HKSAR v. CHAN YUK CHUN

DCCC 1009/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1009 OF 2012

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to a charge of attempt burglary and an alternative charge of loitering with intent.

2.  The premises concerned are residential premises situated on the second floor of  No. 276 Temple Street Yau Ma Tei, Kowloon ( the premises). The alleged offences occurred at approximately 1.30pm  on Monday 13 August 2012.  Cheung Stephen ( PW1) lives at the premises with his wife and daughter. At the material time, PW1 was home alone.

3.  It was alleged that the defendant was one of four men involved in the offences. PW1 saw four men outside his room behaving suspiciously. He rang the police  and gave them descriptions of the men involved. The police  arrived shortly afterwards. The defendant was arrested on the ground floor of 276 Temple Street and a man called Chan was arrested at the staircase between the first and second floor. They fitted the descriptions of two of  the men involved. The other men was not located.

Prosecution evidence

4.  The prosecution evidence was largely unchallenged.

5.  PW1 told the court that he arrived at the premises at about 1.20 pm on 13 August after dropping his daughter off at school. His wife was at work.

6.  At the entrance to the premises there is an iron gate and a wooden door. PW1 could not recall if he closed the iron gate after entering his premises but he said he did lock the wooden door by pressing a button on the inside of the door lock attached to the door handle.

7.  PW1 said that at 1.30pm he heard his door bell being pressed continuously for about 2 minutes. PW1 said that whilst it was being pressed he went to the wooden door and through the spy hole in the wooden door he could see an unknown, neatly dressed, Chinese male outside, male A. PW1 said that A was later joined at the landing outside his flat by two Chinese males, B and C. PW1 said that he saw that B came from upstairs to join A and had a shoulder bag across with the strap across his right shoulder with the bag resting on his left hip. PW1 said the third man, C, came from downstairs to join A and he was wearing a  dark T shirt and dark shorts and wearing shoes which exposed his toes. PW1 said there was a fourth man whom he did not see clearly who also was carrying a shoulder bag.

8.  PW1 said that the men had a conversation outside his flat and A again pressed his doorbell for about one minute. PW1 said that one of the other males pressed the doorbell of his neighbour. PW1 said that B appeared to be looking for something in his shoulder bag. . PW1 said that whilst the doorbell was ringing for the second time he rang the police on his mobile phone and gave them a brief description of the men.

9.  PW1 said that a few moments later his landline telephone rang and he went to switch it off. PW1 said that when he returned he saw that only A remained outside his door. PW1 said about 10 seconds later he heard what sounded like a police car siren and A moved away from the door. PW1 said he was not able to see their faces clearly through the spy  hole.

10.  PW2, a police officer, said that after the police report had been made, he attended the scene and saw the defendant coming down the staircase of the flat towards the ground floor entrance. He said that the defendant fitted the general description of the men who had been reported behaving suspiciously. PW2 said that the defendant said he had been looking for a friend called Ah Kei who lived on the 3/F of the premises. PW2 found a mirror, E1, in the right rear trouser pocket of the defendant’s shorts and a one-way journey MTR card, E2 inside his wallet.

11.  A few minutes after the defendant was detained a second man, Chan Kin –on ( Chan),  was intercepted between the 1^st and second floor of the building. He was wearing  a dark T-shirt and shorts and was carrying a shoulder bag, E3. Inside the shoulder bag was a comb attached with a mirror and a magnifying glass with a lighting function, E5.

12.  The defendant elected not to give evidence nor call any witnesses.

Directions

13.  I reminded myself that the prosecution must prove guilt beyond reasonable doubt, the defendant has nothing to prove and no inference could be drawn from his election to remain silent.

14.  I reminded myself that the defendant’s  exculpatory statement to PW2 was admissible as evidence of its truth.

15.  I reminded myself that where a court relies on circumstantial evidence, it can only draw inferences from facts proved beyond reasonable doubt and that such inferences must the only inferences that can reasonably be drawn, they must be irresistible.

Evaluation of the Evidence

16.  The prosecution evidence was unchallenged.  Four men were behaving in a suspicious fashion outside the flat occupied by PW1 and he quite rightly rang the police. PW1 gave a general description of the men to the police but was unable to recognize their facial features.

17.  The police attended shortly afterwards and the defendant was arrested by PW2 whilst leaving the building. The defendant fitted the general description of one of the men behaving suspiciously outside PW1’s flat. The defendant claimed he was in the premises visiting  a friend whom he knew only as Ah Kei, he was unable to supply any further details of Ah Kei. In his possession the police found a wooden mirror with a handle in his rear short’s pocket and a single journey MTR card, E2, in his wallet on which there were scratch marks.

18.  PW2 did not invite the defendant to show him where he had been in the building or ask him precisely what he had done whilst there.

19.  Shortly after the defendant was detained a second man, Chan,  was detained who also fitted the general description of the men supplied by PW1. Chan  had a shoulder bag in which he had a comb with a mirror and a magnifying glass with a lighting function.

20.  There was no evidence of any further search of the building being conducted by the police.

21.  In order to establish the guilt of the defendant on either of the charges the prosecution must prove each and every ingredient of the offence beyond reasonable doubt. Any circumstantial evidence relied upon must point irresistibly to any conclusion the prosecution invited the court to draw. The evidence adduced must be cogent and persuasive.

22.  The defendant was arrested in highly suspicious circumstances, especially when one considers the totality of the evidence. However, in my view, the evidence was insufficient to establish his guilt of the defendant on either of the charges to the required standard.