HKSAR v. LUI SHUN YUK

[English Translation - 英譯本]

DCCC 518/2019

[2020] HKDC 1178

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 518 OF 2019

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REASONS FOR VERDICT

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The defendant faces one count of "burglary". He has pleaded not guilty to the charge.

Brief procedural background

2.  At the beginning of the trial, defence counsel Mr Wong applied to the court for certain questions of law to be dealt with first.

3.  Having considered the submissions from both sides on those questions of law, I made a ruling on the third day of the trial (16 November this year)  with reasons given. The reasons are now attached to this Reasons for Verdict as the Annex, hence I would not elaborate them here.

4.  After my ruling, Mr Wong applied to the court for plea to be taken again. The defendant still pleaded not guilty to the charge of "burglary", but he pleaded guilty to the charge of "theft". However, the prosecution did not accept and proceeded on the original charge.

Prosecution case

5.  On 27 February 2019, the car-washing shop in question ("the Shop")  was burgled. The stolen property included 1 notebook computer, cash of $110 and 93 sets of car-washing coupons (valued at $87,000 odd in total).  As revealed by the CCTV footage, a man went into the office of the Shop and ransacked therein at about 2:55 a.m. on that day.

6.  Apart from the manager Mr Chiu, the Shop had two staff members only (Mr Tse and the defendant).

7.  On 7 March 2019, Mr Chan, a friend of the manager Mr Chiu, disguised himself as a customer and went to the Shop. He purchased from the defendant one set of car-washing coupons and 2 coating coupons (valued at $980 in total). It was later confirmed by Mr Chiu that the car-washing coupons and coating coupons purchased by Mr Chan were stolen property.

8.  On 13 March 2019, PC 21050 arrested the defendant at the Shop for the offence of "theft".  Under caution, the defendant said, "Ah Sir, the car-washing coupons were stolen by me."

9.  Then the police officers searched the defendant’s private car (TB1153)  parked in the vicinity of the Shop and found in the car 33 sets of car-washing coupons and 1 notebook computer that had been reported lost. Having been cautioned again, the defendant said, "These things were previously stolen by me."

10.  At 8:35 p.m. on the same day, the police searched the defendant’s residence at Tsui Kwai House, Kwai Chung Estate and found 5 sets of car-washing coupons that had been reported lost. Under caution, the defendant said, "Ah Sir, these 5 sets of car-washing coupons were previously stolen by me."

11.  The defendant later admitted in his record of interview that one day in late February 2019, in the small hours, he opened the door to the office of the Shop with a key and stole therein. 

12.  The facts stated above were not disputed by the defence.

Defence case

13.  The defendant elected not to give evidence and did not call any defence witness. This is his right.  I draw no adverse inference against him in this regard. 

Assessment and analysis of evidence

14.  The burden of proof is on the prosecution to prove each element of the offence beyond reasonable doubt.

15.  The defendant’s act of stealing was not disputed by the defence. Now the only issue is: was the defendant, being a staff member of the Shop, a "trespasser" when he went into the office of the Shop in the small hours (non-business hours)?

16.  The prosecution called 2 witnesses (a staff member of the Shop Mr Tse and the manager of the Shop Mr Chiu)  to give evidence. Mr Tse was more experienced than the defendant and was the defendant’s trainer. Mr Tse would usually go to the Shop to stand in for the defendant when the defendant had his day off (Tuesdays). At other times, he would work at other car-washing shops of the company.

17.  Mr Chiu testified that both Mr Tse and the defendant were given the keys to the Shop for them to use in "opening the shop" and "closing the shop". He agreed that the company did not have any express rule which prohibited the staff from going into the office of the Shop in non-business hours. Mr Chiu also agreed that he did not expressly tell the defendant such prohibition.  He explained that this was common sense, and therefore it was not necessary for the company to state it expressly. Mr Chiu indicated that if he had to return to the office to get a document after work, he would also inform his supervisor by phone. 

18.  In R v Jones [1976] 1 WLR 672, the English Court of Appeal stated as follows:

"Taking the law as expressed in Hillen and Pettigrew v I.C.I. (Alkali)  Ltd. and in R v Collins it is our view that a person is a trespasser for the purpose of section 9(1)(b)  of the Theft Act 1968 if he enters premises of another knowing that he is entering in excess of the permission that has been given to him, or being reckless as to whether he is entering in excess of the permission that has been given to him to enter. Provided the facts are known to the accused which enable him to realise that he is acting in excess of the permission given or that he is acting recklessly as to whether he exceeds that permission, then that is sufficient for the jury to decide that he is in fact a trespasser[1]."

19.  I have also referred to the judgment of the High Court of Australia in Barker v The Queen [1983] 153 CLR 338.

20.  In the case, Mason J stated as follows, "It is a matter of determining the scope of the authority to enter, which the licence or invitation confers. If a person enters for a purpose outside the scope of the authority then he stands in no better position than a person who enters with no authority at all. His entry is unrelated to the authority.[2]"

21.  Both Brennan J and Deane J stated as follows, "What then are the circumstances in which a person, who has some permission to enter from the person in possession, enters premises as a trespasser for the purposes of [the offence of Burglary in Australia]? Common sense indicates the answer that entry will be as a trespasser if, as a matter of substance and fact, the entry in question is beyond the scope of the permission.… When the only suggested justification for entry is the permission of the person in possession, the question whether entry was as a trespasser involves no more than identification of the limits of the actual permission, the definition of the actual entry and the determination of whether that entry was within the scope of that permission. If the permission was not subject to any express or implied limitation which excluded the entry from its scope, the entry was not as trespasser. If the permission was subject to an actual express or implied limitation which excluded the actual entry, the entry was a trespasser. … the identification of the limits of the authority, like the definition of the actual entry for the purpose of ascertaining whether it comes within those limits, is essentially a question of fact to be determined by reference to the circumstances of the particular case.[3]"

22.  Mr Chiu indicated that the company had no express rule which prohibited the staff from going into the office of the Shop in non-business hours. Mr Chiu also agreed that he did not expressly tell the defendant such prohibition. Nevertheless, it is apparent that the only purpose of giving the defendant the keys to the Shop was for him to use in "opening the shop" and "closing the shop". The defendant was not the executive staff or senior management of the Shop. There was no need whatsoever for him to return to the Shop to work after getting off.  This point is obviously different from staying behind in the office to continue with the unfinished work after "closing the shop".

23.  As a juror, I do not see any lawful reason or purpose for the defendant to return to the Shop in the small hours. As to the evidence, the defendant admitted unequivocally in his record of interview, "Ah Sir, I remember that in the small hours in late February, I stealthily sneaked into the company[4]…" In other words, the only purpose for the defendant to go into the office of the Shop in the small hours was to steal.

24.  Applying the legal principles in Jones and Barker stated above, I am of the view that the defendant was given the keys to the Shop simply for work-related purposes. The scope of the authority for his entry into the Shop was limited to the business hours and operational need of the Shop.  Even though he was allowed to keep the keys to the Shop all the time during his employment, it did not mean that he was given the authority to go into the Shop at will in non-business hours or for non-business purposes. This is common sense.

25.  I will try to explain it with an example.  A part-time domestic helper A entered employment with an employer B for going to B’s residence to do cleaning work between 5 p.m. and 8 p.m. every Tuesdays and Thursdays.  Out of trust, B gave A the keys to the residence which could be kept in her custody all the time so that she could go in and out of the premises conveniently.  Even if B did not expressly tell A, it would be and should be understood by A that, save from the working hours and for work purposes, she could not go into B’s residence at will.  She could not go into B’s residence as she wished at other time or for other purposes. Even if A left behind her personal belongings (such as mobile phone and wallet)  during her work at B’s residence, she could not go into B’s residence to retrieve her belongings at will or at any time simply because she had in her possession the keys to the premises. I believe that any reasonable adult would take the view that A did not have the authority to do so.

26.  Based on the reasons and analysis stated above, it is my view that at the material time, the defendant did not have the authority to go into the office of the Shop despite his possession of the keys to the Shop. Therefore, he was a "trespasser".

27.  As the defendant went into the Shop as a trespasser and stole therein the property in question, the prosecution has proved beyond reasonable doubt that he committed the offence of "burglary". I find the defendant guilty of the charge.

Annex

This is an application of defence counsel Mr Wong, asking the court to determine whether the prosecution could rely on the evidence of Mr Chan Tai-man and PC21050.

Background

2.  On 27 February 2019, the car-washing shop in question ("the Shop")  was burgled.  The stolen property included 93 sets of car-washing coupons of various categories (valued at $87,000 odd in total). 

3.  Apart from the manager Mr Chiu, the Shop had two staff members only (one of them was the defendant). In order to investigate the matter, Mr Chiu’s supervisor instructed him to arrange a friend to be a customer in disguise and go to the Shop to purchase car-washing coupons. Mr Chiu sought assistance from Mr Chan Tai-man.

4.  On 7 March 2019, Mr Chan disguised himself as a customer and went to the Shop.  He purchased from the defendant one set of car-washing coupons and 2 coating coupons (valued at $980 in total). Mr Chiu later confirmed that the car-washing coupons and coating coupons purchased by Mr Chan were stolen property.

Defence’s grounds of objection

5.  Mr Wong argued that Mr. Chan was able to obtain the evidence only because he had disguised himself as a customer. Such evidence was unfair to the defendant and therefore could not be relied on by the prosecution.

6.  Further to that, as Mr Chan obtained the evidence by improper means, the police could not rely on such evidence afterwards in the investigation on the defendant. Accordingly, the confessions made by the defendant to the police would also be inadmissible.[5]

My analysis

7.  First of all, I do not think that Mr Chan was a "person in authority" as suggested by Mr Wong.  For the defendant, Mr Chan was no doubt an ordinary customer only. Mr Chan did not reveal to the defendant (nor did the defendant know)  his true identity.  The sale of car-washing coupons to Mr Chan by the defendant was no different from any normal transaction.  Since the defendant was not aware of the identity of Mr Chan at that time, Mr Chan was not a "person in authority" (see Archbold Hong Kong 2020 paragraph 15-61 as per Wood J in R v Dixon & Smith; and paragraph 15-62 citing the judgment in Rothman v R[6]).

8.  According to Mr Wong, the defendant had suggested to Mr Chan that he come to purchase the new car-washing coupons on the following day as the validity period would be longer. However, Mr Chan insisted to make the purchase on that day. Mr Wong submitted that Mr Chan, in the capacity of an "agent provocateur", had induced or incited the defendant to sell the stolen property.  This was unfair to the defendant[7].

9.  In my view, even if the background provided by Mr Wong was true, the act of Mr Chan could hardly be classified as engaging the issue of "agent provocateur".  Mr Chan did not ask or invite the defendant to sell certain type of car-washing coupons to him.  The defendant did not reject Mr Chan either; he just suggested to Mr Chan that he come again on the following day. According to the written statement of Mr Chiu, he handed 10 sets of car-washing coupons to the defendant on 28 February 2019, hence the defendant absolutely had a choice to sell those "newly provided" car-washing coupons instead of the stolen car-washing coupons. The sale of the stolen car-washing coupons to Mr Chan by the defendant was done completely in his own free will.  It had nothing to do with others, nor could he put the blame on anyone else.  Mr Wong’s complaint was not substantiated.  Having considered the relevant legal principles[8], I consider that the way by which Mr Chan obtained the evidence did not cause any unfairness to the defendant.

10.  Based on the reasons stated above, I rule that the prosecution could rely on the evidence of Mr Chan.  Further to that, the prosecution could also rely on the confessions made by the defendant to the police.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Richard K. L. Man, Barrister-at-law.