HKSAR v. SAMIULLAH

DCCC 766/2025

[2026] HKDC 1187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 766 OF 2025

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REASONS FOR VERDICT

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THE CHARGE

1.  D1 and D2 faced a joint charge of ‘Burglary’, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 (Charge 1).

2.  D2 pleaded not guilty to the charge and the trial took place before me.

OUTLINE OF PROSECUTION CASE

3.  At the time of the offence, Mr Chen Yujun (“PWI”)  was the tenant of Room B, 6^th Floor of the building situated at 151 Ki Lung Street, Sham Shui Po, Kowloon (the “Premises”). Mr Hong Kim Ming (“PW2”), the landlord of the Premises, had a split type air-conditioner installed in the Premises. The cooling machine of the air conditioner (the “Cooling Machine”)  was fixed at the rooftop of the building (the “Rooftop”).

4.  In the morning of 18 March 2025, PW1 left the Premises for work. At around 1130 hours, he received a phone call from his wife concerning the Cooling Machine.

5.  At around 1800 hours, PW1 finished work and returned home. At the junction of Wong Chuk Street and Ki Lung Street, he saw D1-D2 pushing a trolley with a cooling machine on it. PW1 then went up to the Rooftop where he met up with PW2. They found the Cooling Machine missing from the Rooftop and went downstairs to locate D1-D2. The case was reported.

6.  Upon police arrival, PW2 confirmed the cooling machine on the trolley was stolen from the Rooftop. D1-D2 were arrested.

PROSECUTION EVIDENCE

7.  A set of Admitted Facts was produced under section 65C of the Criminal Procedure Ordinance, Cap. 221 and marked as Exhibit P4. Among other things, a photo album with 12 photos was produced and marked as Exhibit P3(1)  – (12).

PW1’s evidence

8.  PW1 confirmed he was the tenant of the Premises at the material time. At around 1130 hours on 18 March 2025, he received a call from his wife whilst at work. His wife told him that something happened to the Cooling Machine at the Rooftop. The wife also took a photo and sent it to him.

9.  At around 1800 hours, PW1 finished work and left for home. Whilst on his way, he saw 2 South Asian males pushing a trolley towards Cheung Sha Wan Road with a cooling machine on it. There is no dispute that the 2 South Asian males are D1-D2 in the present case. PW1 took a photo of D1-D2, which was printed out and produced as P3(12). PW1 identified the cooling machine on the trolley as the one placed at the Rooftop.

10.  PW1’s wife called the police. D1-D2 were later arrested.

11.  In cross-examination, PW1 confirmed that, as a matter of fact, he had not seen the Cooling Machine before. He also agreed that the cooling machine on the trolley looked similar to the one in the photo sent by his wife.

12.  PW1 confirmed in P3(12)  that D2 was the one wearing a clean, white striped shirt with a backpack on his back. He said the location depicted in P3(12)  was about 10 metres from his home. He confirmed when D1-D2 were seen pushing the trolley, they were walking very slowly.

13.  PW1 also agreed that when he and PW2 went back to the street from the Rooftop, he saw D2 standing near the junction of Wong Chuk Street and Fuk Wa Street. The trolley was then by the roadside.

PW2’s evidence

14.  PW2 confirmed renting the Premises to PW1 in August 2018. He said a split type air conditioner was included in the tenancy agreement and he had paid HK$10,000 for its purchase and installation.

15.  According to PW2, there was a gate at the entrance of the building and members of the public would need a key to enter. In addition, the Cooling Machine was secured at the Rooftop by multiple screws and a ladder would be required to gain access to the location. PW2 believed that the offender(s)  gained access to the Rooftop from the roof of an adjacent building.

16.  PW2 said he believed the cooling machine (Exhibit P1)  depicted in P3(1)  was his property. In relation to the cooling machine depicted in P3(2), (4)  and (5), he said he thought it was his property.

17.  In cross-examination, PW2 was not sure if the air conditioner was installed in 2017 but agreed that it had been a long time. He did not know the brand or model of the air conditioner but said it was of 1 horse power.

18.  With reference to the cooling machine (P1)  depicted in P3, PW2 was asked: “You couldn’t tell (it’s your Cooling Machine as) there are thousands of these air conditioners, no difference from hundred other air conditioners, (they are) exactly the same? He replied, “yes”.

19.  Nevertheless, PW2 maintained that P1 was his property. Apart from repeating what PW1 had told him, he also questioned why the electrical wires and ducts of P1 were cut if it was not stolen from the Rooftop.

PW3

20.  On the day in question, PW3 received instruction from the police console to attend the scene. He arrived at 1824 hours and was shown the photo taken by PW1, ie, P3(12). He later arrested D2 whilst his colleague arrested D1.

21.  In cross-examination, PW3 confirmed D2 was standing at the junction of Wong Chuk Street near Fuk Wa Street when he arrived. He also confirmed no tools or anything suspicious were found on D2’s person, his black backpack or sling bag.

22.  PW3 was shown a copy of Google map (Exhibit D1). He estimated that it would take around 3-4 minutes to walk from Ki Lung Street to the junction of Wong Chuk Street and Fuk Wa Street.

23.  PW3 confirmed D2 mentioned that he was living nearby.

DEFENCE CASE

24.  Upon the close of the Prosecution case, the Defence submitted there was ‘no case to answer’ on the charge. Having considered the evidence and Counsel’s submissions, I ruled there was a case to answer.

25.  D2 elected to give evidence but call no other witness.

D2’S EVIDENCE

26.  D2 confirmed his status as a Form 8 holder in Hong Kong.

27.  He gave evidence that the present incident took place during the months of Ramadan and he had to fast and pray from time to time. Sometime prior to his arrest on 18 March 2025, he had gone to Sham Shui Po market to buy food as it was a break for his fasting. He also bought items including a wall clock, an alarm clock and a cabinet for use at home. Whilst on his way home, he met D1, who was then pushing a trolley with a cooling machine on it. He knew D1 was living in the area but they were not friends as such. At that time, D1 asked him to help stabilise the cooling machine as the trolley was weak and wobbly. As they were heading towards the same direction, he agreed. He put the cabinet he bought on top of the cooling machine and helped stabilising the trolley as they walked. When they got to Fuk Wa Street, he told D1 that he had no time and needed to go home. D1 then asked him to stay for 2 minutes more as D1 wanted to find another trolley. Whilst he was waiting there, the police approached him and asked for his document of identity. Around 5 minutes later, D1 returned with another trolley but they were both arrested by the police.

28.  D2 denied ever going up to the Rooftop or the building at 151 Ki Lung Street. He said he would not have helped D1 had he known that P1 was stolen property.

29.  In cross-examination, D2 was questioned about the money he had for buying food and stuff for his home. He explained that, apart from the food card provided by the Government, his family in Pakistan also supported him by sending him money. D2 denied getting any reward for helping D1 and maintained that it was a natural thing to do as they were walking towards the same direction.

30.  D2 also said there were a lot of Pakistani people doing air conditioner business in Sham Shui Po and it was a normal thing to see a Pakistani push or carry an air conditioner on the street.

31.  It was put to D2 that he should know that P1 was stolen property as it was both dented and broken. D2 disagreed.

LEGAL DIRECTIONS

32.  The burden of proof is on the Prosecution, and the standard is one of proving the charge beyond reasonable doubt. D2 has given evidence in this case and if I find his explanation trueful or maybe trueful, I should give him the benefit of doubt.

ANALYSIS OF EVIDENCE

33.  I have carefully considered the evidence of PW1-PW3. On the whole, I find them credible witnesses and accept their evidence. However, none of them was able to prove that P1 was the Cooling Machine stolen from the Rooftop. Indeed, the Prosecution also accepted during half-time submissions that PW2 could not recognise his own Cooling Machine.

34.  As there was no direct evidence proving that P1 was stolen property, I need to consider whether an irresistible inference can be drawn from the circumstances of the case.

35.  The fact that D1-D2 were seen pushing a trolley with P1 on it near the scene of crime, namely, 151 Ki Lung Street, was enough to arouse suspicion. However, the conditions of P1, namely, that it was dented and broken with electrical wires and ducts cut, were equally consistent with the inference that it was meant for scrap and recycling. More importantly, given the lapse of some 6-7 hours between the time PW1 received his wife’s call and his sight of D1-D2 pushing the trolley, one can hardly be sure that P1 was the Cooling Machine stolen from the Rooftop.

36.  As to D2’s evidence, it was straightforward and not shaken in cross-examination. There was no evidence that he had been to the scene of crime nor was anything relating to the burglary found on him. Moreover, given the locality in question, it does not sound untenable for D2 to say that “there were a lot of Pakistani people doing air conditioner business in Sham Shui Po and it was a normal thing to see a Pakistani push or carry an air conditioner on the street”.

37.  On the whole, I do not find D2’s explanation regarding his encounter with D1 wholly implausible. All in all, I am not able to draw the irresistible inference that D2 knew or believed that P1 was stolen property.

38.  Having carefully considered the whole of the evidence, I am not satisfied that the Prosecution have proved the charge beyond reasonable doubt.

39.  D2 is acquitted of the charge.