HKSAR v. CHAN CHUNG WAI AND ANOTHER

DCCC 880/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 880 OF 2011

-----------------

-----------------

------------------------------------

REASONS FOR VERDICT

------------------------------------

1. The defendants herein, D1 and D3 on the indictment and so termed throughout, are jointly charged with Yu Tin-sun and Chan Wai- ming, D2 and D4 respectively, with one count of burglary, contrary to Section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. They each denied the charge of burglary that each faced. The particulars of charge are that between 14 April 2011 and 15 April 2011, both dates inclusive, having entered as trespassers part of a building known as Kadoorie Farm and Botanic Garden, hereinafter referred to as the ‘farm’, at Lam Kam Road, Tai Po, they attempted to steal therein.

2. D2 had been dealt with at an earlier hearing.  D4 was absent, and had been absent at the earlier hearings on 13 and 14 December 2011, when he was represented by Mr Oliver Davies, who appears for D1 and D3 at the hearing before me as well as on 13 and 14 December 2011. Mr Davies had seen D4 some 13 days prior to the hearing on 13 December 2011 and was unaware of the reason for his absence.  He sought for the trial of D1 and D3 to be severed from that of D4 and for the trial to proceed in the absence of D4.  Deputy District Judge B Chung, who dealt with the application, declined the defence application, and adjourned the matter as sought by the prosecution, and directed that if D4 was still at large, the prosecution should be ready to proceed with the trial of D1 and D3 in the absence of D4 at the next hearing.  When the trial began before me on 10 April 2012, D4 was still absent.  Mr Davies informed the court that he had received no further instructions to act for D4.  He sought that the trial of D1 and D3 be severed from that of D4 and proceeded in the absence of D4.  The prosecution also indicated that they were ready to proceed.  I granted the defence application and severed the trial of D1 and D3 from that of D4 and directed that the trial of D1 and D3 should proceed in the absence of D4.

3. There were six prosecution witnesses called.  Much of the evidence was by way of facts admitted under Section 65C of the Criminal Procedure Ordinance, Cap 221.  At the conclusion of the prosecution case, Mr Davies for D1 and D3 made a submission of no case to answer on the charge.  After hearing submissions from him and from prosecution counsel, I found that there was a case to answer by each defendant.  Having had their rights explained to them by counsel, each defendant elected not to give evidence nor did they call any evidence.  At the conclusion of the evidence, I heard closing submissions from counsel, and adjourned the matter until today for verdict.

4. I bore in mind at all times that the burden of proof remained throughout upon the prosecution to prove guilt beyond all reasonable doubt.  The defendants elected not to give evidence nor to call evidence.  That was their right and I drew no adverse inference against each defendant for exercising that right. 

5. I do not intend to repeat all the evidence that was adduced.  Suffice to say that I have considered all the evidence adduced before me as well as the submissions of counsel.  It was not disputed that trespassers might have entered the farm at the material time and attempted to steal therein.  The only issue is whether the prosecution has proved to the requisite standard that the defendants were amongst the burglars at the material time.

6. Facts admitted by the defendants under Section 65C of the Criminal Procedure Ordinance, Cap 221, marked as Exhibit P39, disclosed that:

(a) Kadoorie Farm and Botanic Garden is situated at Lam Kam Road, Tai Po. It is spread over 148 acres of land on the northern slopes and foothills of Tai Mo Shan. The main entrance of the farm is surrounded by a wire mesh fence which is 2 metres high. There are security guards employed at the farm around the clock. Inside the farm, there are various buildings, including the wild animal rescue centre, small mammals cages, large breeding units, small breeding units, constructed wetland wastewater treatment system and the male changing room. I digress here - although the particulars of charge refer to a building known as Kadoorie Farm and Botanic Garden, in fact the Kadoorie Farm and Botanic Garden consists of a number of buildings spread over 148 acres of land. No issue was taken by the defence in respect of this. Animals, including valuable turtles, are kept inside the large and small breeding units. Exhibits P1, P2 and P3 were produced by agreement and were respectively a colour pamphlet introducing the farm’s history and map of its boundary, a topographical map and a floor plan depicting the locations of building structures on the Farm.

(b) On 14 April 2011 at around 11:50 pm, PW2, Mr Ip Wai-pui, a security guard of the farm, found that a length of the wire mesh at the East Gate near the farm’s main entrance was cut open, as depicted in photos 5, 6 and 7 of Exhibit P34. He made a report to the police. Upon the arrival of the police and in their presence, PW2 found 2 red nylon bags, Exhibits P4 and P5, in the wild animal rescue centre, depicted in photos 16 and 17 of Exhibit P34, 1 pair of labour gloves, Exhibit P6, outside the small mammals cages, depicted in photos 13 and 14 of Exhibit P34, and 1 pair of labour gloves, Exhibit P7, outside the male changing room, as depicted in photos 21 and 22 of Exhibit P34.

(c) On 14 April 2011 at about 4:50 pm, animal keeper at the farm, Mr Kwok Yuet-ting, was the last staff member to leave the male changing room, locking the door and all the windows before leaving. There were no signs of ransacking in the male changing room at the time. On 15 April 2011, at around 8:20 am and in the presence of the police, he found that the aluminum windows of the male changing room had been prized open and the male changing room had been ransacked, as depicted in photos 23 to 29 of Exhibit P34.

(d) PW3, Mr Lee Wai-hang, an animal keeper at the farm, was responsible for the care of the animals kept in the wild animals rescue centre. At around 5 pm on 14 April 2011, he checked that the centre was in proper condition when he left work. On 15 April 2011, at around 8:20 am, he found two holes in the nylon mesh of the small breeding unit – he also found the 2 nylon bags, Exhibits P4 and P5, and the two pairs of labour gloves, Exhibits P6 and P7.

(e) On 15 April 2011, at 4:30 pm, PW1, Mr Tang Hon- man, a security guard at the farm, found in the grassland near the constructed wetland wastewater treatment system a pink plastic bag, Exhibit P8, a mag-lite torch, black in colour, Exhibit P9, and a Swiss multi-purpose folding knife, Exhibit P10. Inside the pink plastic bag Exhibit P8, there was an iron bar, Exhibit P11, two water pipes, Exhibits P12 and P13, a flathead screwdriver, Exhibit P14, a spanner, Exhibit P15, an open end wrench, Exhibit P16, keys, Exhibit P17 and a towel, Exhibit P18, depicted in photos 2 to 14 of Exhibit P36. Mr Poon Chi-ho, identified the Swiss multi-purpose folding knife, Exhibit P10, as his property which he had placed on the storage shelf inside the male changing room of the farm.

(f) At all material times, D1 was the registered owner of the private car with registration mark NG 6934.

(g) On 15 April 2011 at around 3:30 am, PW4 PC 5491 saw D1, D3 and 2 other males walk down from the hillside opposite to lamp-post EB0435 towards Lam Kam Road. Subsequently, D1 was intercepted by PW5 PC 5385. Upon a quick search of D1 near lamp-post EB0439 on Lam Kam Road, the key of the private car with registration mark NG 6934 together with the burglar alarm device for the said car was found from the left front pocket of D1’s trousers. When arrested and cautioned for the offence of attempted burglary, D1 said he had nothing to say. D1 was subsequently interviewed on video under caution, but made no admissions.

(h) D3 was also arrested at near lamp-post EB0439 by PW6 PC 4115. When arrested and cautioned for the offence of attempted burglary and questioned about his presence he made no reply.

7. Although there had been signs of ransacking, and prized windows, as well as cut mesh netting, it was not in issue that nothing was stolen from the farm at the material time.

8. PW1, aged 66 years old, was a security guard at the farm at the material time, although he has since retired.  On 14 April 2011, he was on duty from 3:50 pm to 12:20 am on 15 April 2011.  He went off duty at about 11:50 pm on 14 April 2011.  He left the farm by the main gate and walked downslope towards the bus stop to catch his bus home.  He noticed a vehicle parked in the coach parking lot near the East Gate, about 75 metres from where he was, and the source of light was the street lamps which were switched on at the time.  He found the parked vehicle at that time suspicious and observed it for several minutes.  It was not in issue that the parked vehicle had the registration mark NG 6934, of which D1 was the registered owner.  The vehicle is depicted in photos 0 to 8 of Exhibit P35.  The vehicle front was pointed towards the direction of Tai Po.  That stretch of road was very quiet, with no traffic.  He did not hear the sound of the engine – had the engine been on, he would have been able to hear it as it was such a quiet night.  After a few minutes, he saw four ‘youngsters’ alight from the vehicle.  He described three as being in dark coloured clothes and one in light coloured clothes, which he further described as three being in black shorts and one in light coloured shorts.  He saw one of them take out a light coloured rectangle object from the rear of the vehicle.  The four headed towards the East Gate of the farm.  He lost sight of them for between 1 to 2 minutes after they crossed Lam Kam Road and he walked closer to check.  He saw four shadows inside the East Gate, about 30 feet from him.  There was no one else in the vicinity.  No street lamps were on inside the gate so it was very dark.  He said he was certain that the four shadows were the same four youngsters he had seen alight from the vehicle earlier because of their clothing – one in light coloured top and black coloured shorts, one in dark coloured top and light coloured shorts and two in dark coloured clothing and because one of them was still holding the bag of stuff.  He saw the shadows inside the gate for 8 to 10 seconds.  His bus was approaching so he boarded his bus to go home, but made a phone call using his mobile phone to inform his colleague PW2 to make a report to the police.  PW1’s description of the clothing of the 4 ‘youngsters’ he saw alighting from the vehicle and the 4 shadows he saw inside the East Gate is quite crucial.  Under cross-examination, Mr Davies reminded him of the description he had given to the police in his witness statement of 15 April 2011, where he had described the person taking something from the boot of the car as wearing ‘white coloured shorts’.  He also described what the male took out from the boot of the car as a ‘tool box’, not a ‘light coloured rectangle object’ as he had described in his testimony in court.  In fact the only description of the 4 youngsters he saw alight from the vehicle as recorded in his witness statement was ‘I could not see the faces of the four males.  I only recognized that one of them was wearing white shorts.  For the others I did not have much recollection.’  When he telephoned his colleague PW2, he only said that four people had entered the East Gate and to call the police and go and check.

9. PW2 was on duty at the Farm as a security guard at the material time.  He received a phone call from PW1 at 11:56 pm that 4 persons had climbed into the East Gate of the farm, and one of them was carrying a bag of stuff.  He and another colleague drove to the East Gate and saw that the mesh fence on the right of the gate had been pulled open, as depicted in photo 6 of Exhibit P34.  He called the police and the police arrived shortly after, at about 0025 hours on 15 April 2011.  He took the police to look around the farm and they found the 2 nylon bags, Exhibits P4 and P5, as well as the 2 pairs of labour gloves, Exhibits P6 and P7.  He also found some mesh netting cut in the small breeding unit, as depicted in photos 18-20 of Exhibit P34.

10. PW3 Lee Wai-hang was an animal keeper at the farm at the material time.  He confirmed that animals kept in the wild animals rescue centre were rare and for breeding and quite valuable. General visitors to the farm could not freely enter that area, but sometimes overseas visitors were allowed but with prior approval.  He had checked the premises before he went off duty at 5 pm on 14 April 2011.  All was intact at the time, and the items subsequently found, namely Exhibits P4, P5, P6 and P7, were not there when he had gone off duty.  He said that the gloves found did not belong to staff in his department but others working on the farm did use similar gloves.

11. PW4 PC 5491 arrived at the farm at around midnight on the material day with other officers to investigate a case of burglary.  Initial investigation at the scene and nearby vicinity disclosed nothing.  He was instructed to look for 4 males, one in white top and shorts and the other three in dark clothing.  He was subsequently instructed to lay ambush in the growth of grass near lamp-post EB0435 on Lam Kam Road with PC 33282 from 0055 hours, whilst other police officers laid ambush in the vicinity.  The location where he laid ambush is depicted in photo 1 of Exhibit P38.  He was about 15 metres from the slope depicted in the photo, and the lighting at the time came from the lamp-post, and he described the lighting as ‘bright enough’.

12. The photo album Exhibit P38 was shown to PW1.  He testified that photos 18 to 20 depicted the Maintenance Section of the farm, which is locked, as depicted in photos 15 and 16.  He said that the path depicted in photo 15 led down towards the Tai Po direction, whilst photo 3 was the exit at the other end – the flight of steps in photo 3 led all the way to the path and gate depicted in photo 15, whilst photos 12 to 14 were photos depicting the same path at various different points.  He could not say, however, if the steps only led to the gate shown on photo 1.  If one looks at photos 3 and 4, it is clear that one can reach that gate if one walks along the path shown on the left of the photo, and not necessarily from walking down the steps.

13. PW4 described seeing 4 males walking down from the hillside at 3:30 am on 15 April 2011, on the staircase depicted in photo 1 of Exhibit P38.  When he first saw them, they were at the bottom of the staircase, and he marked the position of the first man with a red cross on photo 1, being just behind the gate depicted therein.  A close-up of that gate and staircase is depicted in photo 3.  When asked where they were when he first saw them, he said they were inside the gate, ‘crossing the gate’, ‘climbing over the gate one by one’.  D1 was in the front, and was the one he first saw climbing over the gate, with the others standing behind him on the steps, but he did not see from where the four had come and how they came to be on the steps.  He described D1 as being in a white top and light coloured shorts, whilst the other three were in dark clothing.  When asked what he meant by ‘light coloured’, he said ‘a kind of light blue’.  He further said that when he first saw D1, he could not see what colour the shorts he wore were, just that they were ‘light coloured’.  His top was white in colour.  D3 was also with D1 at the time.  The four men climbed over the gate and walked along Lam Kam Road in the direction of Tai Po, and he followed about 20 metres behind them with his colleague, and informed his colleagues who were laying ambush in the vicinity.  After following them for about 100 metres, he saw other colleagues ahead, and they all approached the 4 males and intercepted them.  He had not lost sight of the 4 males, and although he did not at the time see their faces clearly, he saw his colleague PW5 PC 5385 intercept the male in the front, who was D1.

14. Under cross-examination, he was asked to describe the ‘shorts’ D1 was wearing.  He said they were an ordinary pair of ‘light coloured shorts’.  When asked if these were running shorts, he was not clear.  He was asked if he had described the colour of the shorts in his witness statement – he said he had forgotten to write down the colour, although he had written down the colour of D1’s shirt, as well as the other 3 wearing dark clothing.  It was suggested to him that he had not seen anyone wearing ‘light coloured shorts’ and he had made this up – he disagreed.  He agreed that in his witness statement, he had said ‘I saw four men walking down to Lam Kam Road from the thick grass of the slope’ and he had made no mention of seeing the men climbing over the gate.  Had he indeed seen the four males climbing over the gate, how could he forget to include this in his witness statement?  He agreed he did not know if the men had walked down the staircase to reach that point or had come from the path on the left of photo 1 of Exhibit P38.

15. PW5 PC 5385 was the arresting officer of D1.  He had been laying ambush at Lam Kam Road near lamp-post EB0439, depicted in photo 1 of Exhibit P34, from about 0057 hours.  At 0330 hours, he was informed by PW4 that he had seen 4 males coming out from a hillside and walking along Lam Kam Road towards his direction.  He rushed out and revealed his police identity.  He described the clothing of D1, who was arrested by him, but could not remember what the other males wore, save that one was wearing dark clothing.  Lighting was from street lamp-posts.  He described D1 as wearing a light grey short sleeved T-shirt and a pair of blue denim shorts and a pair of white shoes.  He could see that D1 was wearing a light grey T-shirt from a distance of 10 to 20 metres, but described the light grey as being so light it looked like white, so that when he initially saw D1, he thought D1 wore a white T-shirt.  When they disclosed their police identity, the four males ran separately.  He ran after D1 and caught hold of D1, who put up a struggle, lost his balance and fell to the ground.  PW5 pinned D1 onto the ground although D1 continued to struggle.  Another colleague came to assist him to subdue D1.  He searched D1 and found the key to NG 6934 on D1.  He also found a pair of white labour gloves, Exhibit P19, from D1’s right front trouser pocket.  He verbally cautioned D1 as he suspected him of having committed burglary and asked him for the registration number of the car of the key he had found on him and whether he was the owner of that car.  D1 told him the registration mark and that he was the owner.  PW5 asked D1 about the labour gloves but D1 did not say anything.  He also asked D1 what he had done at the Kadoorie Farm – likewise D1 did not say anything.  After having reported this to his superior, he declared arrest on D1 for attempted burglary and verbally cautioned him.  He took D1 back to where NG 6934 was parked near lamp-post EB0426 for a car search, but nothing suspicious was found.  When he saw D1 and the other 3 males on Lam Kam Road, they were walking away from the car, not towards it, and when he intercepted D1, they were about 300 to 400 metres from where the car was parked.

16. Under cross-examination, he was asked to describe the blue denim shorts that D1 wore – he described these to be denim shorts, the length of which was almost up to the knee, a rather light colour, that had been washed many times and the colour had faded.  He could not recall the length of the shorts.  In his witness statement, he had not written down the colour of the shorts.  He also said that in describing whether it was light or dark blue, that was a subjective description.

17. PW6 PC 4115 was the arresting officer of D3.  He had laid ambush on Lam Kam Road with PW5.  He first saw them in the middle of Lam Kam Road, walking towards where he was laying ambush, about 15 metres from him.  PW5 had said they were near the edge of the pavement.  When the 4 males were near lamp-post EB0439, about two to three steps from him, he ran out and said to D3 ‘police, freeze’.  D3 ignored him and continued to run.  He caught hold of D3, who tried to resist.  D3 lost his balance and fell onto the ground.  PW6 pinned D3 onto the ground.  He searched him quickly and found a pair of labour gloves, Exhibit P23, and a torch, Exhibit P24.  He cautioned D3 and then questioned him.  Thereafter he declared arrest on D3 and again cautioned him.  He was cross-examined about D3 – that D3 had his arm in a sling when he first saw him – he disagreed.  He said D3 wore a black jacket with a black vest under the jacket and a pair of long blue jeans. Of the 4 men arrested, 3 wore long trousers, while one wore ‘short blue jeans’.  He described the colour of the jeans in his testimony in court as ‘light blue’ but in his witness statement, he had only described it as ‘blue’.

18. Further admitted facts under Section 65C of the Criminal Procedure Ordinance, Cap 221, marked Exhibit P41, disclosed that:-

(a) D1 was wearing a grey short-sleeve top, short blue jeans and white shoes.

(b) D3 was wearing a black jacket, black vest, long blue jeans and white sports shoes.

(c) A third male arrested was wearing a black outer jacket, white under-garment, black long trousers, white sports shoes.

(d) A fourth male arrested was wearing a green long-sleeve T-shirt, blue long jeans and white sports shoes.

19. D1, D3 and the two males were photographed at the police station in the clothing they were wearing at the time of their arrest and these photographs were produced by agreement and marked Exhibit P40.  One can see that D1 is wearing a grey T-shirt.  D3 is wearing a black jacket with a hood.  Five photographs of D1 taken at the police station on 15 April 2012 were produced by agreement and marked Exhibit P42(1) to (5).  One can see quite clearly in photo 4 that he was wearing blue denim jeans that reached below his knees but above his ankles, what is commonly referred to as ‘three-quarter’ pants.  The colour is the colour of blue denim, and cannot properly be described as ‘light blue’ nor can it be seen to be a colour faded by many washings.

20. PW1 was the only one who had seen the four persons who had alighted from the car with registration mark NG 6934. He viewed them from a distance of 75 metres under street lighting, and described what he saw  as four ‘youngsters’ alighting from the vehicle.  He described three as being in dark coloured clothes and one in light coloured clothes, which he further described as three being in black shorts and one in light coloured shorts.  This differed from the description he had given to the police in his witness statement made on 15 April 2011, where he said ‘I could not see the faces of the four males.  I only recognized that one of them was wearing white shorts.  For the others I did not have much recollection.’  He could not explain why he had said ‘white coloured shorts’ in his witness statement, but in his evidence in court he had described this as ‘light coloured shorts’, and why a year later he could recall more details of the clothing of the other 3 males than he did when he gave his witness statement to the police.  He had lost sight of the 4 males for 1 to 2 minutes before he saw the four shadows inside the East Gate where it was very dark.  He said he recognized the four shadows as being the same four persons by their similar clothing and that one carried a rectangular object.  It is quite clear that neither D1 nor D3, nor the two other males arrested with them wore ‘shorts’.  Nor could D1’s three quarter denim jeans be described as ‘light coloured’ or even white coloured.

21. The defendants and two other males were seen by PW4 walking down from the hillside at 3:30 am.  When asked where he first saw them, PW4 said he saw them just behind the gate depicted in photo 1 of Exhibit P38, and D1 was climbing over the gate.  Although he said each climbed over the gate, he makes no mention of this in his witness statement, and just described them as ‘walking down to Lam Kam Road from the thick grass of the slope’.  In his testimony, he said he saw them when they were behind the gate and he did not see how they got there.  It is apparent that one can get to the position behind the gate by routes other than coming down the flight of steps one can see in photo 1.

22. Keys to the car NG 6934 were found on D1.  It was admitted that he was the owner of the car, so it is not unusual that he would have had the keys to the car on his person.  But was he one of the persons who alighted from the vehicle when it was parked near the East Gate?  PW1 had described the 4 males who alighted to be ‘youngsters’ and clearly D1 is not a ‘youngster’.  The clothes D1 was wearing when he was arrested certainly in no way matches the description of the clothes PW1 described the 4 ‘youngsters’ to be wearing.  He was not wearing light coloured shorts nor was he wearing white shorts, the 2 descriptions given by PW1 – D1 was wearing a grey coloured T-shirt and blue denim three quarter pants.  PW1 described the other three males he saw as wearing black shorts in his testimony in court, although in his witness statement he said he had no recollection of what the other three were wearing.  It was admitted that D1 was wearing three quarter length blue denim jeans, whilst D3 wore full length blue jeans, and another male also wore full length blue jeans and the fourth male wore a pair of black trousers.  The clothing worn by D1 and D3 when they were arrested cannot match the description of what PW1 said he saw the 4 males alighting from the vehicle and the four shadows he saw inside the East Gate were wearing, be it his testimony in court or what he had said in his witness statement.  Also, when D1, D3 and the other 2 males were intercepted by the police officers, they were walking away from the car, not towards it.  I do not think an irrefutable inference can be drawn that because the key was found from D1, he must have been one of the four persons who alighted from the vehicle as described by PW1. Clearly his clothing, and the clothing of D3, which is the only description that PW1 could give of the four persons alighting from the vehicle, apart from saying they were ‘youngsters’, differed from that described by PW1.  PW1 lost sight of the four men for some 1 to 2 minutes before he saw the shadows inside the East Gate.  Were the four shadows the same four persons who alighted from the vehicle?  One cannot be certain.

23. The police witnesses, PW4, PW5 and PW6, were at pains to describe the clothing of D1 as ‘light’.  PW4 described it as ‘light coloured’ and a kind of ‘light blue’.  Yet in his witness statement he had made no mention of the colour.  He could not give any other details of the shorts he said D1 was wearing.  PW5 described the shorts in his testimony as ‘light blue’ denim shorts that had faded with many washes.  He had made no mention of the colour in his witness statement.  PW6 described one of the four men as wearing ‘light blue short jeans’ in his testimony in court, whilst in his witness statement, he did not mention that the colour was light blue.  The colour of the denim three quarter pants that D1 wore cannot be described as ‘light blue’, nor was it faded from many washes.  It can clearly be seen to be three quarter pants, not shorts, and even under street lighting, it would not appear to be light coloured or light blue.  The police officers were at pains to emphasize the lightness of the colour – none were able to explain why the lightness of the colour was not mentioned in any of their witness statements.

24. The crux of the prosecution case is the identification evidence.  The defendants have made no admissions.  Although D1 and D3 tried to evade arrest when confronted by the police, that in itself is not an admission of guilt and little can be inferred from it.

25. That there had been an attempted burglary at the material time was not challenged.

26. The burden of proof is on the prosecution to establish that it was the defendants who were the burglars at the material time.  I am not satisfied to the requisite standard that the burden has been discharged by the prosecution.  I would say that I do find D1, D3 and the two other males’ presence at that time of night and so close to the farm to be extremely suspicious in the circumstances, but the burden of proof is one of proof beyond all reasonable doubt.  I do have doubt, and the benefit of doubt must be to the defendants.  D1 and D3 are each acquitted of the charge.