HKSAR v. CHUNG CHEUK PANG

DCCC 998/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 998 OF 2015

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Reasons for Verdict

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1.  The defendant pleaded not guilty to one charge of attempted burglary and one charge of burglary.

Background

Charge 1

2.  Alarmed by the sound of something falling off the shoe rack outside her home, PW1 went to look through the peephole and saw someone using a long plastic object to poke at the door lock on her gate. PW1 opened the wooden door to confront the person, who immediately dropped the object and fled.

Charge 2

3.  The defendant was intercepted by Police officers during a licencing check at a cyber café. When questioned by the Police, the defendant admitted to the commission of the charge 1 offence, as well as having stolen a pair of shoes from another unit in Kwai On House earlier that day, using an umbrella to hook out the shoes from behind the metal gate.

Issues

4.  The prosecution case rests entirely on the truth of the contents of the defendant’s admissions made under caution. The issues are therefore whether the defendant did make the admissions and if he did, whether the contents are true and whether the court can place full weight on the admissions.

Prosecution case on the Special Issue

5.  The prosecution sought to adduce into evidence the defendant’s confessions in support of their case. The alleged confessions comprised of the verbal confessions made outside Sun Tin Dei Cyber café, as recorded in the notebook of PC14687 (PW3), and the confessions made during the video recorded interview with the defendant by PC5589 (PW7).

6.  The prosecution called a total of 6 witnesses to prove their case on the special issue.

PW3 PC14698

7.  PW3, PC14698 officer Lam, was the Police officer who questioned the defendant outside a cyber café where the defendant made the alleged confessions.

8.  PW3 together with other teammates were taking part in a routine licensing checking operation at no.77 Wing Fong Road, Sun Tin Day cyber café on 24^th September 2015.

9.  At around 10:27pm, officer Lam spotted the defendant playing computer games in the café and immediately recognized the defendant as a suspect in an attempted burglary case which took place in July.

10.  Officer Lam was one of the investigating officers in that case and had reviewed closed circuit television footage which caught a suspect’s images inside the lift.

11.  After spotting the defendant in the café, officer Lam informed the members of his team and then approached the defendant and showed him his Police warrant card to reveal his Police identity. PW3 then invited the defendant to go outside the café for investigation.

12.  When outside, PW3 asked for the defendant’s name, how long he had been playing inside the café and where he lived.

13.  Upon hearing the defendant saying that he resided at Kwai On House, PW3 decided that he had to caution the defendant before conducting further investigation, because the attempted burglary that PW3 had in mind when he recognized the defendant took place in Kwai On House, and there was more reason for the officer to believe that the defendant might have committed the attempted burglary.

14.  Before administering the caution, PW3 took out a Pol 153 form (Notice to persons in police custody or involved in police enquiries) from the shoulder bag that he was carrying, told the defendant what it was, that the defendant was under investigation and explained to the defendant the rights listed in the form.

15.  After the defendant had indicated that he understood his rights, PW3 handed over the form for the defendant to read and asked if he had any questions. When the defendant indicated that he did not have any questions he proceeded to sign as the recipient of the notice on the form. PW3 himself also signed on the form. 

16.  After the signing of the said form, PW3 put the form back into his bag first. PW3 kept the form all the way until the end of the whole investigation process and when they were back at the Police station.

17.  After the issuance of the said Pol153, PW3 proceeded to caution the defendant. The caution is as recorded in PW3’s notebook.

18.  The defendant appeared nervous when PW3 administered the caution but he did indicate that he understood and said to PW3 “You go ahead and ask” (你問啦).

19.  PW3 asked the defendant where he was and what he was doing at about 00:30 am on 8 July 2015. The defendant answered that, on that night he went to the place outside of room 2204 Kwai On House, intending to steal a pair of ladies shoes, but was unsuccessful.

20.  PW3 asked the defendant if he had done anything else and the defendant answered that all together he had stolen shoes on 3 occasions, but that he did not remember the places. The defendant was however able to remember that on 24 September 2015 he did steal a pair of black female flat bottom shoes at Room 2318.

21.  Since according to the defendant’s answer, PW3 had reason to believe that the defendant had between the period 8 July and 24 September 2015 stolen shoes on 4 occasions, PW3 decided to caution the defendant again.

22.  After this second caution, the defendant said, Ah sir, sorry, I chose to steal shoes because I was really in need of money, I knew that stealing is wrong.

23.  While PW3 conducted the investigation with the defendant, his colleagues PC16022 and PC58595 were standing guard next to them, about 2 to 3 persons’ distance away.

24.  PW3 continued with his investigation and asked the defendant where the shoes were. The defendant told him that he was worried that his family member might discover about the shoes and so the defendant had threw them away into a big rubbish bin outside his home.

25.  PW3 also asked the defendant how he stole the shoes. The defendant said he found a long object at scene and used it to fish for the shoes, and that he used an umbrella outside Room 2321 to reach for the shoes.

26.  After PW3 finished asking questions, he noticed the defendant looking around. PW3 worried that the defendant might flee and so he handcuffed the defendant.

27.  PW3 explained the process of his notebook entries made outside the cyber café. PW3 would  immediately record what the defendant said under caution in his notebook. PW3 then showed the notebook to the defendant for him to read and to sign against the defendant’s answer. This was the same with all the answer. The defendant was then asked to copy down the final declaration and signed as well. A copy of the notebook was later given to the defendant and he had signed in receipt in an acknowledgement of receipt (認收書).

28.  PW3 asked if the defendant was willing to lead them to try to locate the pair of flat bottom shoes. The defendant told PW3 that he lived at room 1322 of Kwai On House and said he was willing to bring the officers there.

29.  Having handcuffed the defendant, PW3 together with PC16022 and Sgt 58733  brought the defendant on to a Police vehicle and left for Kwai On House.

30.  When there, the same 3 Police officers brought the defendant up to outside Room 2321 of Kwai On House, where the defendant pointed out to PW3 a light coloured umbrella hanging outside Room 2321 and said that it was the one he had used to steal a pair of ladies’ shoes on the afternoon of 24 September at Room 2318.

31.  The umbrella was then seized by PC5198 (PW8) as an exhibit (P-15).

32.  PW3 and PC16022 and Sgt 58733 then brought the defendant down to the Refuse Collection Room on the 13^th floor of Kwai On House, where the defendant pointed out a green rubbish dumpster into which he had disposed the shoes he had stole that day.

33.  The defendant was then brought to his home and a search was conducted there. Nothing special was found and nothing was seized.

34.  The defendant was then brought back to Kwai Chung police station.

35.  When there, PW3 brought the defendant before the Duty Officer and reported the case. The defendant did not make any complaints. PW3 remembers asking the defendant if he needed food or water or to use the washrooms and the defendant said he did not.

36.  PW3 then brought the defendant to Reception Room 2 in the Report Room. There PW3 took out the pol153 form that the defendant had signed outside the cyber café and filled in the case number on the form in front of the defendant.

37.  PW3 then read out to the defendant the relevant contents he had recorded in his notebook and showed his notebook to the defendant for him to read. PW3 then explained the declaration to the defendant and then the defendant copied it down at page 71 of the notebook, declaring that he had read the contents, that he knew he had the right to make amendments, that the contents were accurate and that he made the statements voluntarily.

38.  PW3 then asked his colleague PC16022 to make a copy of the notebook while PW3 stayed in the room guarding the defendant. A copy of the notebook was then given to the defendant and he had signed in receipt.

39.  The defendant was then brought back to the Duty Officer and there the Duty Officer issued a pol1123 form (P-9) to the defendant. Pol1123 is a search form for person in custody.

40.  The defendant signed on the form to indicate that he understood that he was to be searched. PW3 and 16022 then brought the defendant into the search room and searched. Nothing suspicious was found.

PW4, 5 and 6

PC16022 officer Ho, PC58595 officer Cheung and Sgt 58733 Mr. Tse

41.  The three officers were called for the purpose of cross-examination. Their evidence corroborated with each other as well as with the evidence of PW3, in particular that PW3 did arrest and caution the defendant outside the cyber café.

42.  PW4 confirmed that PW3 had questioned the defendant and the defendant had answered. He did not pay attention to the contents as his duty was to stand guard. PW4 also confirmed that PW3 did pass a notebook to the defendant for the defendant to look at. He saw the defendant holding the notebook, appearing to read it and then signed on it. PW4 did not pay attention to how many times the defendant had signed nor how long the defendant had read the notebook.

43.  PW4 confirmed that he went to Kwai On House together with PW3, the defendant and Sgt 58733. Outside Room 2321 on the 23^rd floor, PW4 heard the defendant pointed out to PW3 a long umbrella which was hanging on a water pipe outside Room 2321 and said that it was used to commit burglary at Room 2318. PW4 did not pay attention to the actual words of the defendant and the conversation between the defendant and PW3.

44.  PW4 remembered that the investigation continued to 13^th floor of the building. After that, they went to the defendant’s residence at Room 1322 where a search was conducted with the defendant’s consent. Nothing suspicious was found.

45.  The defendant was then brought back to Kwai Chung Police station where the defendant was brought before the Duty Officer for reporting.

46.  PW4 had no further contact with the defendant from then on until 25 September at 01:45am when PW3 requested him to help with some photocopying work. PW4 did the photocopying and handed everything over to PW3. From 02:07am to 02:10am, PW4 and PW3 searched the defendant. PW4 had no further dealings with the defendant thereafter.

47.  PW5 officer Cheung also took part in the licensing checking operation. He also spotted the defendant as the person who resembled a suspect in an attempted burglary case. The reason why PW5 knew about the case was because he was an investigating officer in relation to a burglary that took place at around 00:30am on 8 July 2015 and he was tasked to review the closed circuit television footage of the building where the incident took place.

48.  Once PW5 spotted the defendant, he made eye contact with PW3 first, to see if he might share the same feeling about the defendant being related to the earlier burglary. PW5 saw PW3 was also looking at him and then turned his gaze towards the defendant. PW5 therefore believed that PW3 felt the same way about the defendant.

49.  PW5 then went up to the defendant who was sitting at the video game and showed him his Police warrant card that was hanging around his neck. PW5 asked the defendant to pack up his personal belongings and invited him to stand up and to go outside for investigation.

50.  Once the defendant was outside, PW3 questioned the defendant while PW5 and PW4 stood guard nearby. PW5 saw PW3 issuing a pol153 form to the defendant. PW5 also saw PW3 holding his notebook, asking the defendant questions, and writing in the notebook. PW5 saw PW3 using several minutes to explain the contents of pol153 to the defendant. The defendant was then given the form and allowed to read. Afterwards PW3 continued to question the defendant.

51.  PW5 recalled the defendant saying that he was involved in a burglary case that took place on that same day, and that it was similar in nature to an earlier case that took place on 8 July at Kwai On House.

52.  On hearing that, PW5 immediately went to report the matter to his superior Sgt 58733, who immediately instructed PW5 to go to Room 2318 Kwai On House together  with a woman Police officer to verify the situation and contact the victim to see if such an incident had in fact taken place. PW5 left the scene while the questioning of the defendant was still going on and therefore did not know if and when PW3 finished his investigation with the defendant.

53.  PW5 went to Room 2318 of Kwai On House. When there, he saw that his other colleague PC5198 was already at the doorway of Room 2318 trying to find out the situation with the occupant. PW5 was then instructed to stand guard at the Refuse Collection Room on the 13^th floor of the building.

54.  While there, PW5 saw the defendant accompanied by PW3, PW4 and Sgt58733 of his team on the 13^th floor. PW5 however did not have any contact with the defendant and did not hear their conversations.

55.  In cross-examination, PW5 said he did ask the defendant what his name was answer where he lived when they were outside the cyber café. PW5 did not make a record of that because the investigation process was to be conducted by PW3 and it was his responsibility to do so.

56.  PW6 Sgt 58733 Mr. Tse gave evidence and confirmed that he was told that the defendant was investigated and arrested. He heard parts of the conversations between PW3 and the defendant but was not able to recall the details, just that his team member was asking the defendant about an attempted burglary that took place on 8 July 2015.

57.  PW6 did see PW3 take out his notebook as well as a pol153 form. PW6 saw PW3 writing in the notebook and then handing it over to the defendant who also wrote something. PW6 felt that the defendant understood what was in the notebook and pol153 because he did not see the defendant asking any questions about them.

58.  After PW6 had found out from PW3 about the case, he instructed his team to proceed to Kwai On House for further investigation. They arrived on the 23^rd floor of Kwai On House at 23:43. While outside Room 2321, PW6 saw an umbrella hanging on a water pipe outside. PW6 saw PW3 investigated with the defendant and wrote things down in his notebook.

59.  The defendant was then brought downstairs to the 13^th floor Refuse Collection Room. There, PW6 saw PW3 investigated with the defendant and writing things down in his notebook. They then went to Room 1322 where the defendant lived and conducted a search. Nothing related to the case was found.

60.  The defendant was then brought back to Kwai Chung Police station and PW6 had no further contact with the defendant thereafter.

PW7 PC5589

61.  Officer Chan was responsible for investigating the defendant and was the Police officer who conducted video recorded interview with him.

62.  The video recorded interview lasted about 9 mins and was played out in open court.

63.  In the video recorded interview, the defendant was told about his right to a lawyer list and said he did not need one. The defendant said he understood his caution. He appeared alert and well in the video.

64.  The defendant then made various admissions in relation to the attempted burglary that took place on 8 July 2015 and the burglary that took place on 24 September 2015.

65.  About 19 minutes before the video recorded interview started, PW7 did ask the defendant to sign a pol153 (exhibit P-12). Inside the interview room, PW7 showed the notice to the defendant and explained to him the contents. The notice was then handed to the defendant for him to read. The defendant indicated he understood and agreed and proceeded to sign on the notice, which was timed at 6:20pm.

66.  After the video recorded interview was finished, discs were processed. PW7 then tested the discs to make sure they could be played and then gave a copy to the defendant, who signed to acknowledge receipt. However, since the defendant was a person in custody, he was not allowed to have anything sharp. PW7 therefore held on to the disc and told the defendant that it will be placed in his prisoner property. The defendant agreed and signed on the receipt.

67.  During cross-examination, it was pointed out that PW7 had collected the defendant at 18:04, the video recorded interview started at 18:39, with 10 minutes or so being spent on dealing with the pol153, there would still be 25 minutes left.

68.  PW7 explained that during that 25 minutes, he explained to the defendant what was going to happen later on in the investigation, introduced what kind of equipment and procedure will be involved later. PW7 also explained to the defendant what case he will be investigating on and the reason for the defendant’s arrest. PW7 also asked the defendant about his personal background, his family members. PW7 did not ask where the defendant lived. He was not sure if he asked the defendant whether he had a job. All in all, according to PW7, of the 25 minutes, there would only be about 5 to 6 minutes left.

The defendant’s case on the Special Issue

69.  The defendant did not give evidence on the special issue. The defendant’s case is gleaned from the grounds of objection.

The notebook admissions

70.  It is the defendant’s case that Police officers had used foul language to abuse him, lure of bail and lenient punishment to induce him to confess. The defendant was never arrested nor cautioned at scene, pol153 was never issued to him at scene.

The video recorded interview

71.  It was PW7 who had taught the defendant how to give the answers in the video recorded interview. That when the defendant gave some wrong answers, the video recorded interview was stopped, the disc taken out and a new one was inserted to restart the interview. Counsel for the defendant however did not put to PW7 as to what the alleged mistake was, informing the court that he was not instructed on the alleged mistakes.

Ruling on the Special Issue

72.  It is for the prosecution to prove beyond reasonable doubt that the defendant did make those confessions and that they were made voluntarily.

73.  The defendant elected not to give evidence on the special issue. The fact that the defendant has not given evidence proves nothing, one way or the other. On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put before me by the prosecution in relation to the special issue.

74.  I find that PW3,4,5,6,7,8 are all honest and reliable witnesses. I find that they are telling the truth about how the defendant was first spotted inside the cyber café and then taken outside. I find that PW3 and PW5 did have sufficient grounds to believe that the defendant was a suspect in the earlier burglary case.

75.  I accept PW3’s evidence that he recognized the defendant straight away. I do not find that his failure to record about the ‘very small eyes’ of the suspect in his statement would take away from his credibility. In any event, I find that PW3 did honestly and genuinely believed that the defendant was a possible suspect at the time and so he decided to approach him and to bring him outside.

76.  I find that PW3 did carry a pol153 form in his bag and did take it out to be issued to the defendant outside the cyber café. I find that he did arrest and caution the defendant twice outside the café. I find that PW3 did accurately record the questions and answers between himself and the defendant. I find that the defendant was given the notebook to read and did indicate that he understood the contents and had signed to confirm the contents and his understanding.

77.  I find that no one had threatened or induced the defendant to say the things recorded in the notebook of PW3. I find that no one had used or threatened to use violence on the defendant while he was in the custody of the Police.

78.  In relation to the video recorded interview, I find that there is nothing to suggest that the time used by PW7 to prepare for the interview was unreasonable. The timing offered by PW7 could only have been an estimate.

79.  Although there is record to show that PW7 did take out two sets of discs, it does not necessarily lead to a sinister motive. I accept PW7’s explanation about the discs. Furthermore, the video recorded interview was a short one, the facts that the defendant was supposed to have been taught to say was simple, there is no reason why the defendant is not able to point out to PW7 through his counsel what the mistakes that the defendant supposed to have made were. In any event, the defendant was able to make some exculpatory statements in relation to the other similar incidents, backtracking from his earlier admissions made to PW3 as recorded in his notebook, that is to say he no longer had any impressions of the other incidents.

80.  Having considered defence counsel’s submissions and all the evidence in relation to the special issue, I find that the prosecution has proved beyond reasonable doubt that the defendant did make the admissions and statements as accurately recorded by PW3 in his notebook, and accurately and fully recorded in the video recorded interview.

81.  I am satisfied beyond reasonable doubt that the prosecution has proved that each of the contested statements the defendant made was made voluntarily. I do not consider that this is a case where I should exercise any general discretion to exclude the admissions on the ground of unfairness.

82.  PP-6, 7, 8, 10, 11, 12, 13 and 14 were therefore formally admitted into evidence.

General Issue

83.  Prosecution formally closed their case after my ruling on the special issue. There was no no-case submission from the defence and I found that there is a case for the defendant to answer on both charges.

84.  The defendant elected to give evidence on the general issue.

Summary of the defendant’s evidence on the general issue

85.  The defendant’s rights were explained to him by his counsel and he elected to give evidence on the general issue.

86.  The defendant is 24 and lives with his mother and elder brother at Unit 1322 on 13^th floor of Kwai On House.

87.  As at July and September 2015, the defendant was working as a metal worker at construction sites, earning on average more than $17,000 per month. The defendant gave $5,000 to his mother for family expenses.

88.  The defendant denied that he had committed either of the acts in the two charges. He claimed that he signed in PW3’s notebook only because he was very scared at the time. He had never been surrounded by 10 odd Police officers. Some of them said to him that he will be taken to the nearby rear alley and beaten. Someone told him it was just a minor matter and that it will just be a fine.

89.  The defendant claimed that he knew he had to sign in the notebook, but was not allowed to read the contents and so he did not know what he was signing. The defendant said he just trusted the Police officers and so he signed.

90.  It is the defendant’s evidence that before his video recorded interview started, PW7 had taught him what to say later on in the interview and told the defendant to memorize it. Once they were done, the recording started. The defendant however made a mistake and PW7 immediately stopped the recording, took out the disc and inserted a new one. The recording resumed and the defendant was able to recite what he was told to say this time.

91.  The defendant said none of the admissions in the notebook and the video recorded interview were true.

92.  The reason why the defendant said what he said outside the cyber café, as well as why he decided to follow the instructions of the Police officer at the interview was because while still outside the cyber café, Police officers had used foul language against him and threatened that if he did not cooperate, the officers will take the defendant into a nearby rear alley and beaten up. The defendant felt scared and so complied with the Police officers’ requests and signed in the Police notebook despite not knowing what was written in the notebook.

93.  As for the video recorded interview, the defendant said that Police officers had told him that it was just a minor matter and the defendant had believed them. The defendant thought if he cooperated with the Police he would be released after handing over the bail money, so he tried his best to memorize all the things that the Police officer had taught him to say and he repeated them during the interview.

94.  The defendant is however no longer able to remember what he had been taught to say. Even after watching the video recorded interview in court, the defendant claimed that he was only able to remember about half of the contents. Counsel for the defendant did not ask the defendant to expand on that.

95.  During cross-examination of the defendant, the prosecution sought to cross-examine on his previous convictions on the basis that the defendant had through his counsel’s cross-examination of the prosecution witnesses, as well as through his own evidence given in-chief, attacked their character. The defendant has therefore lost his ‘shield’ under section 54(1) of the Criminal Procedure Ordinance, Cap.221.

96.  With reference to s.54(1)(f)(ii), I found that the defendant did impugn the character of the prosecution witnesses, in particular PW3 and 7, both directly and through his counsel in suggesting that they had fabricated the admissions purportedly made by the defendant. I find that there was no ambiguity in the attacks.

97.  I therefore exercised my discretion and ordered that the defendant may be asked, and be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than the offences he is being charged with in the present case, or that he is of bad character.

98.  The prosecution then questioned the defendant about a conviction for Indecent Assault in June 2012. The defendant admitted to the conviction and that he did push the victim in that case, but that he did not cover the girl’s mouth. The defendant was 20 years old at the time. He pleaded guilty to the charge and was put on probation.

99.  It is the prosecution’s position that the conviction goes only to show the bad character of the defendant but does not go to his credibility as a witness.

Findings common to both charges on the general issue

100.  It is for the prosecution to prove beyond reasonable doubt that when the defendant made the confessions he was telling the truth.

101.  Even though I have already ruled that the confessions made by the defendant were made voluntarily, it is still for the court to decide on whether the admissions made by the defendant were true and if so what weight should be given to them.

102.  I find all the prosecution witnesses honest and reliable witnesses. Their evidence corroborated with each other and they were not shaken under cross-examination.

Finding on the defendant’s credibility

103.  In relation to the defendant’s evidence, I first of all deal with the disclosure of his previous conviction.

104.  It is trite law that the disclosure of previous convictions must go only to the defendant’s credibility and not his propensity to commit a crime.

105.  Having regard to the nature of the defendant’s previous conviction and the fact that he had pleaded guilty to the charge, I find that I will not rely on this evidence to decide on the defendant’s credibility at all.

106.  Furthermore, even though the defendant had committed the previous offence, it does not mean that he will lie about the Police officers’ conduct and so there is to be nothing inferred from the fact of his previous conviction against the defendant.

107.  Having said that, I find that the defendant is not an honest or reliable witness for the following reasons.

108.  It is the defendant’s case that he signed in the Police officer’s notebook despite him not being given a chance to read its contents because he trusted the Police officers.

109.  If the Police officers really did use foul language against the defendant outside the cyber café and really did threaten to drag the defendant into the nearby rear alley to beat him up, I cannot accept that the defendant can still say that he trusted the Police officers and so he chose to sign in the Police officer’s notebook despite not being allowed to read its contents. I find the defendant’s explanation as to why he chose to sign in the notebook inherently improbable.

110.  Although I do not use the defendant’s previous conviction against him, it does tell me that it was not the first time that the defendant had been investigated by the Police. As at the time of the defendant’s arrest on 25^th September 2015, he was 23 years old and had been working at construction sites for at least a few months. I refuse to accept that the defendant would be willing to follow exactly what the Police officer had told him to say prior to the video recorded interview and then to repeat how he had committed the crimes, that he said he had not committed.

111.  Having had the opportunity to see and hear from the defendant in the witness box, it is obvious that he is an articulated and intelligent person. He was able to follow prosecution counsel’s questions and was able to challenge the question when he so wanted. The defendant did not appear to be someone who can be easily intimidated.

112.  The defendant appeared natural in the video recorded interview. He was fluent in his giving of answers and did not show any signs of hesitation or uncertainty about his answers. He did not need to refer to any notes during the interview and the Police officer conducting the interview did not once try to assist the defendant in giving his answers.

113.  I find that the defendant was not telling the truth when he said that he was not given a chance to read the contents of the notebook before he was told to sign. I find that he was not telling the truth when he claimed that the answers he gave in the video recorded interview were all taught to him by the interviewing officer. I find that the defendant was not telling the truth when he said that he was threatened to be beaten by Police officers and that he therefore became very scared.

Finding on whether the Police officers framed the defendant

114.  The Police officers are experienced officers, they would be risking their career and possible criminal sanctions for what the defendant alleged them to have done. Even if the defendant is convicted for the two offences, it is unlikely that the officers will gain much from the convictions in terms of career prospect.

115.  The officers were at the cyber café together with officers from other sections of the Police force and they were conducting a licensing check on the premises. It is undisputed that the defendant did reside at Room 1322 of Kwai On House at the time of the two offences, as well as when he was picked out by the Police officers on 25 September 2015. There is no suggestion whatsoever from the defence of previous grudges held against the defendant by the Police. There was no suggestion that the officers’ encounter with the defendant was not by mere chance.

116.  I find it inherently improbable that the Police officers would go to so much trouble and to put themselves under so much risk just to frame the defendant for the offence of stealing (attempting to steal in relation to charge 1) two pairs of shoes.

Finding on the weight to be given to the admissions

117.  It is the defendant’s case put in cross-examination that he was never arrested nor cautioned at scene. The defendant did not give evidence on the special issue so there is no evidence from him as to how his signatures came to be in PW3’s notebook. It was never put to PW3 that those signatures were not signed by the defendant.

118.  The defendant did however, during his evidence given on the general issue, claim that he signed without knowing the contents of the notebook.

119.  It was submitted in closing by counsel for the defendant that given the assertion by the defendant that he was earning some $17,000 per month at the time of the alleged commission of the offences, and given the fact that the shoes allegedly stolen could not have sold for much, there was no reason for the defendant to commit the offences, which in turn suggests that the Police had fabricated the defendant’s admission that he stole because he was short of money and therefore no weight should be placed on the admissions.

120.  Counsel for the defendant submitted that given the defendant’s employment and earnings, it was inherently improbable that he would have chosen to steal shoes from his neighbours in the same building where he lives.

121.  I disagree with the defence’s propositions.

122.  I have heard the evidence of the prosecution witnesses and find that they are all honest and reliable witnesses, both on the special issue and the general issue. I find that the defendant must have been telling the truth when he admitted to attempting to steal with a ruler and to actually stealing and then discarding a pair of shoes.

123.  It is not for me to surmise why the defendant chose to steal shoes, but according to the circumstances of the two offences, it is clear that the shoes were reachable from outside the gate and since they were in the same building where the defendant lives, they were easily accessible to the defendant. I find that it is not inherently improbable that the defendant would choose to target the easy and try to steal the shoes.

124.  As for the value of the shoes, the fact that they may not worth much does not necessarily mean that they are not worth stealing at all. Again, it is not for me to speculate why the defendant decided to steal the shoes.

125.  As mentioned in my ruling on the special issue, the defendant in his video recorded interview did manage to say something which tend to be exculpatory, which is that he had no impression of other similar burgling incidents other than the two that he had admitted to earlier. This goes to show that he had the freedom to say what he wanted. Furthermore, if it was the Police officer who had taught him to say that he did not remember certain offences, such ‘kindness and generosity’ on the Police officer’s part would not easily have been forgotten. Yet the defendant did not remember any of that.

126.  Nevertheless, having seen the contents of the video recorded interview, I find that the defendant did not appear to be trying to recite what was taught to him as he claimed to have been the case. The defendant’s demeanour was natural and the answers given were spontaneous.

127.  I find that the defendant did in fact make the admissions and that the admissions that incriminated him are true and I can place full weight on them.

Charge 1 (Room 2204): attempted burglary against s.11(1)(a) Cap.210

Findings in relation to the description of the defendant

128.  According to the evidence of the occupant of Room 2204, Ms. Wong, who saw the burglar through the peephole of the unit’s wooden door, the burglar wore light coloured trousers (as translated) and light coloured top.

129.  According to PW3 Police officer, his evidence in court is that while he was going through cctv footage in the investigation of this burglary, he was told by his teammate that the victim of the attempted burglary told the teammate that the man outside the door was wearing a short sleeve and light coloured top, light coloured shorts, dark coloured slippers, that the man was 20 to 25 years old, of slim build and with short black hair.

130.  It is PW3’s evidence that he saw someone fitting that description in the footage. The person got into the lift on the ground floor. The lift stopped on the 13^th floor but the man did not get out. The lift then went up to the 23^rd floor when the man did get out. PW3 found this man suspicious and was able to memorize the face. It was this impression that caused him to identify the defendant at the cyber café as the same person.

131.  Counsel for the defendant questioned whether PW3 could have been able to identify the defendant after two odd months of viewing the cctv footage. Counsel pointed out that according to the defendant’s alleged confession, the defendant had went down to 12^th floor to take the even number lift to 24^th floor and then walked down. This differed with what PW3 claimed to have seen in the cctv footage.

132.  I find that given the fact that according to the defendant he had stolen shoes a few times, the fact that he was not able to remember the actual dates, it is entirely possible that the defendant himself was not able to remember correctly what route he actually took on the 8^th July 2015 to go to Room 2204.

133.  I find that there is no reason for PW3 to lie about what he saw in the cctv footage. I find also that there is nothing to suggest that he had remembered wrongly what he saw in the footage. I find that, if it is relevant at all, PW3 did see the suspect entered the lift on the ground floor, did not get out when the lift stopped on 13^th floor and continued on to 23^rd floor where he did get out.

134.  The cctv impression merely acted as a starting point of the apprehension of the defendant at the cyber café. The prosecution case is built solely on the defendant’s admissions under caution. As I have already found, the defendant made those admissions voluntarily.

135.  As for the identification of the defendant by PW3 and PW5 based on their viewing of cctv footage, having seen the defendant in the witness box, I have to agree that he does have small eyes. More importantly, the defendant does have a face that is easily recognizable. I find that it is not inherently improbable that the Police officers were able to identify the defendant at the cyber café, if it was in fact the defendant that they had seen in the cctv footage. The prosecution obviously cannot rely on their identification evidence to prove that the defendant was in fact the person seen in the cctv or that the defendant was the person who had committed the two offences. The circumstances surrounding their watching of the cctv footage and the interception of the defendant at the cyber café go only to the Police officers’ credibility.  

Findings specific to charge 1

136.  I find that the defendant did on 8^th July 2015, at around 00:30am, tried to steal a pair of ladies shoes outside Room 2204 of Kwai On House with the help of a long grey plastic ruler. When the defendant heard the sound of the door of the unit opening, the defendant immediately left and went back down to 13^th floor of Kwai On House and then went back to his home at Room 1322.

137.  Based on the unchallenged evidence[1] of the occupant of Room 2204 on the night, Ms. Wong, I find that both the iron gate and wooden door of the unit were locked at the time. I find that Ms. Wong did hear sound of shoes falling down and went to look through the peephole on the wooden door and saw a man squatted outside the metal gate, using a long grey plastic object to hook at the lock of the metal gate. Ms. Wong became scared and asked her father to come out to the living room. They then opened the wooden door to ask the man who he was. Upon hearing the door opening, the man immediately dropped the plastic stick, which landed on the floor inside the iron gate, and fled. Police was later notified and the plastic stick was handed over to the Police and exhibited at trial as P-2.

138.  I find that, based on the defendant’s admissions and Ms. Wong’s evidence, it is an irresistible inference that the defendant was the person whom Ms. Wong saw on the night using the long stick to hook at the lock of her metal gate.

139.  I find that the defendant’s usage of the ruler amounted to the extension of his hand entering the premises and as such constituted entry into the premises. I further find that the defendant did not have permission to so enter and thus was entering as a trespasser.

140.  Based on the evidence of Ms. Wong and the defendant’s admissions, I find that when the defendant used the long ruler to reach through the metal gate, his intention was to steal the shoes which were hanging on the rack in the space between the wooden door and the metal gate (as shown in photo 22 of P-4 photo album) of Room 2204.

141.  I find that the prosecution had proved beyond reasonable doubt that the defendant attempted to enter Room 2204 at the material time with intent to steal, and I convict him of charge 1 accordingly.

Charge 2 (Room 2318): burglary against s.11(1)(b) of Cap.210

Findings specific to charge 2

142.  The occupant of Room 2318 Kwai On House Ms. Ho was the owner of the pair of Maud Frizon ladies flat soled shoes that was stolen from her home. The shoes were bought in July 2015 for around $450. Ms. Ho’s witness statement was read into evidence pursuant to s.65B of the Criminal Procedure Ordinance.

143.  At about 8pm on 23^rd September 2015, Ms. Ho returned home from work and put the pair of Maud Frizon shoes that she had worn that day at the doorway behind the metal gate of her flat.

144.  Ms. Ho left home for work the following day wearing some other pair of shoes. She returned home at around 8pm the same day. At around 11:40pm that night, Police officers showed up at her home and asked her if she had a pair of shoes missing.

145.  Ms. Ho checked the doorway and found the pair of Maud Frizon black flat shoes missing. Ms. Ho did not know how and why the shoes were missing.

146.  Based on the evidence of Ms. Ho, the shoes were placed behind the metal gate (see photo 29 of Exhibit P-4 photo album, taken by DPC 17496).

147.  According to the defendant’s admissions made at the video recorded interview, he went down one floor from his home on 13^th floor of Kwai On House to take the even number lift up to 24^th floor. He then walked down the stairs to look for things to steal. When he got to 23^rd floor, he saw the pair of flat soled shoes at Room 2318 that looked suitable.

148.  The defendant then saw an umbrella nearby and so he used it to hook out the pair of black flats.

149.  Based on the defendant’s admissions made to PW3 outside the cyber café, as recorded in PW3’s notebook, I make the following additional findings.

150.  I find that the defendant did on 24^th September 2015, in the afternoon, steal a pair of black ladies flat soled shoes from Room 2318 of Kwai On House.

151.  I find that the defendant stole the pair of shoes by using a light coloured umbrella outside Room 2321 to reach through the gate of Room 2318 and hooked out the shoes.

152.  I find that the defendant did bring the shoes home. The defendant later discarded the shoes into the large green garbage bin outside his home at Room 1322 Kwai On House on the 13^th floor.

153.  I find that the fact that the defendant had to use an umbrella to hook out the shoes imply that the metal gate to the unit was not open at the time of the defendant’s hooking out the shoes.

154.  I find that the defendant’s usage of the umbrella to reach into the premises to hook out the shoes amounted to an entry into the premises by way of the extension of his hand.

155.  I find that the defendant was not authorized to so enter and the entry was thus trespassing.

156.  I find that the defendant having entered the premises with the umbrella did steal a pair of shoes.

157.  I find therefore that the prosecution had proved beyond reasonable doubt that the defendant entered Room 2318 as a trespasser and then stole a pair of shoes and convict the defendant of charge 2 accordingly.