|
DCCC 476/2021
[2021] HKDC 1577
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 476 OF 2021
________________________
________________________
| Before: |
Deputy District Judge W.H. Ko |
| Present: |
Mr Lai Kin Hei, Lucas, Public Prosecutor, for HKSAR |
| |
Mr Polson Ian Hastings, instructed by WT Law Offices, assigned by the Director of Legal Aid, for the defendant |
________________________
REASONS FOR VERDICT
________________________
1. The defendant was charged with one count of burglary, contrary to s 11(b) and (4) of the Theft Ordinance, Cap 210.
2. The particulars of the charge alleged that he on 30 January 2021 entered Room 1003, 10th Floor, The Rainbow, No 22 Wang Yip Street South, Yuen Long in the New Territories (hereinafter referred to as the “premises”) as a trespasser and had stolen one hoodie.
3. The defendant pleaded not guilty to the charge. He admitted that he stole the hoodie inside the premises but denied he was a trespasser. The prosecution did not accept the defendant’s plea as to the statutory alternative and proceeded the charge against the defendant.
Background
4. The premises, located in the top floor of a commercial building (the “Rainbow”), is a co-working space known as Metropolitan Work Space Ltd (“Metropolitan”) with a common area, a balcony and 21 sub-divided rooms rented to tenants for use as offices. There is a staircase connecting the balcony to certain area of the roof top which was designated to the sole and exclusive use of Metropolitan by the Rainbow. The premises and the rooftop are covered by CCTV.
5. Entry to the premises via the main entrance requires an access card, which is provided by the management of the Metropolitan to the tenants and the staff. The door leading from the common area to the balcony, however, was not secured by a lock.
Prosecution case
6. The prosecution called 3 witnesses. They are Mr Mak (PW1), one of the tenant of the Metropolitan, Mr Hui (PW2), the security guard of the Rainbow and Ms Chan (PW3), the manager of the Metropolitan at the material times.
7. Mr Mak is a tenant of Room 2 of the Metropolitan. He left Room 2 unlocked at around 12:30 am on 30th January 2021. When he returned to Room 2 at around 7:30 am on 1st February 2021, he discovered that a white hoodie, which was a gift from the Metropolitan had gone missing. He also found out certain items, which did not belong to him, were left on the desk inside Room 2. Within those items there were a surgical mask and one beanie with bloodstain on it. He then took a photo of the surroundings of the room and sent them via WhatsApp to the person in charge of Metropolitan.
8. Mr Mak was being shown certain footages of the CCTV and he recognized that windbreaker and the white hoodies wore by the defendant when he was seen inside the premises belonged to him. Mr Mak confirmed that he did not know the defendant.
9. DNA examination of the Beanie and the surgical mask showed that human DNA matching with DNA originated from the defendant was found on the inner surfaces of the Beanie and the Surgical Mask respectively.
10. Mr Hui recalled that while he was on duty at the lobby of Rainbow at around 7:30 pm on 30th January 2021, he saw a south Asian male walked past the guard counter behind him. The male made a hand gesture and Mr Hui understood that he wanted Mr Hui to open the door of the lobby for him. As Mr Hui is not proficient in English, he waved at the male indicating that the door was not locked. The male then pushed the door on his own and left. Mr Hui left his duty at around 8:00 pm.
11. On 31st January 2021 at around 2 pm, Mr Hui saw the same male appeared at the main entrance of the Rainbow. The male requested to come inside and Mr Hui asked him where he was going to and the purpose of his visit. The male said he wanted to find the boss. Mr Hui believed that he was a not tenant so he made up an excuse by telling him that the boss was not here. The male left without entering the Rainbow.
12. Subsequently at around 7 pm on the same day, Mr Hui noticed the same male whom he met earlier on was trying to make an entry into the Rainbow by following some of the visitors. Mr Hui asked him where he was going to but he did not reply. His entry was denied by Mr Hui.
13. On 1st February 2021 at around 4 pm, Mr Hui again noticed the same male was sitting at the main entrance of the building opposite to the Rainbow. At that time the police were conducting investigation inside the Rainbow and Mr Hui informed the police that the male had entered the Rainbow before and the police then arrested him.
14. Ms Chan explained that the Metropolitan is running on a membership system and opened 24 hours for members who possessed the access card. The rented rooms inside the premises are secured by a lock and keys will be provided to the paid tenants. Tenants and their guests can have free access to the facilities and the beverage supplies inside the common area, provided that the tenants had to be staying inside the premises at the same time.
15. Ms Chan recalled when there was a need to move certain items to the roof top, she and her staff would use the rear staircase of the Rainbow and reached an area of the roof top which was surrounded by walls of approximately 1 m tall[1]. They would then use a ladder to climb over the wall and accessed to the area of the roof top designated for their uses.
16. Ms Chan confirmed that the defendant was not a tenant of Metropolitan and the white hoodie which the defendant wore, as depicted in the CCTV, was a gift to the tenant from Metropolitan.
17. All prosecution witnesses confirmed that they have not seen or recognized the Chinese female nor the Pakistani male as shown in the photographs[2] produced by the Defence.
18. CCTV captured the acts and movements of the defendant inside the premises and the roof top from 18:44:30 to 20:14:13 on 30th January 2021 and 110 screen captures of the CCTV footages were produced as exhibits.[3] The following is a summary of what was shown in the CCTV footages:-
18:44:30 The defendant was seen trying to pull open the entrance door of the premises but failed.
19:02:09 The defendant walked down the staircase from the roof top to the balcony of Metropolitan.
19:02:26 The defendant entered the common area of the premises through the balcony door.
19:02:37 The defendant tried to open the doors of different rented rooms inside the premises.
19:03:34 The defendant opened the door of Room 2 and entered the room.
19:09:37 The defendant walked out of Room 2 wearing a white hoodie with a windbreaker outside, a pair of shorts and he was on his bare foot.
19:10:17 The defendant was wandering around the common area and at some time tried to open the doors of different rooms.
19:11:07 The defendant washed his hands inside the common area.
19:13:00 The defendant then again wandering in the corridor and entered room 2 again.
19:16:21 The defendant left room 2 and walked in the corridor. He was seen talking to a male at the corridor for around 30 seconds, the male then opened the door of one of the rooms and closed the door.
19:20:50 The defendant left room 2 and changed to a black long trousers and black coat. He was still wearing the white hoodie.
19:21:01 The defendant entered another room which the door was opened.
19:24:00 The defendant left the room and he was wearing a face mask.
19:26:12 The defendant took a cup inside the kitchen and drank, he then put the cup on the table, took a hat placed on top of a cabinet, tried on and then threw it on the table, he left the premises through the main entrance, he tried to open the main entrance door but failed.
19:41:04 The defendant was seen sitting next to a table on the roof top.
19:46:23 The defendant walked down the staircase leading from the rooftop to the balcony.
19:46:43 The defendant stood at the balcony door for 20 seconds and then entered the premises via the door.
19:47:30 The defendant again tried to open the doors of different rooms.
19:48:55 The defendant entered room 2.
19:59:48 The defendant walked out of the room 2 and looked through the glass door of another room and then back to room 2.
20:03:04 The defendant left room 2 and tried to open different doors of the rooms
20:05:08 The defendant tried to use something to open the door of one of the rented room but failed.
20:06:21 The defendant again tried to open the doors of different rooms.
20:07:44 The defendant was wandering in the common area and left the premises via the balcony door.
20:08:16 The defendant was seen walking up the roof top via the staircase leading from the balcony.
20:11:24 The defendant was seen jumped up to the wall at the roof top, took a leap and reached the other side of the roof top, and then he climbed back.
20:11:35 The defendant entered the premises via the balcony.
20:11:54 Two males entered the premises via the main entrance, the defendant left the premises through the main entrance and he got back to the premises just before the entrance door was completely closed.
20:12:00 The defendant was seen sitting in the balcony.
20:13:00 The defendant went back to the premises via the balcony, he met two other males at the common area and he had no interactions with them.
20:14:13 The defendant (still wearing the hoodie) left the premises via the main entrance.
Defence case
19. The defendant elected to give evidence and called no defence witness.
20. The defendant is 27 years old. He was born in Nepal and came to Hong Kong with his family members when he was 2 years old. He then went to UK to further his studies when he was a teenager. Having finished college studies’ in UK, he received physical training and acquired the status of senior pro boxing. He then worked as a personal trainer in UK and participated in various boxing competitions both in HK and UK. He returned to HK in 2017 and worked in the fitness industry. In 2018, He won the 75 kg boxing championship in Hong Kong. Since the breakout of COVID-19, he did not join any boxing competition. Before the date of the offence, he was working as a freelance trainer. He also worked for Yuen Long Town Hall Support Service Centre for Ethnic Minorities as a Boxing for Fitness’s tutor with an hourly salary of $300 on a contractual basis.
21. In January 2021, the defendant had a traffic accident and he was hospitalized for 5 days. He applied for government assistance under the TAVA and received a monthly subsidy of $16,000 for 6 months. As a result of the accident, he was not able to carry on the contract with the Yuen Long Town Hall.[4]
22. The defendant claimed that during his hospitalization, he happened to know a Chinese girl named Galatea via a mobile application called Tinder. They exchanged WhatsApp messages and decided to meet up. During the meeting in Tai Po, Galatea told the defendant that she studied psychology in England, her father was a rich man and he had associations with triads. Their relationship got intimate but somehow they started having conflicts and arguments in WhatsApp and Instagram a couple of days later.
23. The defendant said that he was living in Yuen Long with his brother, mother and sister-in-law and he enjoyed hanging around the area near Rainbow. On 27th January 2021, a Pakistani male approached the defendant near the Rainbow and asked him why didn’t he meet the girl in that building. He further told the defendant that he worked for a girl and that she wanted to meet the defendant in that building. The male did not give the details of the location where the defendant could find the girl but the defendant assumed the girl was Galatea and the building the male referring to was the Rainbow. The defendant claimed that he exchanged phone numbers with that Pakistani male but he didn’t go to the Rainbow on that day.
24. On 28th January 2021, the defendant was assaulted by a group of 14 to 15 people with metal rods and wooden pole when he was hanging around near the Rainbow. The Pakistani male was within the group. The defendant said that he had a concussion on his head and he bleed a lot. The group left as long as they witnessed the defendant’s bleeding. He returned home and then went to the police station to make a report. He was sent to Pok Oi Hospital. He complained that he was asked to wait several hours for stiches in the Emergency Department and so he went home without proper treatment. A medical chit dated 28 January 2021 was produced to show that he was assaulted on his head and left arm[5].
25. The defendant said that he made a call to Galatea afterwards and asked whether she was responsible for the assault. Galatea denied his accusation. Subsequently the defendant discovered that Galatea had blocked all means of contacts, including social media application, with him.
26. After the assault, the defendant was worrying that his family members might be in danger and he was in fear with Galatea. He also claimed that he had received WhatsApp messages, with words “l love you” from the Pakistani male[6]. He believed Galatea had instructed the male to forward the messages to him. He then decided to go to the Rainbow on the evening of 31st January 2021 in order to confront her. He admitted that he did not contact the Pakistani male before he went to the Rainbow on that day.
27. Since the defendant was not provided with any particulars of the location where Galatea wanted to meet him, he took the staircases and tried to check on the offices at different floors. He then proceeded to go to the roof top. He looked around the roof top and went back to the 10th floor via the rear staircases. He noticed there was a dining table and some semi offices inside the premises and he believed that was Galatea’s office. He tried to open the door of the premises but it was locked. He then went up to the roof top again, and found a staircase connecting the roof top and the balcony of the premises. He took that staircase and eventually entered the common area of the premises.
28. The defendant said that he stayed in the common area for a few minutes and he asked some of the males inside the premises where their boss was. Those males replied that the boss was not here yet and invited the defendant to take a seat and have some water. He explained he tried to open the doors of different rooms to check whether Galatea was inside. He entered room 2 as he was getting bored waiting and the door was not locked. He said he deliberately took the Beanie with his bloodstain with him and he left that on the desk inside the room in order to show to Galatea that he was beaten. He noticed there was a white hoodie inside Room 2 and he decided to wear that. He claimed that he changed his clothing as he wanted to make himself look better when he had a chance to see Galatea.
29. Eventually the defendant left the premises. He claimed he was upset and disappointed of not able to meet Galatea. He took the hoodie back home and disposed of it into the charity donation box. He said that he was trying to go inside the Rainbow again as he still wanted to connect with Galatea.
30. The defendant admitted under cross-examination that he did not know whether he had the authority to enter the premises. He somehow felt the Rainbow was owned by Galatea or her father.
Verdict
31. I bear in mind that the prosecution bears the burden of proof and the standard is beyond reasonable doubt. The defendant has no duty to prove anything.
32. I also remind myself that a court may only draw an inference if that inference is the only reasonable inference to be drawn from proven facts. If there exists both a reasonable inference against and in the defendant’s favour then the adverse inference cannot be drawn.
33. In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Polson, counsel of the defendant, in particular the financial position of the defendant and there were other valuable items such as computer monitors and systems inside Room 2 which the defendant did not steal at all.
34. I find all prosecution witnesses to be honest and credible. I accepted their evidence. In fact, most of their evidence was not challenged by the Defence.
35. In respect of the defendant’s evidence, I find that inherently improbable that the defendant would enter the Rainbow without asking the Pakistani male (i) for the particulars as to the meeting place; (ii) whether Galatea was within the Rainbow on 31 January 2021; (iii) whether Galatea would like to meet him.
36. Regarding the WhatsApp messages which was allegedly sent to the defendant by the Pakistani male, the defendant never raised queries with the sender in WhatsApp whether those messages were forwarded to him by Galatea, or whether Galatea was using the Pakistani male’s phone to make contact with him. He simply chatted with the sender as if they were lovers before. I find his actions incredible.
37. The defendant claimed that he was afraid of Galatea and wanted to confront her. He brought the beanie with his bloodstain in order to prove that he was heavily beaten, but at the same time he thought there was a need to make himself look better before Galatea by changing his clothing. Even so, he took off his shoes and wore a short with a piece of clothing tying around his waist and wandering inside the premises at some stage. I find his explanation implausible.
38. The defendant was seen attempting to open the doors of the rented rooms at different times while he was inside the premises. There was no need to check repeatedly whether Galatea was inside when he already knew that those doors were locked.
39. Mr Polson emphasized that the defendant did not attempt to hide his face while he was present in the premises and that he only stole a hoodie with minimal value. Mr Polson submitted that his acts were inconsistent with someone with an intention to burgle. A thief or burglar might find the need to pretend as if they were the lawful users of the premises, especially when there were other tenants inside the premises. Whether an item is valuable to a particular person depends on circumstances. Further, it might be difficult to steal computer monitors and systems, given their sizes, without alerting other tenants inside the premises. I do not find the defendant’s acts unusual.
40. I find defendant’s evidence incredible, illogical and defies common sense. I rejected his evidence in its entirety.
41. The defendant was seen trying to open the main entrance of the premises but it was locked. 20 minutes later he was seen going down the staircase connecting the roof top to the balcony of the premises. He entered the common area of the premises as the balcony door was not secured by a lock. Shortly after he entered the premises he attempted to open the doors of different rooms but they were locked. He went inside Room 2, which the door was not locked, and took a white hoodie belonged to PW1. He left the premises wearing the hoodie. No permission was given to the defendant to enter the premises. The only irresistible inference that can be drawn from the facts is that the defendant knew that he did not have any authority to enter the premises but nonetheless did so via the route from the roof top to the common area of the premises. His action of taking the hoodie with him must be dishonest. I find that he entered the premises as a trespasser and committed theft therein.
42. I am satisfied the prosecution has proved all the elements of the offence beyond reasonable doubt and the defendant is convicted of the charge.
|
( W.H. Ko ) |
|
Deputy District Judge |
[1] Exhibit P4(12), photograph of the roof top
[2] Exhibit D2 and D3
[3] Exhibit P6(1)-(110)
[4] Two letters were produced to show that the defendant was employed by Yuen Long Town Hall on a contractual basis from 15 November 2020 to 27 December 2020 and he could not carry on the contract as a result of the injury since 9 January 2021: exhibit D1(A-B)
[5] Exhibit D4
[6] Exhibit D5
|