HKSAR v. TAM YING CHOI

DCCC139/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 139 OF 2012

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Reasons for Verdict

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1.  The defendant faced three counts of burglary charges.

2.  The prosecution case was that a senior CSD officer had found some cash missing from his wallet twice when he placed his wallet inside his quarter or private room while going on duty in the prison.  He then put a video camera in his room which eventually captured the defendant’s image of searching his handbag and wallet. 

3.  The defendant was an assistant officer of CSD in charge of keeping spare keys of quarters.  The defendant says he was entitled to go in the officer’s room and he just went in to carry out his duty for maintenance and checking equipment.  He found personal properties unattended and just checked it for identity without any dishonest intent to steal anything.  He further denies having stolen any cash in the said two previous occasions.

4.  PW1, Leung Ka-lun, principal officer of CSD, recalled that in March 2010 he was assigned a quarter at Room 3, Flat 7, 3rd Floor, Block D, at Pik Uk Correctional Institution (Photos P6, 8 - 21).  The room was for his exclusive use with key given to him.  He would place uniform and personal belongings inside while going on duty at Pik Uk Prison.  Nobody else could enter without his permission.

5.  He said in May and August 2011 he had twice found some cash missing from his wallet, each time $500.  The wallet was placed inside his room when he was on duty and he did lock the room.  He particularly remembered the exact amount because the time gap from his taking cash from ATM until he found it lost was just 12 hours and 5 hours on the second occasion, and he only withdrew small sums, usually around $2,000, but eventually he found not all money taken away.  He therefore believed it was stolen.

6.  As the person in charge of security unit at Pik Uk Prison he also checked all window frames and doors but found no trace of being prised open.  He had no idea who may get entry and therefore he then installed a camera inside his room to monitor what happened.  He also insert a plastic strip between the door frames when he left the room so that he may know whether anyone got entry when he was out if the plastic strip had fallen (P6 (20 - 22)).

7.  On 2 September 2011, when he was back from his work he found the plastic strip had fallen off but there was nothing missing from his room after checking.  He then viewed the video record captured from the camera and found that it was the defendant at about 3 pm on that day entered his room, searched his handbag and old wallet and touched his clothes in the wardrobe before leaving.  He recognised the defendant as the person responsible for maintenance of the quarter whom he often met, at least 8 to 10 times per month for the last one-year-odd period.  He particularly recalled that after the first two incidents of property loss he had told the defendant to watch out of any suspicious person but he could not remember whether telling the defendant that he would place a video camera inside. 

8.  From the memory card of the video camera (P1 and P2), it captured the following images: 

i. 15:04:24 the defendant in uniform entered PW1’s room;

ii. 15:05:42 the defendant searched PW1’s handbag;

iii. 15:06:24 the defendant finished searching handbag;

iv. 15:05:29 the defendant searched PW1’s old wallet;

v. 15:06:48 the defendant searched PW1’s handbag the second time;

vi. 15:06:58 the defendant touched PW1’s clothes inside the wardrobe;

vii. 15:07:04 the defendant left PW1’s room.

9.  For the defendant’s entrance, PW1 said it was without his approval or consent.  He also did not call him to check his room on the day in question. 

10.  PW2, Hui Hong-yu, officer of CSD Special Duties, the supervisor of the defendant.  He tells that the defendant had sole custody and in charge of the spare keys of the quarters (Photos P6 (1 - 6)).  The defendant was responsible for maintenance, repair and inspection of quarters but consent of occupant is required when entering the room and he said the defendant should know he could not go in without permission.  To PW2’s understanding, the said quarter or room otherwise known as overnight sleeping room (OSR) are private places.  It was assigned to a particular officer and one may leave his personal belongings inside.

11.  After viewing the video record, PW2 said the defendant was not carrying his duty nor did he ever instruct the defendant to go in.

12.  The defendant gave evidence.  He is aged 48, assistant officer of CSD, he had served the department for 27 years, with a clear criminal record.  He categorically denied taking any cash in May or August 2011 from PW1’s room.

13.  As on 2 September 2011, he said he went into PW1’s room for regular checking of facilities and equipment.  He sought particular reliance of his job description (document D3), paragraph 2,

Duties: paragraph 2.6 to 2.9 stated the following:

“2.6 To check frequently all fittings, installations and furniture at various Staff Quarters and Staff Mess in regard to their state of repair and the proper usage and reports to Officer (Special Duties) for any follow up action;

2.7 To assist Officer (Special Duties) in allocating accommodations to the staff who are newly posted to the institution and up-keeping the list of occupants;

2.8 To assist Officer (Special Duties) to inspect and maintain the cleanliness and tidiness in the Staff Quarters, Staff Barracks, Staff Mess and its vicinity area;

2.9 To assist Officer (Special Duties) in checking and maintaining an up-dated inventory of furniture and fittings.”

14.  The defendant said when he went into PW1’s room he was surprised to see the handbag and wallet left unattended, therefore he searched them and tried to find out the owner but they were empty.  There were also standing procedures, (D1):

“All staff are reminded to exercise care to look after their own personal belongings. In particular, personal cash, identity cards or wallets should not be left unattended in the office or in the institution. In the event of a loss of personal belongings, they should immediately inform their superiors.”

15.  There were also accommodation rules, Governance of quarters and barracks accommodation, (D2):

“2.1 Staff shall keep the barracks accommodation clean, neat and tidy at all times.”

16.  The defendant said he also recalled PW1 had told him of previous loss of money and he would have installed camera therefore the defendant also intended to inform PW1 afterwards but in vain because he was then arrested on 6 September 2011 (Admitted facts, paragraph 7).

17.  DW2, Kan Shu Kay, CSD officer, the ex-supervisor of the defendant, he said it was the defendant’s duty to have regular check to inspect the room and he did not need any permission to enter.  He even said policy had changed and that the room was a public area.  He also said that all valuables should be kept in lockers and not be left unattended.  The defendant should inspect the properties to find out the owner.  After viewing the video record, he said the search was normal inspection.

18.  DW3, Lai Yiu-wah, the ex-head of Pik Uk Prison, retired in 2010.  He also said that the defendant was not required to obtain permission from the occupant to enter the OSR.  The defendant had a duty to inspect inside to keep clean and tidy.  The occupant should not leave valuables inside, but when asked once the room had been assigned to a particular officer, he agreed that permission is required before entering and other officers cannot go in without approval.

Analysis

19.  The principal officer, PW1, gave evidence in a clear and concise fashion.  His evidence had not been discredited nor shaken.  Likewise, PW2, also told the court what he knew directly in a straightforward manner.  Both prosecution witnesses are honest, credible and reliable witnesses.

20.  As to the defendant, he had no duty to prove anything.  He is a person of clear record and had served CSD for 27 years almost with an impeccable record except a relatively minor disciplinary action 26 years’ ago as disclosed by himself.  He also submitted numerous letters of appreciation from CSD commending his hard work and contribution (D4).

21.  However, while he said he entered the room for checking equipments, fitting and furnitures, anyone viewing the video record can readily tell he had not done anything alike but searching other’s handbag and wallet.  Within the approximate 2 minute stay it was not seen that he had checked any equipment, fittings nor facilities.  By the manner and acts of how he searched the handbag and wallet it could not be anything but an attempt to steal therein.

22.  If the defendant were simply to check identity, why would he just open the larger compartment of the old wallet usually containing bank notes without even checking other parts or searching for any card or identity document inside?  If he were to check the equipment and fittings, why would he need to touch the waist part of PW1’s clothes?  Obviously his act would not be anything but telling an attempt to steal.

23.  Mr Davies for the defendant tries to say at that time the door was open while searching and that PW1 had even told him the video camera would be installed, therefore the defendant would not be that foolish to steal nor had he formed any dishonest intent.  However, it must be noted the defendant’s stay was just less than 2 minutes and he had acted swiftly as the video recorded.  Further, the video camera was also secretly placed under the coat as set up by PW1 (Photo, P6 (13 - 14)), and it could just hardly be seen.

24.  Further, Mr Davies also says according to two defence witnesses the OSR should even be a public place and the defendant is entitled to go in without obtaining permission to carry out his normal duty.  However, the ex-supervisor and ex-head had respectively left their positions and retired in about 2009 and 2010.  They could hardly speak for the current position as opposed to PW2’s evidence. 

25.  Even if not, more importantly, there is abundant authority for the proposition that a person who has the right of entry the land of another for a specific purpose commits a trespass if he enters for any other purpose.  An example given in Archbold 2012, chapter 22, paragraph 89,

“The occupier’s son had a general permission to enter the house. However, he exceeded that permission when he entered with an accomplice and with intent to steal and accordingly he committed burglary.”

26.  Likewise, even if the defendant really had permission or entitled to go in PW1’s room, the purpose could only be checking equipments and fittings.  When the defendant attempted to steal therein, he became a trespasser accordingly.  In fact, in the present case, when PW1 was given a key for his exclusive use of the room, it is inconceivable that other officers may simply go in without his permission or approval.  Clearly, the defendant’s evidence is not credible, particularly contradicted by his act and manners as captured by the video camera.  His evidence and explanation is rejected.

27.  As to the first two charges concerning PW1’s loss of $500 each in May and August 2011, though the defendant was in sole charge and custody of the spare keys to PW1’s room and how suspicious it could be for the defendant to steal, but without more, not to mention that there were occasions when the defendant was off-duty and keys to the room had been placed in other sections or staff, I could not be sure the defendant did steal in these first two occasions.

28.  However, for the 3rd charge, on 2 September 2011 the video record did tell the fact and as stated above, the defendant went in as a trespasser and he did attempt to steal by searching the handbag and wallet of PW1. 

29.  In the circumstances, I found the prosecution had proved the charge beyond all reasonable doubt and the defendant is therefore found guilty on the 3rd charge but acquitted on Charges 1 and 2.