention to steal.

4.  The defendant is a 19-year-old young man with no previous conviction. The court accepts a person who has never been in trouble before is less likely to commit a crime and his testimony in court, and if he is minded is to give evidence, carries more weight than other persons who do not put their characters in issue.  Of course, that is on top of the general principle that the prosecution must prove every element of the crime, both actus reus and the mens rea, beyond all reasonable doubt.  The defendant has no duty to prove his innocence.

5.  There is no issue of law in this case.  Neither counsel on both sides elected to make submission on the law on burglary.

6.  The issue here is one of intention.  That can be inferred from the behaviour of the defendant and the surrounding circumstances, based on the facts found by this court.

The prosecution’s evidence

7.  During the evening between 17 and 18 June 2018, Mr Nasir Mohammad (PW1) was on duty inside a security booth from 7 pm to 7 am at the entrance of the construction site in question.  At about 5 am, he saw the defendant come in from the main entrance through the main entrance looking around, so he left the security booth and followed him. 

8.  He then saw the defendant open the door of the container office and close it behind him.  PW1 stood outside and observed through a gap of the half-drawn blinds at one of the windows.  He saw light from a torch and he saw the defendant open a drawer of a desk and search amongst its contents.  PW1 described the defendant’s action as “looking for something” but did not pick up anything.

9.  At this point, PW1 opened the door, whereupon the defendant pushed PW1 out of his way and started to run.

10.  After a chase of 7 to 8 metres, PW1 managed to stop the defendant, whereupon the defendant pleaded in English, “Let me go.”

11.  PW1 subsequently advised his supervisor and reported it to the police. 

12.  Under cross-examination, PW1 agreed that there was no gate set up at the entrance of the construction site, which was wide enough for trucks to drive through.

13.  The security cabin was not lit.  There was light nearby to make it visible.  I note from the pictures that the security cabin was a white structure with a blue top, a common and recognisable form used by security guards (see exhibit P3(1)).

14.  PW1 was adamant that the light inside the container office was from a torch.  His view was unobstructed when he saw the defendant pull open the drawers.  He agreed that the observation was only about 20 seconds.

15.  PW1’s evidence was simple and straightforward.  What he did was logical and he gave a clear explanation as to why he could observe the goings-on inside the container office.  He was unshaken under cross-examination.  I could not find any motive for him to make up evidence on matters he did not see.  I found him a credible witness.  I believed that the defendant had behaved exactly as described in PW1’s evidence.

16.  I also noted that PW1 had stated during cross-examination that the defendant had a mask made of cloth, a fact not mentioned in the police statement.  He explained that it was because the police did not ask him.  As it turned out, he was right, as the defendant himself admitted he was wearing a bandana at the time, although it was not clear how he wore it.  In any event, I did not find this fact significant; as the defendant’s presence was not disputed.

Other evidence

17.  Mr Tse Wai Ho (PW2), the person in charge of the construction site, confirmed that the lock of the container office had not been working for the last two months.  The door was simply shut. 

18.  PC25246 (PW3) was the arresting officer.  He gave evidence to the effect that the defendant told him the purpose of going to the construction site was to take pictures.  He had viewed the pictures in the defendant’s cell phone. He found no pictures of the construction site.  He also found a torch in the defendant’s bag.

19.  The veracity of their evidence had not been challenged.

20.  Having scrutinised their evidence, I accept the same.

The defence case

21.  After I had ruled that there was a case to answer, the defendant chose to give evidence.  He had a clear record and his evidence will be given more weight than those who could not boast of the same.  The defendant is a Hong Kong resident, a student.  He liked to play video games, “explore rooftops” and countryside, and had pictures taken and posted them in social media.

22.  Prior to the incident, he had drinks with two friends and had already taken a few sleeping tablets before that.  When he parted company with his friends, he felt slightly dizzy and drunk.  He took a minibus to Mong Kok to “explore” and somehow ended up in a construction site, where he wanted to “explore the area and take pictures”.  After he had entered the construction site, he felt someone was following him, he panicked, opened the door to the container office in an attempt to hide inside.  He had used the torch function of his cell phone to look inside the office, but he did not touch anything.

23.  When PW1 came in, he pushed PW1 out of the way in an attempt to escape. As PW1 was wearing slippers, the defendant had no idea who he could be.  In short, the defendant admitted trespassing into the container office but denied any dishonest intention of trying to steal anything.

24.  What the defendant said about “exploring” was unbelievable.  Presumably he referred to the rather unfortunate antics of people who visited exotic places, taking pictures of oneself, posting them in the social media in order to solicit approval of friends and peers.

25.  However, one can hardly imagine an ordinary construction site could qualify for such purpose.  Even if it were, one cannot explain why not a single frame of the construction site was found in his cell phone. 

26.  After the defendant realised he was followed, his response seemed to be illogical, not to mention irrational.  One could imagine that the normal response was to leave the construction site rather than trying to hide himself in a place where there was a lesser chance of escape.  Once inside the container office, one’s normal response in my view is to try to conceal his presence. Shining a light inside could hardly be an act for this purpose.

27.  As to the torch, the defendant’s explanation was that it was always there inside his bag.  I have examined the torch in court and found it to be a rather hefty item.  Why one would carry it in his bag for a continuous period without any thought of using it is not something that could happen in the normal course of life.

28.  The above were some of the unreasonable features in the defendant’s evidence.  Having considered his testimony as a whole, I found that these features constitute indicias that the defendant’s account was unbelievable.  I found that he was not a truthful witness and would discard his evidence insofar as it is inconsistent with those of PW1.

Findings

29.  My rejection of the defence case does not mean the defendant is guilty. One still has to turn to prosecution’s evidence to see if it is sufficient to prove the case beyond all reasonable doubt.

30.  That the defendant was a trespasser is beyond dispute.  The issue is what his intention was in the container office.  That can only be inferred from his behaviour. From the evidence accepted, it was clear that it was late at night, the defendant came into the container office with a torch, went inside, pulled open a drawer and shone his torch inside.  When confronted, he pushed PW1 out of the way in a bid to escape.

31.  In my view, there could be no other explanation as to his intention. The only conclusion beyond any reasonable doubt was that the defendant had entered the container office with an intention to look for something to steal.

32.  For the above reasons, I found the defendant guilty as charged.