HKSAR v. GURMEET SINGH

DCCC 240/2025

[2026] HKDC 1390

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 240 OF 2025

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REASONS FOR VERDICT

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1.  D faces a total of 8 charges, namely:

(1)  5 charges of “Burglary”, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap. 210 (Charges 1, 2, 3, 4, and 7).

(2)  1 charge of “Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 (Charge 5).

(3)  1 charge of “Attempted Theft”, contrary to section 9 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200 (Charge 6).

(4)  1 charge of “Going equipped for stealing”, contrary to section 27(1)  of the Theft Ordinance, Cap. 210 (Charge 8).

2.  D pleaded not guilty to all 8 charges, and the trial took place before me.

The Prosecution case

3.  The case arose out of offences that took place at 2 construction sites and their locations were respectively:

(1)  near Lamppost No. EA0589, Junk Bay High Level Fresh Water Service Reservoir (Covered)  Tsui Lam Road, Tseung Kwan O, New Territories, Hong Kong (“Site 1”); and

(2)  near Lamppost No. EA5870B to Lamppost EA1334B, Po Lam Road North, Tseung Kwan O, New Territories, Hong Kong (“Site 2”).

4.  There were containers in both Sites, some of which were used to store materials, and some were converted into container offices. 

5.  At around 7 am on 24 June 2024, PW1, staff at Site 1, discovered that 6 of the containers were broken into.  Items were stolen from 5 of them whilst the 6^th one was ransacked (Charges 1-6).

6.  CCTV footages captured a South Asian male (“Suspect”)  entering Site 1 through a hole in the wire fence and committing the offences.  The case was reported. Among other things, the Suspect was seen riding a white electric bicycle with a black tail box (“Bicycle”).

7.  At around 7:45 am on 27 June 2024, PW2, staff at Site 2, discovered that some of the containers were broken into. Items were stolen from one of them (Charge 7).

8.  CCTV footages captured the Suspect appearing at Site 2 between around 11:47 pm on 26 June 2024 and 12:35 am on 27 June 2024. The case was reported.

Police Investigation

9.  PW4 discovered that the Bicycle was being put up for sale on Carousell.  He met PW3, the seller, at around 4 pm on 1 July 2024 outside 333 Tai Nan Street, Sham Shui Po (“333”).  PW3 revealed that he bought the Bicycle from a South Asian male in the vicinity of 333 and resell the same on Carousell.

10.  Upon further enquiries, PW4 and his colleague went to the rooftop of the building at 333 (“Rooftop”)  where they found, among other things, two pairs of sneakers (“Sneakers”)  resembling those worn by the Suspect in the CCTV footages, and a black handsaw (“Handsaw”)  allegedly belonged to the Suspect. 

11.  At around 7:10 pm on the same day, PW4 intercepted D at 333 for inquiries. D was carrying a black rucksack (“Rucksack”). D told PW4 that he had no money to pay rent, so he and his wife had been living on the Rooftop. D was cautioned and he admitted, among other things, that:

(1)  he committed the offences at Site 1 and Site 2; and

(2)  he sold the Bicycle to a Hong Konger for HK$900 near Tai Nan Street.

12.  Upon search of the Rucksack, PW5 found two torches, two pairs of pliers, and one bolt cutter (Charge 8).

Prosecution Evidence

Admitted Facts (P1)

13.  Pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, the Prosecution case was largely admitted and the exhibits including the following were produced:

(1)  A USB flash drive containing the CCTV footages of Site 1 (P2);

(2)  An optical disc containing the CCTV footages of Site 2 (P3);

(3)  Photos of Site 1 [P4(1-32)];

(4)  The screenshots of the CCTV footages contained in P2-P3 [P5(1-15)];

(5)  Photos of the exhibits seized in relation to the present case [P6(1-8)]; and

(6)  Photos of the Rooftop and items found thereon taken by PW5 [P7(1-8)].

Prosecution witnesses

PW1/ Mr. YUE Ming-kit (Charges 1-6)

14.  PW1 was a senior project engineer at ATAL Engineering Ltd., which was responsible for the engineering works of a grey water treatment plant on Anderson Road.  To carry out the engineering works, there were about 11 containers placed at Site 1 for storage and use as offices.  CCTV was installed thereat.

15.  PW1 said that Site 1 was enclosed by wire fences with a gate. He attended Site 1 at around 9 am on 24 June 2024.  He saw the padlocks of 6 container offices had been prised open and a number of items were stolen. 

16.  PW1 last attended Site 1 on the Friday prior to 24 June 2024.  The containers were locked with external padlocks before he left. Most of the padlocks were broken and found on the ground outside the containers, but one or two were missing.

17.  PW1 confirmed the following were missing from the containers:

(1)  Container 1: Two rolls of copper wires and two rolls of electrical wires were stolen (Charge 5);

(2)  Container 2: One box of electronic parts (Charge 1);

(3)  Container 3: One electric drill and one laptop (Charge 2);

(4)  Container 4: Two laptops (Charge 3);

(5)  Container 5: Two laptops (Charge 4); and

(6)  Container 6: There were traces of the container having been ransacked but nothing was missing (Charge 6).

18.  The total value of the stolen items was around HK$87,000.  Even though 3 out of 4 rolls of wires in Charge 5 were recovered, they were damaged and could not be used.

19.  PW1 reviewed the CCTV footages of Site 1 (P2)  and confirmed that the Suspect seen in the footage did not work at Site 1 and PW1 had not met him before. PW2 was also shown photos P5(1)  and (2). 

20.  In cross-examination, PW1 confirmed that, to his knowledge, neither his company nor its subcontractors employed any South Asian workers during the project period.  He only checked 3 out of the 6 burgled containers before he left Site 1 on Friday.  PW1 confirmed from the CCTV footages that the Suspect entered Site 1 via a hole in the fence. He did not know who cut the hole or when it was cut.  He accepted that, apart from the Suspect, other people could have entered Site 1 through the hole.

21.  In re-examination, PW1 confirmed of all the CCTV footages he watched, whether it was for Saturday the 22^nd or Sunday the 23^rd, the Suspect was the only one he saw entering Site 1.

PW2/ Mr. WU Jiarong (Charge 7)

22.  PW2 was an electrician working for the Chun Wo - Kwan Lee Joint Venture at Site 2.  Site 2 was enclosed with water barriers with CCTV installed thereat.  There were container offices on Site 2.  The working hours of Site 2 were 8 am to 6 pm, Monday to Saturday. 

23.  At around 7:45 am on 27 June 2024, PW2 returned to work at Site 2 and found that the passcode lock of one container office was damaged, and next to this container, there were two other containers, one of which had an open door. This container had been ransacked, and its external passcode lock was missing. An electric screwdriver, a reflective vest and a roll of electrical wire had been stolen.  The value of the stolen property was about HK$7,000.  There were also other items stolen but they were handled by PW2’s boss.

24.  Prior to 27 June 2024, PW2 last attended Site 2 on 26 June 2024. When he left Site 2 that day, the passcode locks were locked, and the container doors were closed.

25.  PW2 confirmed that the Suspect seen on the CCTV footages of Site 2 did not work there nor had PW2 seen him before.

26.  In cross-examination, PW2 agreed that the Suspect in the footage sometimes appeared with a facemask and sometimes without, so one could not be sure if it was the same person.  However, based on the hairstyle and the height, PW2 thought it was the same person, though he could not be 100% sure. PW2 also agreed that Site 2 was on the roadside, so pedestrians could have access to it.

27.  Gist of CCTV footages that were played in court were agreed by parties and marked as MFI-1 and MFI-2 respectively.

PW3/ Mr. Wong Yiu-chung

28.  The witness statement of PW3 was produced as evidence under s.65B of the Criminal Procedure Ordinance, Cap. 221 (P8/P8A).

29.  PW3 identified the bicycle that he bought in photo P6(1).  He said the male riding the Bicycle in photos P5(11)  and (12)  was the one selling him the bicycle.  He had seen the seller 1-2 times before at Tai Nan Street, where he traded in bicycles.  He clarified that the statement taker of P8 had made a mistake as he did not know the seller. 

30.  In cross-examination, PW3 agreed that there were a lot of South Asians in Sham Shui Po area, including the vicinity of Tai Nan Street.  He confirmed that he had traded with South Asians on more than 1 occasion.  He agreed the Bicycle in photos P5(11)  and (12)  was different from the one sold to him as there was a tail box.  He also agreed that the photos were dark, and he had no basis to say that the male depicted was the seller. However, in re-examination, he said that, apart from the missing tail box, he did not notice anything different between the 2 bicycles.

PW4/ PC 8317 and PW5/ PC 13299

31.  The evidence of PW4 and PW5 was summarized in the “Agreed Summary of the Evidence” (MFI-5).

The Defence case

32.  At the close of the Prosecution case, I ruled there was a “case to answer” on Charges 1-8.

33.  D elected not to testify or call any evidence.

Legal Directions

34.  The burden of proof is on the Prosecution, and the standard is one of proving the offences beyond reasonable doubt. D has nothing to prove and that no adverse inference could be drawn against him for his election not to testify or call any evidence.

35.  There are 8 charges in the present case, and I bear in mind that I should consider the evidence on each charge separately.

Issues in the case

Charges 1-7

36.  Counsel for D does not dispute that the offences were committed.  The Defence case is that D was not the Suspect captured on CCTV.  Besides, D never told PW4 that he lived on the Rooftop or made any oral admissions as alleged.

37.  Counsel for D also submits that the offences could have been committed by people other than the Suspect as the hole through which the Suspect entered Site 1 might have been there for quite some time.  However, there was no evidence before me that there were other people entering Site 1 at the material times.  In fact, the Suspect was the only person captured on CCTV.

38.  Leaving aside the CCTV footages and D’s alleged admissions for the moment, even accepting the Suspect was the seller of the Bicycle, there was no evidence from PW3 identifying D as the seller. Likewise, even accepting that the Handsaw and the Sneakers seized from the Rooftop belonged to the Suspect, there was no evidence linking D to the Rooftop. That being the case, the Prosecution heavily rely on the evidence of PW4 and PW5, who took part in the interception of D and, in particular PW4 who was responsible for questioning D.

Charge 8

39.  The Defence dispute that D was in his possession of the Rucksack when the police intercepted him.

40.  Counsel for D also submits that even on the Prosecution case, i.e., D was living on the Rooftop, he was at his place of abode when PW4 intercepted him, so he should be acquitted of the charge. With respect, I do not agree. Even if D was on the Ground Floor of the building when PW4 saw him, he could not be said to be at his place of abode as there were at least 8 other floors and different premises on each of them.

Evaluation of PWs’ evidence

41.  There was little challenge to the evidence of PW1 - PW3 and each of them gave simple and straight forward answers to the questions asked. Having carefully considered their evidence, I find them honest and reliable witnesses and accept their evidence.

42.  As to PW4 and PW5, they were extensively cross-examined by the Defence, and the focus was mainly on their credibility and reliability.

43.  In assessing their evidence, I have considered Counsel’s respective submissions and all circumstances of the case. The following are some of the matters that cause me concern:

(i)  Was D intercepted at 374?

44.  PW4 said that D ran from 333 and was intercepted at 374 Lai Chi Kok Road, Sham Shui Po (“374”). PW5, on the other hand, said that he saw his colleagues and D at 374 but, in cross-examination, said that D was intercepted in the back alley. He later explained that the other end of the back alley was 374.

45.  Counsel for the Prosecution acknowledges that there was a discrepancy in their evidence but submits that it was a minor one which should not affect the credibility or reliability of the rest of their evidence.

(ii)  Did PW4 ask D if he understood Punti at 374?

46.  PW4 said that they, including D, remained at 374 for around two to three minutes. During that time, he disclosed his police identity, and they needed to calm down after the chase. PW4 maintained that he did ask D whether he understood Punti before leaving 374, and that D answered in the affirmative.

47.  In cross-examination, PW4 accepted that there was no record of him asking the question in his notebook. He explained that it was not a question asked under caution but claimed that he had recorded it in his witness statement. After reviewing his statement, however, he confirmed that no such record existed. When asked to explain the discrepancy, rather than answering directly, he kept saying that D was able to understand Punti because he had had no difficulty communicating with D in Punti.

48.  According to PW5, they stayed at 374 for about 1 minute. He did not recall whether PW4 had asked D if he spoke Punti, though he disagreed with the suggestion that D never spoke Punti to any of them.

49.  Counsel for the Prosecution relies on the post-record in PW4’s notebook (MFI-3/MFI-3A)  and submits that PW4 had asked D whether he understood Punti after each caution, and that D replied that he understood on two of those occasions. First, however, the post-record referred to the cautioning of D at 333 and not to what happened at 374. Secondly, the post-record was never signed or acknowledged by D and was merely an aide-memoire of PW4’s evidence.

50.  Ultimately, this is a question of credibility: PW4 said that he asked D whether he understood Punti at 374, yet there is no record of it in either his notebook or his witness statement. Moreover, PW5’s evidence on this point does not appear to support him either.

(iii)  Why D had to be taken back to 333 for investigation

51.  After being intercepted at 374, D was escorted back to 333, some 100 metres away, for investigation. PW4 said that he did not consider it suitable to conduct the investigation at 374 because there were many people around. He also said that D’s answers might relate to the “geographical location”, and that returning to 333 would help D express himself better.

52.  First, when PW4 made inquiries of PW3 at Tai Nan Street, he said that civilians stopped and gathered around to watch. PW3 also mentioned that there were many South Asians in the vicinity of Tai Nan Street. In addition, when PW4 made inquiries of the Informant, who refused to provide his particulars, the Informant expressed concern that too many neighbours were watching and feared that people of the Suspect’s ethnicity would take revenge on him. Given the heavy flow of people at Tai Nan Street and the circumstances of the case, I do not understand why PW4 had to interview D on the pavement outside 333 rather than somewhere closer to 374, such as the back alley.

53.  Secondly, D was cautioned only after he had been taken back to 333. I therefore fail to see how PW4 could have known in advance that D would answer questions under caution, or that his answers might relate to the “geographical location” at 333. In any event, if PW4 truly had no difficulty communicating with D in Punti, I see no difference between questioning him at 333 and questioning him in the back alley near 374.

(iv)  Why was the Rucksack searched at 333 and not earlier?

54.  Both PW4 and PW5 said that D had the Rucksack with him when he was intercepted at 374. That being so, one would expect the officers to search the Rucksack as soon as possible for their own safety, bearing in mind that they did not know whether it contained any offensive weapon and that D had not yet been handcuffed. Yet both officers said that the Rucksack was searched only at 333. While I accept that it might not have been appropriate to search it at 374 owing to the presence of others, I do not understand why they did not do so in the back alley on their way back to 333.

55.  Further, given the nature of the items found in the Rucksack — in particular, the bolt cutter — I find it odd that neither officer gave any evidence of questions being put to D about them. Indeed, there was no evidence that D was ever cautioned in respect of his possession of those items.

56.  As to the time of the search, PW5 gave two different answers. He initially said that it was around 7:23 pm but, in cross-examination, put it at around 7:18 pm. These, however, were the very times at which PW4 cautioned D for the second and fourth times. Moreover, PW4 stated categorically that, while PW5 searched the Rucksack, he was standing guard and did not speak to D, as D had to pay attention to the search. If PW4 is correct, no search of the Rucksack could have taken place at either 7:18 pm or 7:23 pm. If PW5 is correct, he would have been searching the Rucksack while PW4 was cautioning D. Their accounts simply cannot be reconciled.

(v)  Was D cautioned outside 333, and did he make the Oral Admissions as alleged?

57.  PW4 said that he cautioned D a total of four times at 333, and that he made a contemporaneous record of D’s replies in his notebook.

58.  First, when Counsel for D challenged PW4’s ability to recite the details of the two construction sites — including the time and place of the offences and the quantity and value of the stolen items — PW4 said that he had used the time while lying in ambush on the first floor of 333 to memorize the information contained in the “Crime Messages”. Since he had the “Crime Messages” with him, I do not see why he needed to memorize the information in advance. In any event, I have reservations as to whether he could in fact recite the information as fully and precisely as recorded in his notebook.

59.  Secondly, PW4 said that he spent some 2 to 3 minutes administering each caution and a further 2 to 3 minutes recording each reply. According to MFI-3/3A, the four cautions were administered at 7:14 pm, 7:18 pm, 7:20 pm and 7:23 pm respectively. If those records are correct, the second caution and the recording of D’s reply took only 2 minutes to complete, which is hardly believable. It is equally implausible that the third caution and reply were completed in 3 minutes. On top of this, there was the search of the Rucksack, which lasted around 3 to 5 minutes.

60.  PW4 said that he, together with D, remained at 333 for around 20 minutes before leaving for the police station. Adding up the time spent on the cautions, the recording of the replies and the search of the Rucksack, it is plain that all of this could not have been completed within 20 minutes or so. I therefore have serious doubts about the accuracy of the time records in the notebook and about PW4’s evidence regarding the cautioning of D.

61.  I am prepared to accept that, as a Hong Kong Identity Card holder, D should be able to understand and speak some Punti. That is not the same, however, as saying that he was able to communicate fully with PW4 without an interpreter. Since PW4 was not even sure whether D could read or write Chinese, I do not understand why he had to question and caution D at the scene rather than through an interpreter at the police station. PW4 intercepted D at around 7:10 pm and took him to the police station at around 7:35 pm; I seriously question why the investigation had to be completed within some 25 minutes, and I do not understand why they had to leave the vicinity in such haste.

(vi)  Why was D not taken to the Rooftop for investigation?

62.  PW4 said that he did not do so because his supervisor, SSGT Fung, had instructed him to take D to the police station.  He said that, in his judgment, D was emotional after the arrest and was therefore handcuffed. He added that there was insufficient manpower to take D up to the Rooftop safely.

63.  PW5, on the other hand, said that no one ever suggested taking D to the Rooftop. As D was agitated at the time, they wanted to take him back to the police station as soon as possible. He later said that D had become agitated sometime after the search of the Rucksack, but that he was unsure of the reason.

64.  According to MFI-3/3A, PW4 declared the arrest and cautioned D at 7:18 pm. He then went on to caution D for the third and fourth times and was able to make contemporaneous records of D’s replies as well. In these circumstances, I have great difficulty reconciling the suggestion that D was emotional with the suggestion that he was, at the same time, cooperative and making the oral admissions as alleged. As for PW5’s claim that D was agitated after the search, there is no mention of it in PW4’s evidence, and even PW5 himself could not explain the reason.

65.  As to manpower, since D was handcuffed by that time, I fail to see why PW4, PW5 and SSGT Fung, acting together, would not have been able to manage him. If necessary, they could have summoned assistance and waited for other colleagues to arrive. I simply do not understand why the investigation had to be carried out in such haste.

(vii)  Why was the Rooftop searched and the exhibits seized in the absence of D?

66.  PW5 gave evidence that he carried out a house search of the Rooftop at around 8:40 pm. He also took photos [P7(1-8)], including of the Rooftop and the items found on it.

67.  When shown photo P7(2)  and asked by Counsel for D who the person in the background was, PW5 replied that he did not know, and said that he had not seen that person at the time.

68.  It is inconceivable that PW5 and SSGT Fung could have spent some 15 to 20 minutes on the Rooftop without noticing that another male was present. It is equally difficult to accept that PW5 did not see the male in the background when he took photo P7(2), and that he only became aware of the male when he saw the photo in court.

69.  As to the discrepancies in the evidence of PW4 and PW5, Counsel for the Prosecution submits that they are minor, and that it is not uncommon, where officers have distinct roles (e.g., arresting officer and exhibits officer), for their evidence to be largely confined to their own roles. However, I find that these were not mere discrepancies: the officers actually contradicted each other on material aspects of the case, in particular the cautioning of D and the search of the Rucksack.

70.  All in all, I have doubts as to whether D did run from 333 to 374, and whether he was in possession of the Rucksack when he was intercepted. Nor can I be sure that D made the admissions, both before and after caution, as alleged.

CCTV footages

71.  Counsel for the Prosecution submits that the CCTV footage (P2)  — particularly the daytime footage — together with the screenshots (P5), is of sufficient quality for the court to conclude that the Suspect and D are one and the same person.

72.  Counsel for the D, on the other hand, submits that even in the daytime CCTV footage of Site 1, the image of the Suspect is small and his face unidentifiable. As for the footage of Site 2, it was shot in night vision mode, and the quality and resolution are too poor for identification purposes.

73.  I have viewed the CCTV footages and accept that the daytime footage of Site 1 affords a better view of the Suspect’s appearance. However, I have not been provided with any photo of D taken after his arrest, and I have been able to observe D only during the trial, while he is in the dock. Even PW4, who was involved in the investigation and the arrest, was unable to identify any distinctive facial feature common to both the Suspect and D. In the end, beyond concluding that the Suspect had a hairstyle and general facial features similar to those of D, and that D looks like the Suspect, I cannot be sure that they are the same person.

74.  Given the doubts in the evidence of PW3 and PW4 and the identification of D as the Suspect in the case, the Prosecution have failed to prove Charges 1-8 beyond reasonable doubt.

Conclusion

75.  D is acquitted of Charges 1-8.