HKSAR v ABAD WILBERT MAGAN

DCCC 591/2021

[2022] HKDC 296

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 591 OF 2021

________________________

________________________

________________________

REASONS FOR VERDICT

________________________

1.  The defendant pleads not guilty to both charge 1 burglary, and charge 2 loitering causing concern. (Alternative charge to charge 1)   For charge 3, breach of condition of stay, he is convicted on his own plea and admission to the summary of facts.

THE PROSECUTION CASE

PW1 - Ms Tang

2.  On 15 October 2020, at about 8:20 at night, PW1 was about to do her laundry and she went up to the roof of her house (“House 26”), when she got to the top floor she pushed open the door leading to the roof area, she felt something was blocking the door, so she pushed a bit harder and all of a sudden, she saw this South Asian looking man standing behind the door, this man said sorry twice to her and ran away from the rooftop, and she screamed.  She told the court she felt scared and did not expect someone would appear on her rooftop.

3.  Her father went outside to look for this male, and she was told her father caught someone in the house next door. (“House 3A”)

PW2 - Mr Tang

4.  PW2 was the father of PW1, he agreed that he knew there were Pakistan looking males living in House 3A, he also agreed that sometimes they would park their bicycles too close to his house, and he would tell them to move their bikes, they would move their bicycles when asked.

5.  PW2 denied he had threatened them to call the police over the bicycles parking issue.

PW3 - Mr Mui

6.  PW3 resided at one of the subdivided units in House 3A, it was about 9:00 at night, he was taking a nap inside his room, and his door was not locked.  While he was dozing off, he felt someone was nearby and he opened his eye and saw the defendant was sitting next to him.

7.  PW3 asked the defendant who he is and what is he doing. PW3 remembered the defendant mentioned he was waiting for his friend next door to open the door for him in cross examination.  He knew his next door neighbor’s name was Malik.

PW4 - PC 1095

8.  He attended the scene on the same night to investigate a case of burglary.  He found the defendant was outside unit 2 of House 3A, he made inquiries both with the Defendant and PW3.  Questions were asked by PW4 to the defendant in both simple English and Punti, as a result, the defendant mentioned he was looking for a friend, he had been to the roof of House 3A, he heard someone shouted at the adjacent house (House 26)  and that he was scared and took the stairs and went outside unit 2.

9.  At the end of the investigation, he decided to arrest the defendant for burglary, and he declared arrest on the defendant and cautioned him in Punti, but the defendant replied in a foreign language which he did not understand and he believed it was in Tagalog language, so he brought the defendant back to the police station for further handling.

PW5 - DPC 24287

10.  He went to the scene at about 2310 hrs the same night for further investigation.  He seized a pair of sneakers, but he could not find any CCTV or anything suspicious.

PW6 - PC 22403

11.  He viewed the CCTV installed outside House 26 and requested PW1 to make a copy of the footage to the Police.  He said he watched the footage for a short period of time and found nothing of value.

ANALYSIS OF THE EVIDENCE

12.  I bear in mind the burden of proof is on the prosecution throughout.  The defendant elects not to testify and call any witness, that is his right, no adverse inference is to be drawn against him.  I am told the defendant has a clear record, good character directions apply.

13.  Although the defendant did not testify, as could be seen from the case put to the witnesses, a male (the defence neither admits or denies it was the defendant)  at first appeared on the roof of House 3A, PW1 was on her own roof (House 26), she made a series of gestures as if offering food to this male and gestured this male to come over to her, when the male got to her roof, she went back inside the house and stood behind the door and shouted, that male said sorry and ran away.  It was suggested to PW1 that was a trap set for the defendant, she was not happy over the parking issue caused by those South Asian males. (which was denied by PW1)

14.  I find all the prosecution witnesses are honest and trueful, they have tried their best to tell the court everything that they know.

15.  Defence has in her written submission criticized the evidence of both PW1 & 2.  The court is asked to compare PW1’s evidence in court as against the prosecution opening and that of PW2.

16.  Defence counsel complaints about PW1’s evidence in court differed from that of the prosecution opening.  For example, PW1 said the male said sorry twice in court as opposed to 3 times in the opening.  In the opening, the prosecution never mentioned the male ran away as opposed to what was said by PW1 in court.

17.  These, first of all, are very minor discrepancies, whether the male said sorry for 2 or 3 times, or PW1 had described the male ran away in court contrary to the prosecution opening, I don’t see how it affects the credibility or reliability of the witness.  Secondly, the prosecution opening sets out the case for the prosecution in general, not in minute detail, I don’t see how these minor discrepancies again has any impact on the witness or the prosecution case.

18.  It was further submitted that PW2 had never said he went up to the roof contrary to what PW1 said in court that her father went up to the roof when she screamed.  Again, I consider this is a very minor discrepancy, when PW1 screamed and told her father someone was on the roof, what was important to PW2 was to quickly locate that person, whether he went up to the roof must have been a very trivial thing to him.

19.  As to the identification evidence, it is correct that PW1 and PW2 did not identify the defendant was the one who appeared on the roof, the only evidence that the defendant was the one on the roof comes from the admission of the defendant.  As to the admission made by the defendant during the investigation and/or the video record of interview, defence counsel criticize both the fairness and accuracy of the admission.

20.  For the oral admission, its voluntariness was not challenged, it was made in the course of investigation, but it does not say the defendant was on the roof of House 26, it only mentioned he was on the roof of house 3A.  I do not consider this is an admission given the charges he is facing, besides, it was proper for the police officer to investigate the matter as it was in an initial stage and he needed to gather further information before he could decide what to do next, that said, in my view, caution was not necessary at that stage.

21.  For the VRI, after reading it myself, it is not difficult to see where the problem lies, the Tagalog interpreter surely was not translating it properly, sometimes, he missed out a large part of what the defendant said and did not translate it, on other occasions, he mistranslated what was said by the defendant. (Extra effort was made by the defence to go through and corrected the mistakes made in the VRI, the prosecution was in my view, acted with fairness and agreed to the corrections made by the defence, a corrected version is now being produced in court as exhibit D3.)

22.  Bearing in mind the defect in the VRI and having read through the corrected version, I do not consider the missing translation or mistranslation does in any way being unfair to the defendant or misled him into saying anything that he did not intend and did not want to say.  It does in no way jeopardize or compromise his version of events as to why he was on PW1’s roof, more importantly, those missing and mistranslations did not relate to the admission made that the defendant was on the roof of House 26.

23.  I do place full weight on his admission that he was the person on the roof of House 26, for the exculpatory part of his VRI, I place no weight at all.  R v Sharp [1988] 1 WLR 7considered.

24.  Besides, the explanations given by the defendant as to why he was on the roof of House 26 were plainly unbelievable.  For example, he said he saw PW1 made a series of gestures as if asking himself to go over and offered him food. It is difficult to imagine why the defendant would risk by climbing over to PW1’s roof, even though the gap between the 2 houses was small, but why took this unnecessary risk.  Even more so, he could have simply asked PW1 to ascertain whether she was offering him food, why didn’t he, why going through all these troubles when it was plainly unnecessary.

25.  Having considered all the evidence, in particular, having rejected the defendant’s explanation.  However, I am unable to conclude that the burglary charge is made out.  I have looked at the evidence in details, the defendant climbed over to roof of House 3A from House 26, as pointed out by the defence, no ransacking on the roof, the defendant was not in possession of any weapon or tool, (when he was seen by PW1 or PW3, or upon his arrested), when the time PW1 discovered the presence of the defendant, the defendant was not trying to open the door of PW1’s roof, there is no evidence suggesting he was prising open any window or door at the material time, he was only behind and blocking the door leading to the roof.

26.  Without further evidence in support, I simply cannot say for certain that the only inference to be drawn against him as to his ulterior intent was to steal, causing grievous bodily harm, rape or causing damage to the building. The prosecution has failed to prove the burglary charge.

27.  The defendant went to the roof of House 3A uninvited, which was PW1’s property, he was behind the door leading to the roof, when the door was opened by PW1, and it was blocked by the defendant, the presence of the defendant on the roof and the acts of hiding behind and blocking the door when opened, in my view must be one of loitering.

28.  As to causing someone reasonably to be concerned of her own safety or well-being element.  PW1 said in her evidence she was concerned about her safety and well-being as she did not expect anyone would be on her roof. (Subjective test)  Secondly, one moves on to the objective test, imagine walking up to your own roof and seeing an unknown person there behind the door and blocking your way out, would it not be reasonable to fear what this person is about to do and what he might do to you, and whether the person here will do you harm.  Obviously, it is reasonable to fear one’s safety and well-being given these circumstances.

29.  I find the prosecution has proved all elements of the offence beyond reasonable doubt, the defendant is therefore convicted of loitering causing concern.