HKSAR v. SAYCO MARICRIS TAGUBA

DCCC 266/2022

[2023] HKDC 497

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 266 OF 2022

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REASONS FOR VERDICT

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1.  Defendant Ms Sayco is charged before me with one charge of Burglary, contrary to section 11(1)(b)(4)  of the Theft Ordinance, Cap 210. Particulars are that she, on 1 November 2021, in Hong Kong, having entered as a trespasser part of a building known as Room C, 8 Floor, Nos 148-154 Nam Cheong Street, Sham Shui Po, Kowloon, stole therein two watches, two iPhones, one power bank and one laptop computer.

2.  She pleaded not guilty rendering a trial necessary.

Prosecution case

3.  Simply put, on 1 November 2021, in the evening, the defendant, being a previous sub-tenant of PW1 (who himself was a tenant), came back to the premises as a trespasser using keys which had not been returned after her own departure, and stole therein the items listed in the charge.  These items were among items which had yet to be removed by PW1 from the premises because PW1 was himself in the process of moving house.  In fact, PW1 was no longer living there and went back only from time to time to remove items to his new home.

Defence case

4.  Defendant herself did not give evidence.  However, from her Video Recorded Interview and from the way in which the defence case was put to PW1, it appears that the defendant, though admitting presence for the purpose of removing her own remaining items, denied stealing anything from the premises.

Video Recorded Interview (“VRI”)

5.  The VRI was admitted as an agreed fact.  In it, the defendant admitted she went to the premises in the evening of 1 November 2021, but only to check and get her personal things including personal documents she hid under the (bed)  foam.  Defendant added that on that day, she had not fully moved out yet; that she was still at liberty to access the premises within the first week of November.  Defendant also admitted that the person whose images were captured by the CCTV system resembled her.

Issue at trial

6.  The main issue is the credibility of PW1.

Procedural history

7.  Prosecution called a total of 3 witnesses, namely the alleged victim PW1, the arresting cum investigation officer DPC 26559 (PW2), and lastly police interpreter 80300 (PW3).  The last witness was called at the request of the defence.

8.  Before the close of the prosecution case, prosecution applied to slightly amend the Opening (document entitled “Amended Summary of Facts”). Application was granted without objection.

9.  After prosecution closed its case, defence made no half-time submissions.  I ruled there was a case to answer.  Defence applied for an adjournment lasting several weeks in order to arrange for a witness to attend court.  Bearing in mind case management needs, I refused the application.

10.  Defence then applied to have PW1 recalled for examination on two issues.  Prosecution objected.  Having heard submissions, I allowed the application.

11.  After PW1 finished giving the additional evidence, defence was ready to begin their case.

12.  Defendant elected not to testify but called one witness DW1 who is the manager of Customer Service Department of Suning Electronic Goods Store.  I reminded myself the mere fact that a defendant elected not to give evidence means nothing and should not in any event be held against him/her.

13.  After the close of the defence case, both sides made oral submissions. I bore them fully in mind in my deliberation though they will not be repeated here.

My consideration

14.  I reminded myself the burden of proof is on the prosecution throughout, the standard being beyond a reasonable doubt.  The defence has to prove nothing and least of all the defendant’s innocence.

15.  I bear in mind the defendant is a person of clear record and the dual advantages which she enjoys as a result.

16.  Having considered the whole of the evidence, I have to say I do not believe PW1’s evidence both on credibility and reliability grounds.  The reasons are as follows:-

(a)  In chief, PW1 described the defendant as merely another Filipino and a tenant, not his friend; under cross-examination, he admitted the defendant was his friend as early as November or December 2019;

(b)  In chief, PW1 said in June 2020 when he moved from the Prince Edward flat to the Sham Shui Po flat (the “subject flat”), he was not yet married but only had a girlfriend (later wife); under cross-examination, he said he first met his wife in January 2021;

(c)  PW1 said he received 5 keys of the subject flat from the agent when moving in; the tenancy agreement (P20)  states that he received a total of 9 keys;

(d)  PW1 said he lost one iWatch in the incident but his statement (P24)  states he lost two;

(e)  PW1 said he lost an Airpod in the incident which was neither mentioned in his statement nor in the Charge;

(f)  PW1 said his lost iPhone 11 Pro Max was originally in a box which was shown to a police photographer; PW2 (DPC 26559)  the police photographer denied this;

(g)  PW1 said his lost iWatch was originally in a box which was likewise shown to a police photographer; PW2 likewise denied this;

(h)  In chief, PW1 said he returned the rental deposit to the defendant and collected the set of 3 keys from her all on 27 October 2021; under cross-examination, the date suddenly changed to 28 October 2021;

(i)  In chief, PW1 said before he left the subject flat on 1 November 2021, he checked all the items (later stolen)  and they were in order; under cross-examination, he said that on that day he had only opened the iPhone 12 box to check that the phone was there; and he did not open the iPhone 11 Pro Max box to check, nor the iWatch box, nor the Airpod box; the last time he checked these latter boxes for confirmation of contents was in mid-September 2021;

(j)  The one IMEI number of the allegedly stolen iPhone 11 Pro Max as stated in the receipts produced by PW1, namely P22A and P23B, is different from either of the IMEI numbers of the supposedly same phone as stated in PW1’s witness statement P24;

(k)  PW1 initially denied or did not remember borrowing $3,500 from the defendant in March 2021; but when shown some WhatsApp message (D3 p5), he agreed he did so borrow;

(l)  In evidence, PW1 said the defendant moved into the subject flat in June 2020; but in his witness statement P24, he said she moved in in July 2021;

(m)  As to how the 4 IMEI numbers of the two iPhones came to be recorded on PW1’s witness statement P24, PW2 the statement taker said PW1 read off these numbers from the latter’s hand-held phone; PW1 on recall however said (initially)  that he brought the two relevant iPhone boxes to the police station, but later reversed his evidence by saying that he did not so bring; what’s more, PW1 said that 1-2 days before the statement was taken at the police station, the police came to his home to take photo(s)  of all the boxes including the boxes of iPhone 11 Pro Max, iPhone 12, iWatch and Airpod;

(n)  PW1 said that the box containing the allegedly stolen iPhone 11 Pro Max remained in the 3^rd plastic tray from the top in photo #15 in P14; PW2 said he checked that place but could not find it; and

(o)  PW1 said that the box containing the stolen iWatch remained in the 4^th plastic tray from the top in photo #15; PW2 said he similarly checked the place but could not find it.

17.  With PW1’s salient evidence totally rejected, the remaining partially incriminatory evidence, namely the CCTV footage and the VRI contents, is not sufficient to bring about a conviction.

18.  For completion, I should perhaps just add one point.

19.  There was set up in the living room of the subject flat a CCTV system which was said by PW1 to be connected by internet to PW1’s mobile phone. According to his evidence, normally whenever the system detected a movement in the living room, it would send an instant notification to PW1’s mobile phone. He said that at about 8:49 pm on 1 November 2021, there was such a notification upon which he checked on his phone but found everything was normal and there was no one inside the living room.  When PW1 checked on his phone again sometime after 10 pm the same day, he found the connection was cut off at 8:50 pm.  That time, he thought it was just an internet connection problem.

20.  PW1 said this is the first time that the CCTV was disconnected although it has happened 2 to 3 times previously that he could not see the CCTV image because of connection problems.  PW1 said he decided to do nothing on 1 November and he did not return to the subject flat until 7 to 8 pm on 2 November.  Upon entering, he found the CCTV power and WiFi cables were disconnected.

21.  Assuming for the moment that a burglary (or at least a theft)  did take place at the subject flat.  It could have taken place prior to 1 November 2021 (insofar as the items not checked to be in order as at 1 November are concerned).  In this connection, I note that PW1 said from 29 October 2021 onwards, all the room doors including PW1’s room door were left open.  This scenario is possible because there is evidence to suggest the CCTV body-movement detection and/or the notification system(s)  could be faulty at times.

22.  Again making the same assumption as before, there is also the possibility that the burglary (or at least the theft)  could have taken place between 2215 hours on 1 November 2021 and 1900-2000 hours on the next day and was perpetrated by someone else (another former sub-tenant called Elyn/Ellen is a possible candidate because she was still keeping the keys to the subject flat after departure). This scenario is possible because the CCTV footage (P15)  showing the two elevators and the 8/F corridor (where the entrance of the subject flat was)  only ran up to about 2215 hours on 1 November 2021.

23.  In short, there are gaps in the prosecution case which allowed other reasonable inferences to be drawn which are inconsistent with the defendant’s guilt.

24.  Before leaving the matter altogether, I should say that there is objective evidence in the body of CCTV footage that puts the defendant in a rather suspicious light, namely, the defendant was shown to be reaching and leaving the 8/F by using the back staircase rather than through the normal means of using an elevator.

Conclusion

25.  For the above reasons, I found the defendant not guilty of the offence charged.