HKSAR v. CHEUNG HIU YIN

DCCC 439/2023

[2024] HKDC 520

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 439 OF 2023

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty before me to a charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars are that she, on 14 May 2020, in Hong Kong, having entered as a trespasser part of a building known as Ground Floor, Shop B, Nos 3-19 Hong King Street, Yuen Long, New Territories, stole therein cash of $450,000 Hong Kong currency.

2.  However, she pleaded guilty to Theft of approximately $14,000 Hong Kong currency on the same date and at the same place.  That plea was not acceptable to the prosecution.

3.  A trial was rendered necessary to determine the correct verdict.

Prosecution case

4.  PW1 was owner of a restaurant in Yuen Long.  The defendant was a part-time casual worker there.  On 14 May 2020, at about 9:45 pm, shortly after entering the restaurant in accordance with her work hours, she went to the cashier counter area and stole cash from the metal cabinet and the two drawers underneath the cash register.  The amount stolen was $450,000.  The prosecution case is that she entered the restaurant that night with an intention to steal, thereby exceeded the licence to enter for the purpose of work only; as such, she entered as a trespasser.

Defence case

5.  The defendant did not give evidence nor call witnesses.  From the exchanges between the court and the defence, it appears the defence case is she did steal on the day in question; but the amount stolen was only approximately $14,000.  Also, the defence alleges, on that day, she went in for work but only formed the intention to steal after she entered the restaurant.

Issues at trial

6.  There are two issues at trial:-

(a)  Did the defendant enter the restaurant with an intention to steal? If so, it’s case of burglary; if not, it’s a case of theft; and

(b)  What was the amount of money that was stolen? Prosecution says it was $450,000. Defence says it was approximately $14,000.

Procedural history

7.  Prosecution called one witness only, namely, PW1 Hui Kwong Yiu, owner of the victimized restaurant.

8.  Upon close of the prosecution case, defence made half-time submissions arguing that there was no case to answer on a charge of burglary, on the basis that the defendant was simply reporting to work at the time of entry to the restaurant, ie she was not a trespasser.

9.  Prosecution replied that from the surrounding circumstances including the fact (relying on P5 (Camera 12 thereof))  that immediately upon entry, the defendant went straight to the cashier counter to steal thus showing, at least prima facie, that she had the intention to steal at the time of entry.  On consideration of the relevant evidence, I ruled there was a prima-facie case of burglary.

10.  Defendant elected not to give or call evidence as was her right. No adverse inference can or will be drawn against her because of her election.

Summary of salient admitted facts

11.  The following salient facts have been admitted by the parties:-

(a)  On date of alleged offence, around 2145 hours, the defendant entered the restaurant when it was closed with the gate at the front door rolled down, and took cash, which belonged to PW1, from the drawers underneath the cash register at the cashier counter; and

(b)  On date of the alleged offence, there was, amongst others, a CCTV camera (Camera 4)  installed at the cashier counter; the footage captured by it at the material time is true (except for the time stamp shown).

Summary of PW1’s evidence

12.  PW1 gave the following evidence in chief.  The restaurant of which he was owner opened for business 24 hours a day.  There was however a period of time when business stopped for cleaning and preparation.  Work stopped at 9 pm.  There was cleaning till 9:30 pm. However, there was some evidence that the time for last order was 9 pm (the evidence was later changed to 8:50 pm under cross-examination).

13.  Day shift staff and customers would be gone by 9:30 pm.  Night shift staff would come in three different batches: 9:30 pm, 10 pm, and 11 pm.

14.  On the day when money was stolen by the defendant, she came in to work at 9:30 pm.  She did the preparation work for re-starting business at 11 pm.  Later (morning of next day), when he came out from the kitchen to look for her, he could not find her.  All the drawers (at the cashier counter)  were however open.  He then returned to work in the kitchen and made a police report later that day or the next day.  The amount of cash stolen was $450,000, contained in packets.  They were (a)  his staff’s salaries and were packed by himself at home that night in preparation for the next day’s payday; (b)  money intended to settle outside debts/bills.  He took these packets to the restaurant at 9:30 pm that day.

15.  By reference to photo album P2, in photo 7, the right hand side of the metal cabinet below the two metal drawers contained staff salaries and money for settlement of outside debts/bills; the right-side drawer contained changes when customers paid in the sum of $10,000, no more no less; the left-side drawer contained daily revenue from 11 pm to 9:30 am (later changed to 9 pm under cross-examination)  of a sum between $1,000 and $3,000.  All of the stolen cash of $450,000 came from the right hand side of the metal cabinet at the bottom.  None of it came from the two drawers.

16.  The other footages of Cameras 12, 7 and 10 shown in court (together P5)  may relate to different incidents from the subject incident (shown in footage of Camera 4 (P3)).

17.  As regards the defendant’s work duties, she could stand in for any duty including duty at cashier counter and cleaning.

18.  The roller shutter would be rolled down during the transition between the two shifts and would only be rolled back up at 11 pm.  The defendant would normally report duty at 9:30 pm but she could and sometimes would come back to start work early, sometimes as early as around 8 pm.

19.  PW1 has previous convictions.

20.  PW1 gave the following evidence under cross-examination. There were 20 full time staff members and an unfixed number of part-time staff.  The defendant had never been a full time staff; she only worked on casual basis.  She normally worked night shift and probably as a miscellaneous worker.  She got paid everyday.  Cleaning of the restaurant took place between 9 pm and 9:30 pm.  However, sometimes, when the cleaning could not finish in time, it would flow over after 9:30 pm and would be done by the night shift staff.  Staff would wear gloves when doing the cleaning.

21.  After the incident, PW1 did report to the insurance company which required him to report to the police.  So he did.  Eventually, he was only offered a sum of $30,000 to $40,000 by the insurance company as compensation.

22.  PW1 disagreed to the suggestion that he had no idea the amount of money that went missing.

23.  Unless the defendant had stolen the key to the gate, otherwise there was no way she could have entered the restaurant.

24.  When it was suggested that the night shift staff could enter the restaurant themselves, PW1 disagreed and said that it must be him (PW1)  who came back and opened the gate with key at 9:30 pm.

25.  The cash of $450,000 is composed of 25 bundles: 20 bundles for full time staff’s salaries and 5 bundles for settlement of outside bills.

26.  The “Ngan Tau” (銀頭)  of $10,000 for cash flow (ie for change when customer paid)  consisted of $20 notes and $10 notes etc.

27.  Video footage of P3 (ie Camera 4)  and P5 (Camera 12 thereof)  were shown to PW1 again.  He confirmed that in P3, it was shown that the defendant took from the two top drawers.  He further confirmed that in P5 (Camera 12 thereof), the footage showed the defendant stole from the drawers (but probably on a different occasion to that in P3); he added that the footage showed only a second consecutive entry into the restaurant with the first one only a moment prior (but which was not shown in the footage)  [prosecution told me that there was no such “first entry”].  According to PW1, the first entry related to stealing from the bottom metal cabinet; the second entry related to stealing from the top 2 drawers.

28.  Defence handed up a criminal conviction record of PW1 (marked MFI-1)  without objection from the prosecution showing PW1 had 12 previous court appearances totaling 15 previous convictions the majority of which were related to violence.

29.  At re-examination time, prosecution initially said there was no need.  But they later changed their mind after there was further questioning of PW1 by the court.

30.  In any event, on reviewing P3 (ie Camera 4), PW1 now said on this occasion (ie the subject incident according to the Admitted Facts P4), the defendant stole first from the bottom metal cabinet, and immediately thereafter stole from the top 2 drawers.

31.  On reviewing P5 (Camera 12 thereof), PW1 confirmed that on the first of two consecutive entries into the restaurant (the first entry not actually shown in the footage), the defendant stole $450,000 from the bottom metal cabinet.  PW1 confirmed that P3 (ie Camera 4)  and P5 (Camera 12 thereof)  probably showed two different incidents.

32.  When asked by the court whether the total loss from the metal cabinet on the two occasions amounted to $900,000, PW1 gave an incoherent answer.

33.  Still later, when P5 (Camera 12 thereof)  was again re-shown to PW1, he now said the footage showed the defendant stole from the bottom metal cabinet as well as from the top drawers.  PW1 further said that he could not be sure the P5 (Camera 12 thereof)  footage related to the same incident as that shown in P3 (ie Camera 4).

Summary of the defendant’s written Record of Interview

34.  The written Record of Interview was admitted without challenge. In it, the defendant stated the following.

35.  On the day of the offence, she worked as a part-time odd-job worker at the subject restaurant.  She stole money (amount not recalled)  from the iron cabinet at the cashier counter of the restaurant at 9:46 pm on 14 May 2020.  The reason for theft was she was in debt because of gambling in Mahjong and she acted out of momentary greed.  That time, no colleagues were around so she went to the cashier counter and took the money from the iron cabinet underneath.  She lost all the stolen money in gambling.

36.  She knew her boss kept cash in the iron cabinet as she had worked there for a few years.

My consideration

37.  I reminded myself of the burden and standard of proof ie it is for the prosecution to prove the defendant’s guilt beyond a reasonable doubt. The defendant has to prove nothing least so her innocence.

38.  I wholly ignored PW1’s evidence that there were other incidents of stealing perpetrated by the defendant at the restaurant.

39.  It is clear from exchanges between the court and parties that term “metal cabinet” was defined differently between the two parties. Prosecution defined it as that metal compartment below the two metal drawers underneath the cash register.  Defence defined it to mean the whole metal structure composing of the two metal drawers aforesaid and the metal compartment below them.

40.  What’s more, in the photo album P2, at respectively photos 8/11 & 12, there were shown two other “metal cabinets” (description agreed to by the parties)  unrelated to the charge.  Interestingly, the prosecution appeared to have called them differently ie “drawers” in its Opening Submissions, at page 2 line 2.

41.  As if there was not enough confusion already, PW1’s evidence relating to the video footages created even more confusion.  The major confusion came from his evidence that the 4 video footages from the 4 cameras (Cameras 4, 12, 7, 10)  probably related to 4 different incidents, which version was contrary to the prosecution case which was that the 4 footages were proximate in time and related to the one single incident.

42.  Obviously, the prosecution could not rely on PW1 to link the 4 footages together.  Having viewed the entirety of all 4 footages carefully, I am satisfied that Cameras 7, 12 and 4 captured from different angles the same incident that is the subject of the present charge, though there may be extra images exclusive to one particular footage because of the camera angle and also because the footages are of different lengths.  I am not satisfied beyond a reasonable doubt Camera 10 captured the same incident despite the fact that Camera 10 shares the same mistaken date and time stamps as Cameras 7 and 12.

43.  By virtue of paras 2 & 6 of the Admitted Facts P4, the subject incident happened at about 2145 hours on 14 May 2020 and was caught on camera by P3 (ie Camera 4).  Because of my satisfaction aforesaid, I am also satisfied that Cameras 7 and 12 (of P5)  captured the prelude to the incident including the defendant’s entry into the restaurant.

44.  As such, I am satisfied of the following facts:-

(a)  The defendant, wearing a cap, a short-sleeves upper garment, a pair of trousers, a face mask and a pair of gloves and carrying a handbag, appeared outside the gate at the front door of the restaurant and bent her body;

(b)  Once the gate was partially rolled up, she entered the restaurant; after she entered the restaurant, the gate rolled down;

(c)  Once the defendant entered the restaurant, she walked to the cashier counter and knelt down;

(d)  Whilst kneeling down at the cashier counter, the defendant opened two drawers and took something therefrom; and

(e)  Then the defendant left the cashier counter and walked into the restaurant with the handbag in her hands.

45.  Prosecution says that the speed with which the defendant approached the cashier counter right after entry into the restaurant showed she must have been laboring under an intention to steal at the time of entry. What’s more, the prosecution says, she was wearing mask and gloves on entry.

46.  Defence says that the defendant was an employee; that she was simply returning to work hence she was not a trespasser.

47.  Defence submitted that wearing mask and gloves in the height of COVID was nothing out of the ordinary; the defendant’s duties included cleaning thus rendering the wearing of gloves innocuous.  These submissions of the defence have force.

48.  The defence added that in the mixed cautioned statement, the defendant said that she was at work that day; when she saw there were no colleagues around, she went to the cashier counter to steal.

49.  It’s clear from the evidence of PW1 that he was both unbelievable and unreliable as to his many comments on seeing the video footage(s).  I am sure he was guessing about the two entries by the defendant when he was looking at the Camera 12 footage.  Besides, the prosecution never included as part of its case the stealing of key(s)  in order to gain entry into the restaurant – that part of the evidence about the stealing of key(s)  came only under cross-examination of PW1, out of a sudden and sounded more like an outburst.  I am of the view that PW1 was ready to add colour to his version of what happened whenever the occasion suited him.  That part of PW1’s evidence about the loss of money to the tune of $450,000 on the subject occasion or any other occasion was just so unreliable that I can attach no weight to it.

50.  However, having viewed the relevant footage (P3 ie Camera 4)  many times, I am convinced that the defendant did steal (cash)  from the two drawers.  This is admitted to by the defendant under para 2 of the Admitted Facts P4 in any event.

51.  I note that according to the unchallenged evidence of PW1, the right hand drawer normally contained $10,000 and the left hand drawer contained up to $3,000.

52.  Mr Donald assured me in his closing submissions that the defendant would maintain her plea of theft of approximately $14,000.

53.  The only remaining question appears to be whether the defendant had an intention to steal at the time of entry.  Having viewed the relevant footage (Camera 12 of P5)  many times, I will say that because of the speed with which the defendant approached the cashier counter upon entry, there is a strong suspicion that the defendant went into the restaurant with an intention to steal.  However, it is also possible that she only formed that intention upon seeing that there were no colleagues around, moments after entry, as what she alleged in the mixed cautioned statement.  I will give the defendant the benefit of the doubt.

Conclusion

54.  For the above reasons, I found the defendant not guilty as charged but guilty of the alternative charge of theft, with the amount of cash stolen being approximately $14,000 as was pleaded guilty to when plea was first taken.