HKSAR v. LAM TAI TAK

DCCC1145/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1145 OF 2012

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BETWEEN

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REASONS FOR VERDICT

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Overview

1.  The defendant pleaded not guilty to one count of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

The prosecution case

2.  At the material time the defendant was a security guard in the employ of the management office of the residential estate located at 37 Repulse Bay Road Repulse Bay Hong Kong (“the Estate”).

3.  At about 9 am on 2 September 2012, PW1, a Filipino maid, found the defendant inside the children bedroom of Flat B, 11th Floor, Tower 1 of the Estate (“the Premises”).

4.  It is alleged by the prosecution that the defendant, as a trespasser, intended to steal two HK$500 banknotes and a supermarket voucher from PW1’s wallet which was placed on the desk in that room.

5.  It is however averred by the defence that the defendant found the door of the Premises left ajar when he was patrolling on 11th Floor.  Whilst he went in for a check, an unknown Chinese male suddenly ran out and fled.  At that juncture, PW1 appeared and accused him of stealing.  The defendant denied that he had intent to steal despite his presence inside the Premises.

6.  The prosecution called a total of 10 witnesses but most of them were tendered for cross-examination only.

7.  The prosecution case can be succinctly summarized as follows.  At about 9 am on 2 September 2012, while PW1 was alone and doing household works in the kitchen, she heard a “click” sound from the main door.  She went out and saw the defendant, who was standing next to the desk in the children bedroom, holding two HK$500 banknotes (Exhibit P2), one “Wellcome” supermarket $50 cash voucher (Exhibit P3) and her wallet (Exhibit P4).  Upon seeing that, she shouted at him.  He then made a gesture of silence by putting his finger in front of his lips and whispered “Shuu”.  He also put the money back into the wallet and placed them on the table.  A report was made to the police.  On the night before the incident, PW1 had checked the wooden doors which were properly locked.  There was indeed a spare or “backup” key (Exhibit P1) placed underneath the doormat outside the Premises. After the incident, Exhibit P1 was found under the doormat intact.

8.  At about 9:30 am on the same day, police officers namely PW4 to PW6 arrived at the scene in response to a “Dispute” report.  At about 9:36 am, PW4 cautioned the defendant and made enquiry with him.  Under caution, the defendant said that when he was carrying out routine patrolling, he found that the door of the Premises was not closed properly.  Out of curiosity, he went inside to have a look.  Suddenly an unknown Chinese male ran out and bumped into his right shoulder.  That male then fled into the rear staircase and disappeared.  He walked into the children bedroom from where that male came out.  He then saw a wallet on the desk in the children bedroom.  He also found that some banknotes appeared to have “slipped out” and he put them back into the wallet.  At that point in time, PW1 shouted at him.  He further described that that Chinese male, aged about 30, was of thin built and wearing a blue-coloured T-shirt and a pair of blue jeans without spectacles.  Later the defendant was arrested for an offence of burglary.  Under further caution, he said that “I have already said what I wanted to say just now.  I have nothing to say.”

9.  Later PW7 DPC 10157 drew a sketch of the location (Exhibit P20) and took 11 photos at the scene showing the layout of the Premises and the corridor leading to the rear staircase (Exhibit P21).  At about 7:15 pm on the same day, PW7 conducted the 1st cautioned video-recorded interview during which the defendant maintained the same account of events as he did at the scene. (Exhibit P14(1)-(4)).

10.  The 2nd cautioned video-recorded interview was conducted by PW8 on the following day.  Again the defendant gave the same version of events (Exhibit P17(1)-(4)).

11.  PW2, who became the Head of the security team in February 2013, was the colleague of the defendant.  She confirmed that the Estate was under extensive renovation in September 2012 and no general guidelines were issued to security guards for handling scenario which was alleged by the defendant.  PW3 was the security guard on duty at the guard post on the podium at the time allegedly the offence took place.

12.  According to PW9 and PW10, the defendant’s fingerprint was not found on the subject matter, the wooden main door, bedroom door and the desk on which the wallet was placed.  The fingerprint impression examination report is Exhibit P10.

13.  The voluntariness of what was said under caution and in the two cautioned video-recorded interviews was not challenged.

The defence case

14.  The defendant elected to give evidence and called Dr Ng, a clinical psychologist, and Dr Chiu, a psychiatrist, to testify on his behalf.

15.  The defendant now aged 41, married with two children aged 4 and 6 respectively.  He was educated up to F.1 and an underachiever in school.  After quitting school, he worked as an apprentice in carpentry for less than one month and in the kitchen of a Chinese restaurant for another two weeks.  He then worked for a newspaper stall.  Later he also took up a part-time job as night shift lorry attendant.  In about 2009, he obtained a security guard licence and joined Hong Hip Security Company.  He was assigned to the Estate in 2011.

16.  In his evidence, he confirmed the account of events voluntarily given under caution was true and correct.  He also testified that when he went into the Premises, he saw the unknown man appeared to have thrown something onto the desk.  After that man had fled, he was dazed for a few seconds and did not know what to do.  He then went into the bedroom, the direction from where that man came out, and realized that there was a wallet on the desk.  He did use his hand to “pull out” the banknotes inside the wallet “a little bit”.  When he heard a noise from behind, he put the money back.  When he turned around, PW1 was standing at a distance of about 6 feet from him.  He tried to explain the situation to PW1 in Cantonese but she could not understand.  PW1 therefore reported the matter to the management office.

17.  The defendant was assessed by Dr Ng on three occasions.  On the Wechsler Adult Intelligence Scale- III, the defendant attained a Full Scale IQ of 81 which means that he is functioning in the Borderline Handicapped spectrum of intellectual ability.  The defendant’s percentile rating is 10% which means, statistically, his overall intellectual ability is inferior to 90% of adults of his age.  In particular, his verbal ability is significantly impaired with a percentile rating of 2% which means that his verbal intelligence is inferior to 98% of adults of his age.  Furthermore on the Vineland Social Maturity Scale, his overall social competence is equivalent to that of a 14 to 15 year old boy. Dr Ng’s expert report is exhibited as D8.

18.  According to the assessment of Dr Chiu, the defendant is diagnosed to be suffering from the Inattentive Type of Attention-deficit Hyperactivity Disorder (“ADHD”) and Expressive Language Disorder.  Dr Chiu’s expert report is exhibited as D9.

Directions

19.  I bear in mind that the burden is on the prosecution to prove every element of the offence beyond reasonable doubt.  The defendant has no burden to prove or disprove anything.  If his evidence is true or maybe true, the benefit of the doubt should go to him.  I also bear in mind that his reaction under caution was consistent with his claim of innocent.

Evaluation of the evidence

20.  In assessing the testimonies of all prosecution witnesses, I have carefully considered all the evidence, exhibits, their demeanour and counsel’s submissions.  It is suggested in cross-examination that PW1 had motive to frame up the defendant because of the outstanding shuttle bus fares issue.  The fact was that residents and occupants of the Estate can use the shuttle bus service by producing valid bus tickets which were available for sale at the management office.  A security guard will make a record of the particulars of any passenger who failed to produce a ticket.  It is said that the defendant had jotted down PW1’s particulars on a number of occasions and the outstanding fares had been accumulated up to a few hundred dollars.  I find that the defendant’s assertion of “revenge” is wholly unfounded.  There is no evidence that PW1 shall be personally liable for those outstanding fares.  She was indeed a domestic helper in the employ of a resident of the Estate.  Therefore whether she was obliged to pay the shuttle bus fares was dependent upon the agreement between her and her then employer.  Apparently outstanding fares would be charged to the account of that residential unit.  Also she was no longer working at the Estate and the management office had never taken any steps asking her to settle those fares.

21.  In cross-examination, it was also put to PW1 that her testimony was inconsistent with her written witness statement.  The attack was leveled at the relevant parts of her witness statement regarding whether she did see the defendant took out the money and whether she asked for the reason why he took out the money.  Bearing in mind that the incident happened in a split of second and giving evidence is not a test of memory, I do not find that those discrepancies are material which cast any doubt on her overall evidence.

22.  Having considered all the circumstances, I find that all prosecution witnesses are honest and reliable.  I accept their evidence.

23.  Insofar as the evidence of the defendant is concerned, it is submitted by the prosecution that the alleged unknown male was nothing more than a fiction and it was an attempt to explain his unexplainable presence inside the Premises.  It is also suggested that if he really found the door of an apartment left ajar, he can simply close the door or make a report to the office by his walkie-talkie (Exhibit P7).  The defendant’s assertions, as submitted by the prosecution, are implausible.  At first glance, these comments appear to be valid and I do see the force of them.  On careful examination of all the defence evidence and scrutiny of all the circumstances, these comments might not be as strong as they appear to be.

24.  In this case, as conceded by the prosecution, there were no signs of any prizing of the main door.  At the scene, the defendant was searched by PW4 who found no prizing tools or duplicate keys.  None of the 9 keys (Exhibit P6) found on the defendant match Exhibit P1.  A further search was conducted at the defendant’s locker at the office and his home but again no house breaking tools whatsoever were found.

25.  Given those findings, it is the prosecution case that the defendant probably used the spare key hidden under the doormat to gain entry.  If this is the case, it begs the question of why did the defendant decide to break into the Premises when PW1 was there?  In cross-examination of PW1, she agreed that her employer, the tenant of the Premises, had failed to settle the rent and had already returned to Korea for good.  It is not in dispute that the landlord had already informed the management office about that and requested to report if there was anything being removed from the Premises.  Also her employment contract had been terminated in August but she was allowed to stay at the Premises “as long as she wished”.  On 28 August 2012, the defendant was assigned to take photos when workers were moving a piano out of the Premises. Exhibit D7 (19) which was taken by the defendant clearly depicts that PW1 was there.  In other words, the defendant must know that PW1 was probably living at the Premises.  As a security guard, he should have no difficulty in knowing whether she had gone out.  If he was aware of the existence of the spare key, he should have plenty of opportunity to make sure that no one was there when he broke in.  In the event that he wished to ascertain if the Premises were vacant, he could simply press the door bell before breaking in.  Bearing in mind the fact that he was in uniform and had numerous contacts with PW1, he should be aware of the risk that he could be easily identified by her if he was caught.

26.  Exhibits D1 to D6 show that the layout of each levels whilst Exhibits D7(1)-(13) depict different areas of the podium and the locations of CCTV cameras.  According to those photos, the Estate was under renovation at the material time.  Scaffoldings, safety nets, renovation materials and tools were found all over the place on podium.  PW2 confirmed that some of the CCTV cameras were not functioning.  PW3, who was the security guard on duty at the guard post on the podium at the material time, said that he left the post for about 8 minutes for patrolling at about 9 am.  In the circumstances, if the alleged fleeing man did exist, he could possibly leave the Estate without a trace.

27.  Fingerprint impressions were lifted from the main door, the door of the children bedroom, the desk and the subject matter.  Apart from the fingerprints of PW1, an unidentified impression was also found on the pane of the bedroom door.  In essence, there was no fingerprint evidence against the defendant.

28.  Exhibit P21(6) depicts the items placed on the desk at the material time and they included a mobile phone, books, wallet and some personal belongings. Upon seeing those items, the defendant must have realised that there was occupant inside the Premises even if he had allegedly been told otherwise. Under these circumstances, will he continue to take out the money from the wallet?

29.  Apart from the circumstantial evidence, the disposal of this case pivots upon the truthfulness of the defendant’s assertions.  Apparently he gave consistent accounts under caution at the scene and in subsequent video-recorded interviews.  Having viewed those interviews, whilst it is true that the defendant was able to communicate with the officers in a meaningful manner, he however appeared to have difficulty in understanding some simple concepts like “station” and “purse” at the same time.  As explained by Dr Ng, the defendant would have difficulty in understanding abstract concepts if he was not put into the right context.  As pointed out by Dr Ng, all interviews were conducted in a closed-ended fashion which means that the defendant was guided to focus on particular topics and it is evident from the fact that sometimes the officers had to offer assistance to him in comprehending questions.

30.  In their evidence, both Dr Ng and Dr Chiu explained that given the intellectual condition of the defendant, his response to unexpected situation could be erratic.  This is the result of poor vigilance, erratic judgmental ability and the proneness to act before he thinks.

31.  In cross-examination, it is suggested that the defendant might have deliberately underperformed in the tests as he had never received similar consultations prior to the date of the offence.

32.  In this regard, Dr Chiu indeed had conducted 10 sessions of consultation with the defendant.  Dr Chiu, who has 23 years of experience in psychiatry holding various Honorary Posts as Lecturers and Consultants in a number of universities in Hong Kong, has carefully examined the personal and family background of the defendant.  It was reported that the defendant was raised in a manual working class family.  His younger sister used to study in special school and suspected to have intelligence problem.  His elder son now aged 6 is diagnosed to be suffering from ADHD who is receiving out-patient treatment. His younger son now aged 4 is having speech impairment problem and receiving treatment at Prince of Wales Hospital.  Dr Chiu explained that 75% cases of ADHD are hereditary statistically.  Also the concept of ADHD was less popular in the past and there were a lot of patients undetected.

33.  As to Dr Ng, he has over 20 years experience in psychology and was the Head of Clinical Psychology Services, Prince of Wales Hospital before he was in private practice.  In his evidence, he explained in details the methodology employed in each tests and had carefully analyzed the performance of the defendant.  Apparently the defendant did perform well in some tests.  If the performance was a deliberate one, it begs the question of how could he know which test result would assist his defence in a court case?

34.  Having considered the evidence of Dr Ng and Dr Chiu, I find that their opinions and analysis are cogent and convincing.  Accordingly I attach full weight to their evidence.

35.  In this case, I must say that the behavior of the defendant was somewhat perplexing.  However given his intellectual condition and taking a global view of all the circumstances, I am not able to find that his assertions are plainly unbelievable.

36.  Without a doubt, the conduct of the defendant was highly suspicious. Whatever suspicion I might nurse, he is entitled to the benefit of the doubt.

37.  By reasons of the aforesaid, I therefore find the defendant not guilty of the charge and he is acquitted.