HKSAR v. VELU PILLAI MUTHURAJAN NAVANITHA KRISHNAN

DCCC 123/2019

[2019] HKDC 1452

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 123 OF 2019

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Reasons for Verdict

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1.  The defendant pleaded not guilty to one count of burglary. After trial, I now give the reasons for verdict as follows.

The Prosecution Case

2.  It was alleged that at about 10 pm on 5 September 2018, Wednesday, the defendant contacted the driver of a GoGo Van, PW2 Wong, to go to 22/F of Harbour Industrial Centre near Ap Lei Chau to collect goods and deliver the same to Tsing Yi Industrial Centre. The goods included 24 boxes of “Double Happiness” evaporated filled milk, 50 boxes of “Alda” cream milk and 50 bags of “Golden Temple” wheat flour. These goods belonged to PW1, Singh G Brar.

3.  PW1 who is a food wholesaler and runs a business called “Indian Provision Stores” (the “Store”). The store has a number of warehouses in Harbour Industrial Centre including Flat 2218. It was alleged that these goods were stolen from the store.

4.  On 10 September 2018, police located 23 boxes of “Double Happiness” evaporated milk, 28 boxes of “Alda” cream milk and 33 bags of “Golden Temple” wheat flour from Room E6, 6/F, Block E, Tsing Yi Industrial Centre Phase II in Tsing Yi.

5.  On 5 October 2018, PW2 Wong identified the defendant in an identification parade as the person who hired him to pick up and deliver 3 pallets of goods from Ap Lei Chau to Tsing Yi.

6.  The prosecution alleged that the defendant burgled the warehouse and stole these goods.

The Defence Case

7.  The defendant, a Form 8 holder, claimed that all along he was hired by PW1 for a daily wage of $200. He was given a bunch of keys by PW1 to unlock the door or gate of the warehouse. The defendant was acting in accordance with PW1’s instruction to deliver the goods. As such, the defendant was not a trespasser and did not steal the said goods from the store.

The Trial

8.  Pursuant to section 65C of Cap 221, the following facts are admitted by both parties (Exhibit P5 and P5A):

1. Singh Daljit is the owner of Agam Trading Company (“Agam”)

2. The business address of Agam was Room E6, 6/F, Tsing Yi Industrial Centre, Cheung Tat Road, Phase 2, Tsing Yi (the “Tsing Yi premises”).

3. On 10 September 2018, police seized from a light goods vehicle SV 1761 one box of “Double Happiness” evaporated filled milk. The vehicle was registered in the name of Singh Daljit. The box of milk is produced and marked as Exhibit P2.

4. On 4 October 2018, Wong Ka-hong identified the defendant in an identification parade as the person who met him on 5 September 2018 and hired him to move goods from Flat 2218, 22/F, Harbour Industrial Centre, Ap Lei Chau to the Tsing Yi premises.

5. Police officer drew a sketch of the Tsing Yi premises which is produced and marked as P3 and the certified translation thereof as P3A.

6. A photo album as described in the list of content is produced and marked as P4(1-69).

7. The chain of all the exhibits is not contested.

8. The photograph of the screen shot of the WhatsApp application of Wong Ka-hong’s iPhone is produced and marked as P6.

9. At all the material dates, the defendant was a holder of Form 8 Recognizance.

PW1 - Singh Gurdev Brar

9.  He was born in India and came to Hong Kong in 1963. He operated a shop called Indian Provision Store. He owned the unit at Room 2218, 22/F, Harbour Industrial Centre and used it as one of the warehouses to store goods. His shop sold food products, including Double Happiness evaporated milk, Alda cream milk and Golden Temple wheat flour, to shops, restaurants and big companies in Hong Kong, like the CX caterers, the Jockey Club, etc. He had 8 employees and one of them is his brother-in-law, Singh Natha (PW3). He also has units on the 15/F to 19/F of the same building as godowns.

10.  PW1 said there were locks on the metal gate of the godowns. Sometimes, they also used padlocks. Sometimes, the bunch of 15 to 20 keys was kept by PW1 and sometimes by PW3. PW1 put the bunch of keys in one of the drawers in his shop which is situated at Perfect Commercial Building in Bowrington Road, Wanchai.

11.  In September 2018, PW1 had 4 vehicles with 4 drivers. Shortly after 5 September 2018, PW1 discovered some goods that had been packed went missing from Room 2218 of Harbour Industrial Centre. These goods included 40 to 50 bags of Golden Temple wheat flour, 24 cartons of Double Happiness milk and 40 to 50 boxes or cartons of Alda milk. The total value of these goods amounted to about $18,000. A report was made.

12.  Subsequently, the goods that went missing were located in Agam’s premises. PW1 said he did not know Agam’s owner Singh Daljit but agreed that Agam had purchased goods from his store about 3 times in the past three to four months. PW1 said he did not sell those goods to Agam at the material time. PW1 maintained that his store was the distributor of the Alda milk and Golden Temple flour, and they put certain special markings on the cartons.

13.  Later PW1 was taken to the Tsing Yi premises to identify some of the goods that were allegedly stolen from his store. From the photos, PW1 also found some “QVB” butter fat which was not listed in the particulars of the offence. PW1 said he could identify the goods belonged to him by looking at the dates printed on the cartons. PW1 said that Premier Enterprise Limited was the supplier of some of the goods but other companies also supplied similar products.

14.  PW1 produced 2 documents entitled “credit sales”. Both were issued to Agam with the same date, 4 September 2018. They bear different serial number, namely, C01201 (Exhibit P7) and B24158 (Exhibit P9), with different items and different amount of money. PW1 said that the credit sales document P9 came from an old sales book, and took the view that the goods stated therein were stolen. PW1 maintained that P7 is a genuine one as there is an initial of his staff, Sharma, at the bottom left corner of the document.

15.  Corresponding record of this sale can also be found in PW1’s office accounts book. The relevant page of the accounts book is produced as Exhibit P8. The sale to Agam Trading was recorded.

16.  Under cross-examination, PW1 said he kept the accounts book in his office. The store did not carry out regular stock checks. PW1 did not recall if he first met the defendant in a Sikh temple back in 2012. PW1 denied that he employed the defendant since 2012. Upon warning against self-incrimination, PW1 refused to answer whether he did employ the defendant on the date of the offence, 5 September 2018. Nor did PW1 answer whether he employed six to seven Form 8 holders.

17.  PW1 also refused to answer whether his store used new labels to replace labels depicting the expiry date. PW1 denied that the defendant got $200 per day as a casual worker for the store. He also denied that in March or April 2018, the defendant had told him that the defendant would stop working for the store as there was another company which would pay him $500 per day, and 6 September 2018 would be the defendant’s last working day for the store.

18.  PW1 denied that he was very unhappy about the defendant’s departure. He denied that he had asked the defendant to deal with the boss of Agam directly. PW1 denied that he gave a bunch of keys of the warehouse to the defendant. But he agreed that his warehouse on the 15/F, 16/F, 17/F and 19/F stored different kinds of products. Some of the products were parallel goods. PW1 accepted that the driver PW2 Wong had made delivery of goods from Ap Lei Chau on 31 occasions.

PW2 - Wong Ka Hong

19.  He owned a medium goods vehicle SZ 9942, and he subscribed to GoGo Van apps to offer service to customers. On 5 October 2018, PW2 identified the defendant as the man who asked for his service.

20.  On 4 September 2018, the defendant used the apps to contacts PW2 to transport goods from Harbour Industrial Centre to Tsing Yi. PW2 had similar dealings with the defendant since August 2017. PW2 communicated with the defendant in simple English and broken Cantonese. PW2 received payments in Tsing Yi but later the mode of payment was changed to bank transfers. PW2 had gone to 19/F, 21/F and 22/F of Harbour Industrial Centre to collect the goods.

21.  It was the defendant who told PW2 the destination and PW2 would meet the recipient of goods in the Tsing Yi premises.  PW2 would unload the goods in the carpark of the Tsing Yi premises and then took a photo of the goods and sent the same to the recipient through WhatsApp. PW2 nicknamed this man as “the Tsing Yi Indian.” The recipient would make a phone call to PW2 to confirm that he was the right man to collect the goods.

22.  PW2 would be paid $1,700 for each delivery which usually was made on Saturdays and at about 10 pm to 11 pm. Usually PW2 met the defendant in Ap Lei Chau. On the average, PW2 made similar delivery about 2 to 5 times per month. He kept the record in his WhatsApp. When asked, the Prosecution informed this Court that it is not necessary to produce the WhatsApp messages.

23.  At about 10 pm on 5 September 2018, PW2 got a call from the defendant who asked him to deliver the goods from Ap Lei Chau to Tsing Yi. PW2 arrived at Ap Lei Chau at about midnight and met the defendant on the 22/F. The goods were placed on the pallets outside the godown on the 22/F. PW2 moved the goods to the carpark and put the goods into his van. He even gave a ride to the defendant and dropped him at the South Horizon MTR Station before going to Tsing Yi. PW2 unloaded the goods, sent a picture to the recipient and then left. The Tsing Yi Indian still owed PW2 $2,200.

24.  Under cross-examination, PW2 accepted that in July 2016, he was contacted by an Indian called Sunny to move goods from Ap Lei Chau to Tsing Yi. Sunny regularly engaged PW2 for 2 to 3 times per month, and quite often Sunny went to Tsing Yi with PW2. Another Indian would meet them at the loading area to collect the goods. Starting from August 2017, it was the Tsing Yi Indian who engaged PW2 to go to Harbour Industrial Centre to get the goods and then proceeded to Tsing Yi. Quite often PW2 met the defendant on the 19/F, 21/F or 22/F of the Centre. PW2 called the defendant as the “Ap Lei Chau fat man”.

25.  After 18 September 2017, it was the defendant who contacted PW2 to transport goods from the Centre to Tsing Yi. As of 6 September 2018, there were 31 times or even more that PW2 made the delivery in this way. It was the defendant who took out a bunch of keys to unlock the gates of the warehouse. Nothing done by the defendant raised PW2’s suspicion. It was Sunny or the Tsing Yi Indian who paid for the delivery service. PW2 was shown some of the screen shots of his WhatsApp messages (Exhibit DP1A to 1C). PW2 said since December 2016, Sunny did not contact him anymore. He accepted that what happened on 5 September 2018 was similar to those previous occasions. Most of the time, the goods that PW2 transported were milk, flour and food products.

PW3 - Natha Singh

26.  He worked for PW1 who is his brother-in-law. Sometimes PW1 would give him a bunch of about 20 keys to open the warehouses.

27.  On 5 September 2018, PW3 noticed that 24 cartons of Double Happiness milk, 50 bags of Golden Temple flour and 50 cases of Alda milk missing. He said he had prepared these goods to be delivered one day before. They would put those goods on the pallets inside the warehouse. PW3 did not know PW2, the driver. Nor did he know the company Agam.

28.  PW3 said they had about 8 permanent workers in the Store. At first, PW3 said he did not know if the company hired any part-time workers but later agreed that sometimes they had workers to help unloading goods from containers. PW3 had no idea if the casual workers had Hong Kong ID cards or not. PW3 also denied any knowledge of or did not answer as to whether there was a practice to replace the label of the expiry date on the products.

PW4 - DPC 13487 Leung Ho Wan

29.  On 10 September 2018, PW4 was instructed to go to the Tsing Yi premises and seized some goods therefrom.

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30.  That is the end of the Prosecution case. There was no half time submission, and the defendant elected to give evidence.

The defendant’s evidence

31.  He was born in 1984 in Tamil and received high school education. He has no conviction record in Hong Kong. The defendant came to Hong Kong legally as a visitor in 2010 and then made a claim for asylum and is now a Form 8 holder.

32.  In 2012, the defendant met PW1 in the Sikh temple. The defendant told PW1 that he is an asylum seeker but PW1 still asked the defendant to work for his company. The defendant started to work for PW1 from February 2012 and PW1 was the boss of Indian Provision Store.

33.  The defendant was paid $200 per day and usually the defendant was paid in cash once a week. The defendant worked six days per week from 8:45 am to 10 pm. The defendant was required to clean the office on Sundays. The defendant was responsible for loading and unloading goods, and arranging delivery. The defendant also needed to replace labels of the expiry dates on the products. The defendant worked in the shop in Wanchai. Sometimes the defendant has to accompany drivers to make delivery. The defendant also has knowledge of the Store’s customers, like the Aberdeen Marina Club, the Ocean Park, the Disneyland Hotels, the Cathay Pacific catering, the Football Club, etc.

34.  The defendant said there were 6 to 7 people, who were also Form 8 holders, working in the Store. There were stickers in the cupboard which were used to replace labels of the expiry dates or thinner to erase the expiry dates marked on the containers of the products.

35.  Last year, the defendant met a Chinese man who was willing to offer a job to the defendant with $500 per day. The defendant told PW1 that he wanted to work for that man, but PW1 asked the defendant to stay longer and the defendant continued working for PW1 for five more months. PW1 was friendly to him. In August 2018, PW1 gave the defendant a bunch of keys of the godowns and told the defendant about the goods to be delivered to Agam. The defendant told PW1 that his last working day for the Store would be 6 September. The defendant knew that Agam was a regular customer of the store. PW1 told him to deliver those goods that had the dates expired to Agam. PW1 also gave the defendant the key to open the gate on 5 September and the defendant returned the keys in the shop in Wanchai.

36.  Under cross-examination, the defendant said he met the Chinese man in North Point in March 2018 and was asked to work in construction sites. The wage was $500 per day. The defendant did not have any contract with PW1 who usually made records of payments in his notebook. The defendant did not propose to PW1 to raise his wages.

37.  Starting from 2015 or 2016, the defendant was asked to deliver goods to Agam. Normally it was about 3 to 4 times a week. It was also the normal practice to make delivery at midnight, even though the normal delivery was done between 9 am to 5 pm. In or around 2014, PW1 started to give the defendant a bunch of 15 to 20 keys.

38.  That is the end of the Defence case.

Analysis

39.  All along, it is the duty of the Prosecution to prove the case beyond reasonable doubt. The defendant has no duty to prove anything. The fact that the defendant has no previous record in Hong Kong means that legally the defendant has a good character and his propensity to commit crimes in Hong Kong is low.

40.  The Prosecution alleged that the defendant burgled one of the warehouses of the store in Ap Lei Chau, and stole a large quantity of evaporated milk, cream milk and wheat flour as particularised in the offence. The defendant called PW2 to transport the goods from Ap Lei Chau to the Tsing Yi premises. It is obvious that PW2 needed to use forklift to move the 3 pallets from 22/F to the car park of Harbour Industrial Centre.

41.  It transpired that this was not the first time for PW2 to deliver goods for the defendant to the Tsing Yi premises. At a later stage, the recipient of these goods, nicknamed Tsing Yi Indian, paid PW2 by means of bank transfers. It was suggested there were at least 31 similar occasions. There was no specific allegation that the defendant stole the bunch of keys. It was suggested to PW1, the owner of the Store, that in fact they employed those people, like the defendant, who are Form 8 holders.

42.  It was further suggested that the store exploited these Form 8 holders by paying them wages of meagre sum. In the case of the defendant, he got just $200 per day and has to work long hours.

43.  It was put to PW1 that the defendant and other workers were asked to change labels of the expiry dates placed on the products to deceive customers. The defendant was able to tell roughly what kind of goods were stored in the warehouses on various floors in Harbour Industrial Centre. The defendant was also able to name those big customers of the Store, including Cathay Pacific, Hong Kong Jockey Club, Hong Kong Football Club, etc. It shows that the defendant did have some information about the Store.

44.  It is noteworthy that the goods allegedly being stolen were of large quantity: 74 boxes of two different kinds of milk and 50 bags of wheat flour and the goods were placed on pallets. They are quite heavy in weight. One has to use forklift to move these goods which obviously would attract much attention from other occupants of the building.

45.  PW2 admitted that he had done similar delivery for at least 31 times, and virtually the defendant was involved on each occasion. If the defendant was not one of the employees, whether lawfully employable or not, it would be unimaginable to see why those responsible in the Store did not notice that, and eventually made a report to the police. Although I would not speculate as to why PW1 made a report to the police on this occasion, I cannot rule out the possibility that presumably it was the last day of the defendant working for the Store. Whether there was any malpractice on the part of the store to remove or change the labels of the expiry date on the packaging of the products was not really an issue in the present case.

46.  I will not accept what was said by the defendant in total. But that said, the Prosecution cannot shatter his evidence to a material extent. The defendant said that he started to work for PW1 back in 2012 and he was no stranger to the Store. PW1 even trusted the defendant and let the defendant have a bunch of keys. The defendant had been in contact with the driver PW2 to make deliveries at least for more than 31 occasions. It was usually the case that the delivery of the goods was from Ap Lei Chau to Tsing Yi, and it was the Tsing Yi Indian who paid for the delivery service. There were many goods stored in the Store’s warehouses on various floors, and yet the present burglary charge confined to only 3 kinds of products with a total value of about $18,000. It is not clear as to how PW1 can identify those goods appeared in the photo (Exhibit P6) were his stolen goods, and there was also certain quantity of QVB butter fat depicted in the photo and these butter fat was not listed in the particulars of the offence.

47.  I have no doubt that the circumstances surrounding this case are dubious and there are many questions remain unanswered. Owner of Agam was not or could not be called as a witness. Nor was the other employee of the Store, Sunny, called.

48.  Taking all factors into consideration, I am of the view that both PW1 and PW3 are not truthful and reliable witnesses. Although the conduct of the defendant was suspicious, I rule that the prosecution cannot prove the case beyond reasonable doubt. In the circumstances, I acquit the defendant of the charge of burglary.

49.  Lastly, I would also direct the prosecution to refer what transpired in the present proceedings to the relevant departments, especially the Immigration Department, to see if any further actions are warranted.