HKSAR v. HAU PAK KWAN

DCCC 111/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 111 OF 2013

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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.  Craigengower Cricket Club (“CCC”) is a private club reserved for members only.

3.  On 7 December 2012 at about 10:15 pm, PW1, who was on duty as a club attendant, found the defendant outside the rear door of the male changing room on G/F of CCC.  At that juncture, the defendant was holding a damaged card sensor which was detached from the socket of the rear door (see the photos- Exhibit P7(19) and (21)).  PW1 told the defendant that he was not allowed to enter the male changing room through the rear door.  PW1 then went to report the incident to PW2 the assistant club manager.

4.  After a few minutes, PW1 led PW2 to the male changing room and found that the defendant was inside a cubicle of the male toilet.  PW2 then stayed there waiting for the defendant to come out.  After a while the defendant came out holding a blue-coloured bag but immediately returned to the cubicle upon seeing PW2.  PW2 asked loudly whether he was a member of CCC and the defendant replied in the affirmative.  Eventually the defendant came out and was stopped by PW2.  A report was made to the police.  Inside the cubicle, the said blue-coloured bag was hung behind the door.

5.  At about 10:50 pm, police officers including PW4 and PW5 arrived at CCC.  Upon enquiry, the defendant told PW4 that he was not a member of CCC and had arranged to meet a female friend inside the club.  Also the defendant was carrying a black-coloured backpack on his shoulder (Exhibit P1).  Upon search, one face mask (Exhibit P2), three gloves (Exhibit P3) and eight screwdrivers (Exhibit P4) were found inside Exhibit P1.  The defendant was further asked about the purpose of Exhibit P2 to P4 and he explained that they were used for experiments and decorative purpose.

6.  At about 11:00 pm, PW3, a member of CCC and the owner of the blue-coloured bag which was hung behind the door of the cubicle, returned to the male changing room after playing tennis.  He confirmed that at about 7:00 pm in that evening, he arrived at the male changing room of CCC and put his bag on top of locker no. 946 A (Exhibit P7(31)).  He then left for playing tennis.  The bag contained a towel, a jacket, a T-shirt, a pair of shorts, a belt, a pair of socks, a headband, an umbrella, a scarf and a letter in the name of his wife Chan Wai Fong.  The bag and all the belongings were returned to PW3 on that evening.  A photo depicting them is produced as Exhibit P7(33)(2) to 35(2) and they are the subject matter in this case.

7.  At about 11:40 pm, PW4 declared arrest on the defendant for an offence of “Burglary”.  Under caution, the defendant said “I did not steal.  I was only here because I have arrangement with friend to meet inside”.

8.  The CCTV camera installed at the entrance of CCC recorded that the defendant entered the club at about 10:05 pm in that evening.  The CCTV footage is produced as Exhibit P5.

9.  Exhibit P6(1) and (2) is the layout floor plan showing the male changing room of CCC.  There are two official entrances to the male changing room namely the front and the rear door which are secured by card sensors.  Members have to use their membership cards to gain access.  The rear door is leading to the passage to the swimming pool.  There is a fire door which is secured by a fire alarm for emergency use only.

10.  Exhibit P7 consists the photos showing the scene and CCC.  Exhibit P8 is a set of Admitted Facts which states inter alia that the defendant was a not member of CCC at the material time.

The defence case

11.  The defendant elected to give evidence and called his girl friend Madam Chan to testify on his behalf.

12.  The defendant, now aged 29, was a personal trainer of California Fitness Club.  On the evening on 7 December 2012, he had arranged to meet his girl friend DW2 at CCC.  Neither of them was a member of CCC.  They however did not realise that CCC is reserved for members only.  At about 10:05 pm, the defendant arrived at CCC while DW2 was expected to be there shortly.  He therefore walked around inside the club intending to see whether there would be another entrance that DW2 might use.  He entered into one of the exits and went down the staircase.  He found himself at the back alley where there was a transformer room.  He intended to go back to the foyer on G/F.  At that point in time, he found the rear door of the male changing room and saw that the card sensor had already been detached.  When he was checking the sensor by holding it, PW1 came out from the male changing room by the rear door.  PW1 then signaled him to go towards the direction of a fire door.

13.  When the defendant found the fire door, he entered into the male changing room.  Before he left, he went into a cubicle.  At that juncture, PW2 came and asked him out.  He never said that he was a member of CCC.  Nor did he come out with a blue-coloured bag.  After using the toilet, he came out with his backpack on his shoulder.  PW2 then asked him to stay for the police.  When he went into the cubicle, the blue-coloured bag had already been hung behind the door.  He had no intent to steal and he just intended to meet his girl friend for a chat inside the club.

14.  The gloves and face mask found inside his backpack were being left there after a reunion visit to his high school several weeks prior to the incident.  On that occasion, he carried out some simple experiments involving PH papers and Bunsen burners.  The screwdrivers were tools used for fixing tiles at his friend's apartment.

15.  At about 10:30 pm in that evening DW2 arrived at a tram stop in Happy Valley.  She received a call from him asking her to wait; however he had never turned up.  Later she received another call from him saying that he was at the police station.

Directions

16.  I bear in mind that the burden is on the prosecution to prove every element of the offence beyond a 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 innocence.

Evaluation of the evidence

17.  At trial, it is not in dispute that the defendant, who was not a member of CCC, was found inside a cubicle of the male changing room.  The primary factual dispute is whether the defendant came out from the cubicle twice and he was holding the blue bag at the first time as alleged by PW2.  The next issue is whether he entered as a trespasser and intended to steal at the material time.

18.  In cross-examination, PW1 said that he saw the defendant coming out from the cubicle with his own backpack once only.  He was not told by PW2 that the defendant had come out earlier with the blue bag.  PW2 however said in his evidence that when the defendant came out with the blue bag, PW1 was there.  It was submitted by the defence that PW2 fabricated the first "coming out" event so as to strengthen the evidence against the defendant as he was biased.  The allegation of bias was based on an earlier encounter between the defendant and PW2 at CCC which happened in about half a year prior to the incident.  The earlier encounter was that PW2 met the defendant at the male toilet.  Having aware of recent reports of theft cases at CCC, he asked the defendant whether he was a member.  The defendant then rushed out of CCC but PW2 failed to stop him.  A report was made to the police on that occasion.

19.  Indeed PW1 said that after he led PW2 to the male toilet, he had to go back to the reception counter of the male changing room and see if other members required assistance.  During that period of time, he had to go out and come back several times.  Apart from PW2, another club attendant Ah Lun was also there guarding the cubicle.  Under those circumstances, PW2 might have been mistaken as to the presence of PW1 when the defendant came out the first time or PW1 might have forgotten the first “coming out” event as he had to attend the reception counter intermittently.  This is purely a matter of memory or confusion.

20.  On the other hand, if one were to put the question of memory or confusion aside, I would ask myself, as a trier of fact, if the discrepancy was material and would cast a reasonable doubt on either testimony.  Taking an overview of the evidence, PW2’s first encounter with the defendant was a brief one and he indeed had no idea if the defendant was a guest of other club members.  On that occasion, PW2 was performing his duty to maintain the security of the club and a report to police was the preventive measure very often taken by security office.  I fail to see there was any reason why PW2 in reality had to form any prejudicial view on the defendant and jump to a conclusion that his presence at CCC must be clothed by an evil intent.  On 7 December 2012, there was no loss report made by PW3 at the time when PW2 was guarding the cubicle.  When PW3 returned to the male changing room, he was asked by the police officers if he had lost anything.  PW2 therefore would have no knowledge as to whether the blue bag was the property of PW3, not to mention that it might be a stolen property.  Thus I fail to see there was any reason why PW2 had to exaggerate his evidence against the defendant.

21.  Also PW1 had to travel between the male toilet and the reception counter intermittently at the material time whilst PW2 was guarding the cubicle throughout.  Therefore, in my view, PW2 shall be more vigilant about the observation.  Having considered their overall testimonies, I prefer the evidence of PW2 if there is any discrepancy with that of PW1.

22.  As to PW4, it was suggested in cross-examination that his observation that the defendant was “sweating all over” his face and appeared to be anxious was not accurate.  Though I accept that PW4’s observation was no doubt accurate, no weight would be attached to his subjective view of the demeaour of the defendant.  Such view, in my view, cannot be regarded as any basis in inferring guilt on the part of the defendant and any suspect under investigation might appear in the same way.

23.  I have carefully considered all the evidence, exhibits, their demeanour and counsel’s submissions, I find that all prosecution witnesses are honest and reliable save and except PW1.  Though I find PW1 is an honest witness, I prefer the evidence of PW2 to that of PW1 where their testimonies are inconsistent.

24.  Insofar as the defence evidence is concerned, the defendant said that it was his third time he went to CCC on 7 December 2012.  The first visit happened in about one year before the incident.  On that occasion, he and his girl friend walked pass CCC and found there were facilities inside.  They did not notice that CCC is a private club.  They chatted at the slide of the playground and left.  On the second occasion, he went into CCC alone and intended to see “if there was any change”.  I find that the assertion of both the defendant and DW2 that they did not realise that CCC is reserved for members only is implausible. When they got into the club, they could immediately realize that there were facilities and cafes inside.  If they were in doubt whether they were made available for public use, they could simply ask any staff to confirm that.

25.  Indeed the defendant agreed that he had met PW2 on the second occasion during which he was asked if he was a member.  This would plainly put him on alert that CCC is a private club.  It is inherent improbable that he still believed that he might be entitled to enter the club freely.  In cross-examination, it was suggested to him that there was a yellow notice sign showing the characters “members only”.  His first answer was that there was not such sign.  However when Exhibit P5 was played in court which clearly showed the presence of that sign and the security guard at the main entrance, he retreated and said he was not aware of that sign.  I find his evidence is wholly unbelievable.

26.  He said in his evidence that the reason why he walked around was to see if there was another entrance that DW2 might use.  His evidence was in direct conflict with that of DW2 who said that they were to wait at the tram stop.  If he wished to ascertain the number of entrance, he could have asked any of the staff instead of wandering inside the club.  In this regard, the evidence of DW2 also contradicted the assertions made by him under caution.

27.  He explained that when he found himself at the rear door of the male changing room, the sensor had already been damaged.  He held the damaged sensor as he saw the notice next to the socket and intended to see how he could open the door.  The notice as shown in Exhibit P7(21) clearly stated that “please use your membership card to unlock the door”.  By then, the defendant must have known that he was not allowed to go in without a membership card.

28.  When he was stopped by PW2 outside the cubicle, he felt that PW2 was disrespectful to him by pushing his chest and he was anxious to see DW2.  He also said that his mobile had gone off a number of times and some missed calls recorded. However according to the evidence of DW2, when she was waiting for him at the tram stop, she once received a call from him telling her to wait.  By the time when the call was made, he had already been apprehended by PW2.  If he had already contacted DW2, there was no basis for his alleged anxiety to meet her at the foyer at all.  Furthermore if he found that PW2 had unreasonably and violently treated him, he could have made a complaint to any police officer present during the investigation.  He however confirmed in his evidence that he did not voice that out to any police officer.

29.  I also find that his explanation as to the gloves, mask and screwdrivers found inside his backpack incredible.  If the gloves and mask had been used in any laboratory experiments, however simple, everyone would appreciate the risk of contamination.  Even if he did not appreciate such risk, it is inherent improbable that he would keep those used items as a kind of souvenirs and carry them with him.  He also said that the screwdrivers were tools bought for removing tiles for his friend’s apartment in Water Street Sai Wan and he was only involved in the first day of work.  After removing the tiles, he should leave the tools behind for his friends to continue the decorative works. Again, it is wholly unbelievable that he would carry so many screwdrivers with him at the material time for no reason.

30.  Having carefully considered the evidence of the defendant and DW2, their demeaour, exhibits and all the circumstances, none of them impressed me as an honest and reliable witness.  Accordingly I reject their evidence and attach no weight to his exculpatory assertions under caution.

31.  Having rejected the defence evidence, the burden remains on the prosecution to prove every element of the offence beyond a reasonable doubt.

32.  I find, as a matter of fact, that when the defendant entered into CCC, he must have realized that it is a private club reserved for members only and he was not allowed to enter.  As suggested and explained by PW2, anyone could find a way to the rear door of the male changing room through the passage in the carpark and the back alley without the need to present a membership card.  I am sure that this was exactly what the defendant did.  At the rear door, when PW1 asked the defendant to leave, he said that the rear door was closing slowly whilst he went to make a report to PW2.  As confirmed by PW1, there was no report of any malfunctioning of the card sensors securing the main and rear doors of the male changing room at the material time and the fire door was secured by a fire alarm which would go off if anyone pushed to open.  I therefore find that the defendant must have gained entry into the changing room via the rear door.  The defendant did come out from the cubicle twice and he was seen by PW2 that he was holding the blue bag.  Under those circumstances, the only reasonable irresistible inference is that the defendant entered into CCC as a trespasser with the intention to steal the personal belongings of the members inside the male changing room of CCC.

33.  By reasons of the aforesaid, I am satisfied that the prosecution had proved all the elements of the offence beyond a reasonable doubt.  Accordingly the defendant is convicted as charged.