HKSAR v. BARRERA PATINO JULIO ALDEMAR AND OTHERS

DCCC 28/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 28 OF 2016

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REASONS FOR VERDICT (D2)

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Introduction

1.  A residential premises situated at Flat C, 2nd floor, Realfound Mansion, No 30A Stanley Main street, Stanley, Hong Kong (“the premises”) was burgled on 26 October 2015.  A number of items, including some jewelry, a lady’s wrist watch and some cash, which worth around HK$210,000, were stolen.  The 2^nd defendant’s passport was found on the floor inside the bedroom of the premises.

2.  All the defendants were jointly charged with one count of burglary (Charge 1).  The 1^st defendant was also charged with one count of going equipped for stealing (Charge 2).  The 1^st defendant pleads guilty to charges 1 and 2.  The 3^rd defendant pleads not guilty to charge 1 but pleads guilty to an alternative charge of handling stolen goods (Charge 3), which prosecution accepted his plea.

3.  The 2^nd defendant pleads not guilty to the charge and hence this trial only concerns him.

Issue

4.  It is not disputed that the premises were burgled and the items which belonged to the owners of the premises were stolen.  The only issue is whether the 2^nd defendant was one of the burglars. 

5.  No issue was taken of the fact that the 2^nd defendant’s passport was found inside the premises.

Prosecution evidence

6.  No prosecution witnesses were called in the trial as the entire prosecution case was agreed by the submission of admitted facts^[1] and witnesses’ statements^[2]. 

The burglary

7.  Ms Chu lived with her daughter Ms Yip in the premises.  They were the only persons who possessed the keys of the door and the main gate of the premises and they never lent them to anyone. 

8.  In the morning on 26 October 2015 at about 7:00 am Ms Chu left the premises.  Ms Yip left at around 7:30 am. The door and the windows of the premises were locked.  When Ms Chu returned home at around 3:20 pm on the same day, she discovered her flat was ransacked. A safe placed inside the living room was prized opened.  Some jewelry and cash kept inside the safe was found missing.  The drawer of a wooden cabinet inside the bedroom was forcibly opened.  A lady’s wrist watch, some jewelry and cash which stored inside that drawer was also stolen. 

9.  Ms Yip returned home at around 6:00 pm.  She noticed that the burglars used some of the tools, namely a screwdriver and a piler, inside her toolbox which kept in the balcony of the kitchen, to break open the safe and the drawer.  She further found a Colombian Passport which bears the name and photo of the 2^nd defendant on the floor of her bedroom when she was tidying up the premises.  A cigarette bud was discovered on the floor of the living room when she moved the safe.  Ms Yip and her mother did not smoke. 

10.  Ms Chu and Miss Yip confirmed that they did not know the 2^nd defendant and had never met him.  The 2^nd defendant’s passport and the cigarette bud were seized by the police officers for investigation.  Both Ms Yip and Miss Yip confirmed that 5 necklaces, 2 ornaments, one wrist chain, one “Tudor” lady’s wrist watch, two rings, 5 pairs of ear rings and cash of about HK$10,000 and 10,000 Japanese yen were stolen.

Arrest and caution

11.  On 28 October 2015, Mr Leung and Mr Cheung of the Discovery Bay Management Services Limited, noticed all the defendants in the vicinity of Discovery Plaza, Lantau Island, Hong Kong. Police were alerted and all the defendants were arrested subsequently.  Two Octopus cards^[3] were seized from the 2^nd defendant. 

12.  The police, with the assistance of a Spanish Interpreter, conducted two video records of interviews with the 2^nd defendant on 29 and 30 October 2015^[4].  The voluntariness of these interviews was not challenged.

Immigration and octopus records

13.  The 2^nd defendant arrived in Hong Kong on 6 October 2015 via Hong Kong International Airport as a visitor and was permitted to stay until 4 January 2016.^[5]

14.  The records of one of the Octopus card seized from the 2^nd defendant showed that it was used to travel to Stanley by Citybus Route No 260 (Central to Stanley Prison) at 12:44 pm.^[6]

Further inquires

15.  A male pawned the lady’s wrist watch at the Ming Sang Pawnshop in Temple Street, Kowloon on 28 October 2015 for HK$800.  The male presented a passport which bears the name and photo of the 3^rd defendant for identification purposes. The employee of the pawn shop, Mr Law, took down the details.^[7]

16.  Ms Ip operated and managed a guesthouse name “Overseas House” at New Lucky House.  On 28 October 2015 at around 11:50 am, three expatriate males went to her guesthouse and request to rent a single room for all of them.  Having chosen the room, Ms Ip requested all three of them to produce their identification documents for registration.  The 1^st and 3^rd defendants’ passports were produced.  The male who did not produce any identification document told Ms Ip in English that his passport was held for applying a visa for China visit.  Ms Ip hence took photocopies of the 1^st and 3^rd defendants’ passports and recorded the 1^st and 3^rd defendants’ particulars into his Guest Registry.  She further reminded the male who did not present his passport to do the same as soon as the procedure for visa application was finished.  The three males left the guest house at around 4:00 pm on the same day together and did not return.

No case submission

17.  The thrust of the no case submission advanced by Mr Polson for the 2^nd defendant is that the Prosecution evidence, taken at its highest, is not sufficient to prove the 2^nd defendant committed this burglary with the 1^st and 3^rd defendants.  Mr Polson emphasized that there is no evidence to show how many persons committed the burglary.  Further, there is a possibility, which had not been ruled out or disproved by the prosecution, that the 1^st defendant somehow for whatever reason, got hold of the 2^nd defendant’s passport and left the same inside the premises when he committed the burglary.

18.  Having considered Mr Polson’s submissions, I found that there is a case to answer to the charge for the 2^nd defendant.

Defence case

19.  The 2^nd defendant elected not to give evidence nor call any witnesses.

Burden of proof

20.  It was for the prosecution to prove beyond all reasonable doubt that the 2^nd defendant committed the burglary with the 1^st and 3^rd defendants.  The 2^nd defendant has no duty to prove anything.

21.  The 2^nd defendant has elected not to give evidence.  That is his right and no adverse inference will be drawn against him.

22.  The 2^nd defendant has a clear record.  I will give myself a “good character direction” accordingly in relation to credibility and propensity, that the 2^nd defendant is more likely to telling the truth and less like to commit a crime as compared to a person who had criminal records, when I evaluate the evidence of the case.

23.  There is no direct evidence against the 2^nd defendant.  Prosecution invited the court to draw the only and irresistible inference, based on the circumstantial evidence, that the 2^nd defendant was one of the burglars.  I reminded myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendant as well as one in his favour the adverse inference cannot be drawn.  I further reminded myself that the cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.  In a case where incriminating facts relied on to establish the inference are few in number, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to find the inference is established beyond reasonable doubt.  But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt.  Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.^[8]

Evaluation and analysis of the evidence

24.  I accepted the accounts of events as stated in the witnesses statements given by various witnesses including Ms Chu, Ms Yip, Mr Law and Ms Ip.

25.  I am satisfied the premises were burgled during the time when Ms Yip left and before Ms Chu returned on 26 October 2015.  I am also satisfied that valuable items belonging to them were stolen.  I am also satisfied the 1^st defendant had committed the burglary. 

26.  In so far as to Mr Polson’s no case submission is concerned, it has been held in Secretary for Justice v Ng Siu Lun^[9] that there is a case to answer if the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable.  There is no case to answer only if the evidence is not capable in law of supporting a conviction.  In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

27.  I am satisfied given the fact that the 2^nd defendant’s passport was found inside the premises and there is no evidence as to the reason of how it was there, together with the fact that the 2^nd defendant travelled to Stanley on the day when the burglary took place, a reasonable jury properly directed could or may or might infer that the 2^nd defendant was one of the burglars.  I found that the 2^nd defendant has a case to answer.

28.  Mr Polson in his final submission reminded the court that there should be no speculation as to how the 2^nd defendant’s passport was found inside the premises.  The fact that the 2^nd defendant went together with the 1^st and 3^rd defendants to Stanley on 26 October 2015 proved nothing.

29.  The contents of the 2^nd defendant’s two video-recorded interviews (“VRIs”) were “mixed statements”.  In the interviews, the 2^nd defendant said that he came to Hong Kong on the 6 October 2015, for the purpose of visiting China to make some purchases for his clothing business in Colombia.  He met the 1^st defendant on the plane to Hong Kong and they got acquainted with each other.  They went to disco in Hong Kong together and came to know the 3^rd defendant.  Somehow three of them registered and resided in the same hotel.

30.  During his stay in Hong Kong, he went to Stanley Market with the 1^st and 3^rd defendants.  They took a bus from Central.  They stayed in Stanley for around 2 hours.

31.  The 2^nd defendant further explained in the VRIs that on 28 October 2015 at around 5:30 pm, they left the hotel together and decided to go to Discovery Bay for a walk.  They took the ferry from Tsim Sha Tsui to Central and then another trip by boat to Discovery Bay.  When they boarded the boat intended to return to Central they were intercepted and arrested by police officers.

32.  The exculpatory part of the contents of the VRIs is that the 2^nd defendant denied ever going to the burgled premises.  He reserved his right not to answer any question whether he had committed the burglary, nor why his passport was found inside the premises.

33.  The 2^nd defendant’s visits to Stanley on 26 October 2015 and Discovery Bay on 28 October 2015 with the 1^st and 3^rd defendants are supported by objective and undisputed evidence.  He left hotel on 28 October 2015 together with the 1^st and 3^rd defendants is also supported by the evidence of Ms Ip, the owner of the guest house.  I attached full weight of these admissions.

34.  In so far as the 2^nd defendant’s denial that he had even  gone to the premises, I remind myself of the principle as laid down in R v Sharp [1988] 1 WLR 7.  Having considered the evidence, and bearing in mind the direction for the 2^nd defendant’s good character, I placed no weight on this assertion.  I further remind myself it is the 2^nd defendant’s right not to answer any question during the interviews and no adverse inference will be drawn against him.

35.  I was satisfied on the evidence that it was the 2^nd defendant who went with the 1^st and 3^rd defendants to Overseas Guesthouse at around noon time on 28 October 2015.  I am also satisfied that it was the 2^nd defendant when asked for his identification documents told Ms Ip that he could not produce any as his passport were used to apply for the visa for china permit.

36.  I did not lose sight of the fact that there is no direct evidence which showed that the burglary was committed by more than one person and Mr Polson’s submission that the only circumstantial evidence against the 2^nd defendant was that the 2^nd defendant’s passport was found inside the premises.  Mr Polson suggested that the 1^st defendant might have taken the 2^nd defendant’s passport with him when he committed the burglary.  Hence this court cannot draw the only irresistible inference that the 2^nd defendant had committed the burglary.

37.  As to whether there is a possibility that the 1^st defendant took the 2^nd defendant’s passport and got into the premises for whatever reasons or for whatever purposes, there is simply no evidence before this court and it is not for me to speculate.

38.  It is clear that Ms Yip and Ms Chu, the owners and occupiers of the premises, did not know the 2^nd defendant and no permission was given to all of the defendants to enter the premises.  The only and irresistible inference that can be drawn is that the 2^nd defendant’s passport was left there when the burglary took place on 26 October 2015.

39.  The 2^nd defendant must have known that his passport was lost before he went with the 1^st and 3^rd defendants to the guest house.  The passport is an important piece of identification document for a traveler when staying overseas.  Yet there is no evidence showing that there was any report made to the police concerning the lost of the 2^nd defendant’s passport.  The undisputable fact is that no report was made by the 2^nd defendant on 28 October 2015 as to the lost of his passport and he, having specifically told the owner of the guesthouse he could not produce his passport, proceeded to go to Discovery Bay, allegedly for a walk at the beach, with the 1^st and 3^rd defendants. 

40.  How was the 2^nd defendant’s passport end up being found on the floor inside the bedroom of the premises?  I was satisfied the only way was that he had been staying inside the bedroom of the premises and somehow left his passport there.  His presence in the premises must be the time between 7:30 am to 3:20 pm on 26 October 2015, when the burglary took place.  The only and irresistible inference that can be drawn from his presence during that time inside the premises was that he was one of the persons who had committed the burglary of the premises. 

41.  I am satisfied the prosecution had proved beyond all reasonable doubt that the 2^nd defendant is guilty of the charge and accordingly I convicted him of the charge.