HKSAR v. CHAN SIU HUNG

DCCC 763/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 763 OF 2015

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Reasons for Verdict

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1.  The defendant faces one charge of burglary. The burglary involved the stealing of items such as tools from an iron box on the rooftop of a residential tenement premises in Prince Edward Road, Tai Kok Tsui.

2.  In the charge, the defendant is jointly charged with the 2nd defendant who has pleaded guilty.

3.  The defendant and the 2nd defendant were seen leaving the ground floor of the premises by patrolling police officers at around 3 o’clock in the morning.  The iron box, which was on the roof of the building, had been secured at about 5.15 the previous day.

4.  The defendant and the 2nd defendant were eventually intercepted.  The defendant was carrying a black backpack that contained various items and that had been taken from the iron box on the roof of the tenement building.

5.  When questioned, the defendant initially said the 2nd defendant had given him the backpack to carry because it was heavy and it had been taken out of the iron box on the rooftop.

6.  In a later record of interview, the defendant said he had seen the 2nd defendant take the backpack out of the iron box and he knew that the bag of things did not belong to the 2nd defendant.

7.  Now, the defendant now says that he helped the 2nd defendant collect the backpack from the 5th floor of the premises and did not know that it contained stolen items.  He says that the police induced him to say the contents of the record of interview, which he gave in order to get bail and because he was told the 2nd defendant had pointed the finger at him.

8.  The issues at trial related to the admissibility of the defendant’s admissions to police, which were challenged, and the credibility of the matters raised by the defendant in his defence.

9.  I turn to the evidence.

10.  PW1 was the victim.  He had been working on the rooftop of the premises.  He had locked various tools and items away in an iron box at around 5 o’clock in the evening.  They were contained in a white bag. PW1 had identified those items, which had been recovered from the black backpack found in the defendant’s possession.

11.  This evidence was not challenged.  It was proved that the items particularised in the charge had been found in the black backpack.  PW1, in fact, in his evidence said that the black backpack had not been placed in the iron box by him.

12.  PW2 had been the arresting officer.  At around 3.15 am he had seen the defendant leave the premises together with the 2nd defendant.  The defendant was seen to carry a black backpack on his back.  The men had boarded a taxi but they were eventually intercepted. 

13.  PW2 had asked the defendant why he had a bag with so many tools at that time of day.  The defendant said it was in fact the 2nd defendant who had given the bag to him.  The 2nd defendant asked him to carry the bag as it was heavy.  He was asked when the 2nd defendant had given it to him.  He said shortly before boarding the taxi.  The 2nd defendant had taken the bag from the rooftop of the building opposite the fire station, given it to him. 

14.  They then returned to the premises, which is the premises particularised in the charge, which is No 71-73 Prince Edward West in Tai Kok Tsui, where they reached the rooftop, which is on the 8th floor.

15.  The defendant pointed at the iron box and said previously the 2nd defendant took the black backpack out of the metal box.  The defendant said he had gone to the building because the 2nd defendant owed him money and would repay him by treating him to a meal, so he had arranged to meet the 2nd defendant at the vicinity of the fire station, which is near the premises.

16.  When he met the 2nd defendant in the vicinity of the fire station, the 2nd defendant asked him to go to the premises to get something.  They went to the rooftop to get the things.  After getting the things they intended to go to Sham Shui Po for a meal.

17.  PW2 had checked the rooftop and found a damaged combination padlock on the ground and PW1 had evidenced that this was secured and undamaged when he left at 5 pm the previous evening.

18.  The defendant was then arrested for theft.  He said, “Ah Sir, it’s nothing to do with me.  It’s Ah Ming” - that is the 2nd defendant - “said the backpack was heavy and asked me to carry it for the time being.  The backpack was taken out of the metal box on the rooftop by Ah Ming.”

19.  The defendant was taken back to the police station.  His words following caution were post-recorded in P24.

20.  The next morning, another interviewing officer took a record of interview from the defendant, in which the defendant said the 2nd defendant had taken the black backpack from the iron box, given it to him to carry and that it did not belong to the 2nd defendant.

21.  On the special issue, there was a special issue investigation in relation to the defendant’s admissions. 

22.  The defendant gave evidence on that matter.  I have the evidence of the arresting officer, interviewing officer and a sergeant as well.

23.  On the special issue, the defendant gave evidence and the objections to the admissibility of the statements were largely based upon his testimony.

24.  The defendant’s case is:

(1) that he was never formally arrested or cautioned before the written statements were taken;

(2) that, in fact, part of the post-recorded statements had not been said by him; and

(3) that, prior to his record of interview, the defendant was told by a sergeant that the 2nd defendant had pointed the finger at him and the defendant would be found guilty if he did not point the finger back at the 2nd defendant;

(4) that if the defendant co-operated he would be granted bail. If he did not follow the police instructions, he would not be granted bail;

(5) that, in fact, the answers recorded in the record of interview were derived from suggestions made by the interviewing officer, PW3. The suggestions had been made prior to the taking of the record;

(6) that the defendant’s answers had to satisfy the interviewing officer, but they would be written down for him. Therefore, the contents of that document were not truly his.

25.  It was also said that the interview was, in fact, taken in the morning of 18 April rather than 19 April as recorded on the statement, and that both the record of interview and the post-record had been signed by him at the same time.

26.  These allegations were put to the three officers involved in the interviewing process:  that will be PW2, 3 and 4.  They all denied each and every allegation.  In fact, PW3 pointed out he was not even on duty on the morning of 18 April when the defendant had said the interview took place.

27.  Naturally, the prosecution must prove beyond reasonable doubt that all the written and oral matters that they rely on - that would be the oral admissions recorded in the post-record and the record of interview - were given voluntarily and that no force, threat or inducement were used or oppressive conduct used to procure those statements, and, furthermore, that the court should not exercise its residual discretion to exclude the statements on the basis of unfairness.

28.  The issue before me was one of credibility.

29.  The police officers each denied behaving improperly, denied any inducement or talking to the defendant about the 2nd defendant’s oral explanations or suggesting to the defendant the form in which his answers should take.

30.  I noted from the evidence the defendant was made fully aware of his rights during the interviewing process by the issuing of the Pol 153 documents prior to post-record and record of interview.

31.  Furthermore, the defendant had made no complaint at the time as to the alleged inducements offered by the interviewing officers or, in fact, any of the complaints made by him later in his evidence to the court.

32.  Furthermore, the defendant alleged the interview had taken place when it appeared the interviewing officer was not even on duty.

33.  Having heard all the evidence on the special issue, I found the three officers who had given evidence on that to be truthful, reliable and consistent.  I accepted their evidence.

34.  As to the defendant, he was clearly not truthful on the special issue inquiry.  He was certainly not truthful about when the record of interview had taken place.  His account was not even internally consistent, in that, according to him, he was to implicate the 2nd defendant, yet he also implicates himself.

35.  I rejected the defendant’s evidence on the special issue investigation in its entirety.

36.  The prosecution had proved to me beyond reasonable doubt that the oral statements of the defendant at the time of his arrest, the post-recorded statement and the record of interview were voluntarily and admissible.  There was no unfairness in the obtaining of these documents and the evidence and I admitted them into the evidence in the trial.

37.  On the general issue, the defendant gave evidence, as did the 2nd defendant who was the defence’s first witness or only witness in the trial besides the defendant.

38.  In respect of the general issue, the defendant, as I said, gave evidence.  He said he had come to know the 2nd defendant as a result of meeting him in a bicycle shop.  The 2nd defendant had arranged to sell the defendant’s bicycle for $100, but this money had never been given to the defendant by the 2nd defendant, and the defendant had pressed him for repayment.

39.  The 2nd defendant eventually arranged the defendant to come to the location opposite 71/73 Prince Edward Road - that is where the fire station is - and the defendant said the 2nd defendant was said to be inside the premises which was where the 2nd defendant’s girlfriend resided on the 2nd floor.

40.  They had arranged to meet.  When the defendant arrived he saw the 2nd defendant dragging a plastic box which contained a vacuum cleaner.  The 2nd defendant was unable to repay the defendant, but promised to take him for a meal.  The 2nd defendant needed to go upstairs to get something from his girlfriend.  He had left the plastic box on the second floor, but still had the vacuum cleaner.  They then went on to the 5th floor, where, from behind a rubbish bin, the 2nd defendant took out the black backpack. 

41.  The defendant said he had no idea who it belonged to, but it looked like the one he usually carried.  The 2nd defendant asked the defendant to carry it for a short time - it was heavy - and the 2nd defendant had also been carrying the vacuum cleaner in his hand.  The defendant told the court he had no idea what was in the bag.  He had no suspicion; he was just helping a friend. 

42.  He added he did not go to the rooftop that night and, in fact, had no idea what was up there.

43.  The 2nd defendant given evidence as the first witness for the defence.  His evidence was in similar terms.  He added he had been in the rooftop drinking beer with his girlfriend.  He had seen the padlocked iron box.  He had been able to unsecure it and open it.  He said they saw the black plastic backpack inside, saw the tools, took the backpack and the tools and placed the backpack on the 5th floor by the rubbish bin.  When the defendant had come, he had given him the backpack to carry.  They had gone to the 5th floor to collect it and then left the building.

44.  The 2nd defendant had to concede he had numerous previous convictions for offences of dishonesty, including burglary; also, that he had told the police in a record of interview that he had, in fact, seen the defendant go to the rooftop, break the lock and take the backpack; also, it had been the defendant who had asked him to go to the building to get something and that it had been the defendant that had taken the backpack from the iron box on the roof.

45.  The 2nd defendant then said that at the time he had said those things to the police, which were not true, he had been under the influence of alcohol and medication, and the police told him to say this so he would get bail, and they similarly had approved and suggested what he was to say.

46.  The issues put before me were, firstly, the prosecution must, of course, prove their case beyond reasonable doubt and the burden remains on them at all times. 

47.  As far as the charge against this defendant is concerned, they must prove that he entered the building - that is, the building at 71-73 Prince Edward Road - as a trespasser and stole therein some or all of the items particularised in the charge and by stealing, that means the dishonest appropriation of property belonging to another with the intention of permanently depriving that other of it.

48.  There is no dispute that items found in the backpack had originated in the iron box, that they were property belonging to another person and that the 1st and 2nd defendant had exited that building together, that same building where the iron box had been secured the previous evening.  They had exited together with the 1st defendant carrying the backpack, which he still carried when he was arrested. 

49.  It appeared there is no challenge to the fact that the tools inside had been stolen.  The defendant said that he was unaware of their status as being stolen items.  He said he was, in fact, invited into the building by the 2nd defendant, that he was given the backpack to help a friend, the 2nd defendant.  He did not know what was inside it and had no reason to have any suspicion.

50.  This evidence is established or would be established by the evidence of the defendant and the 2nd defendant together. If they can introduce any doubt as to any element of the prosecution case, the defendant is entitled to be acquitted.

51.  So it is firstly necessary to assess the credibility and reliability of the defence, as evidenced by the defendant and his witness, the 2nd defendant.

52.  I approached the evidence of these witnesses separately. 

53.  However, it was abundantly clear that their accounts tallied closely and, in my finding, they had colluded to place a false account before the court. 

54.  Their accounts were the same, in that they both attributed the taking of the backpack and the tools to the 2nd defendant, that the 2nd defendant had placed these items on the 5th floor, and they were retrieved by the 2nd defendant and the defendant.  There was no explanation being offered as to why they should be placed behind a rubbish bin.

55.  They furthermore each attributed their blaming of each other at the time of their arrest to the influence of the police.  Why the police should do this when they were caught red-handed leaving the burgled premises together was never properly explained; not only leaving the burgled premises, but leaving with the stolen property in their possession.

56.  I also note that both the defendant and the 2nd defendant gave different accounts to the police which were inconsistent with their present testimony at court and were inconsistent with each other.

57.  I note that the 2nd defendant says that when he broke the lock and took the black backpack, the black backpack was in the iron box.  Now, we know from PW1, it was clear that no black backpack was left in the iron box, and I accept PW1’s evidence on this as he was actually resolutely clear about the matter.

58.  It would appear the 2nd defendant’s evidence on this is a fabrication.  I presume this is in some way to obfuscate the conclusion that the bag carried by the defendant was brought by them to the scene to carry the contraband away.

59.  I also found that both the defendant and his witness (the 2nd defendant)’s testimony to be convoluted and untrue and to be inconsistent with previous explanations they had given to police. 

60.  The defendant initially blamed the 2nd defendant.  In doing so, he admitted he was on the rooftop with him.  Later, in evidence, he said he had never been there.

61.  I also note the evidence of PW2 the defendant had been to the rooftop during the investigation.

62.  The 2nd defendant himself initially blamed the defendant and said they both were on the rooftop.  This he placed in a written interview, which he now denies the contents of.

63.  I found at the end of all this evidence that I rejected the evidence of the defendant and also his witness as being untruthful and I found I had to reject it in its totality.

64.  In terms of evidence, I was then left with the evidence of the prosecution witnesses, which I found to be truthful and reliable. 

65.  I also had the evidence of what the defendant had said to the police in his post-recorded statement and the record of interview, which contained certain incriminating elements.

66.  I rejected the defence evidence. 

67.  I noted that there were matters which had been said by the 2nd defendant to the police in his admissions.  He denied the contents in his evidence and the matters said by him in his oral and written admissions to the police cannot form evidence against this defendant.

68.  However, the admissions made by the defendant can be used against him as they are admissions against his own interests. 

69.  However, in doing so, one must take care.  Care must be taken in approaching the admissions made to the police by the defendant.  The defendant is clearly an untruthful man. 

70.  He no doubt realised that his possession of the stolen items was highly incriminating, so he potentially had a strong motivation to present incriminating evidence against the 2nd defendant when he first gave explanations to the police.

71.  I resolve these issues as follows.

72.  The accepted evidence of the prosecution witnesses shows that the iron box on the rooftop was locked at around 5 o’clock of the afternoon of the previous day, with the items that were to be stolen inside.

73.  At 3.15 am on the following morning, the defendant was seen carrying these items out from the same premises with the 2nd defendant.  They were located in the black backpack carried by the defendant.

74.  In the absence of any explanation to the contrary being accepted by the court, the inference to be drawn is that the defendant and the 2nd defendant were in the process of leaving the building, having before taken those items from the iron box on the rooftop.  There had been no permission for them to be there or to take these items.

75.  This, by my finding, is the only reasonable inference that can be drawn from these facts.  It is an unassailable factual conclusion.

76.  There is also support for this in the defendant’s admissions, that he went to the rooftop with the 2nd defendant, that the items carried by him were taken from the iron box on the rooftop and that the defendant was aware that they did not belong to the 2nd defendant.

77.  I find that this evidence, taken together, clearly proves each and every element of the offence charged against the defendant.

78.  That being my finding of fact, the charge is proved against the defendant beyond reasonable doubt and I convict him accordingly.