HKSAR v. TSUI SHUI PO

DCCC 643/2018

[2019] HKDC 514

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 643 OF 2018

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REASONS FOR VERDICT

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1.  The defendant pleaded not guilty to one charge of burglary.

2.  Particulars of the charge are that he on a day between 16 and 21 November 2017 entered a sub-divided room (“the unit”) on the Ground Floor of No 126 Yeung Uk San Tsuen in the New Territories as a trespasser and had stolen a wallet, $30,000 cash, a passport, about 10 membership cards, a fan, a television, a remote control, an induction cooker, a rice cooker and a game console.

BACKGROUND

3.  The defendant was, and still is at the time of trial, the landlord of the allegedly burgled unit.  Mr Hung (PW1) was one of 3 occupants who were staying at the unit prior to the alleged burglary.

4.  Sometime in mid-November, PW1 and the other occupants left the unit for a few days.  Upon his return on 21 November, Mr Hung found that he was not able to open the lock to the outer gate or the door of the unit.  Police were summoned.  The defendant opened the door to the unit at their request.  Mr Hung then found that all his belongings previously left in the unit had been cleared out.

5.  Later that evening, Police entered and searched the defendant’s home nearby at No 127 of the same estate.  A television set together with its remote control allegedly belonging to Mr Hung were found, left on the floor in the middle of the living room and in plain sight.

6.  Mr Hung also alleged that he had lost a wallet with $30,000 cash inside, and all the items listed in the particulars of the charge had gone missing.

7.  The defendant is being charged for stealing those properties, having entered the victim’s premises as a trespasser.

PROSECUTION CASE

8.  The prosecution called 5 witnesses.  The first witness was the occupant of the unit and the owner of the allegedly stolen property, Mr Hung.

9.  The second and third witnesses were the tenants of the defendant.

10.  PW2 Mr Lau rented from the defendant a unit at 482 Yeung Uk San Tsuen in September 2015.  In the first 2 years he stayed there, there was a tenancy agreement between himself and the defendant.  After 2 years, he was told by the defendant that there would no longer be any written agreement.

11.  Shortly before 20 November 2017, Mr Lau was informed by the defendant that repairs needed to be done on his unit and asked him to move to the unit located at No 126 of the same estate on a temporary basis, telling him that he will only be living there for 3 days.  After the work had been done on his unit, Mr Lau will be able to move back.

12.  So on 20 November, Mr Lau moved with the defendant’s help to the unit in question at No 126.  There was only a bunk bed, a sofa and a wooden cupboard when Mr Lau moved in there.  Photo 7 of P-4 shows the unit.  Apart from the bunk bed, the rest of the things in the photo belonged to Mr Lau.

13.  Mr Lau continued living there, up to now.  Mr Lau was not cross-examined.

14.  PW3 Mr Sin started renting from the defendant in November 2014.  There was a written tenancy agreement between them.  He confirmed that the defendant had given him a new key for the padlock on the outside gate as seen in photo 4.

15.  Mr Sin confirmed that photos 9 and 11 show the communal area where residents living at No 126 had access to.  If the outside gate is locked, one would not be able to enter the area except by climbing over the gate.

16.  Mr Sin is still living in that location and had been living there for nearly 5 years.  Every month when he paid the rent, which is always in cash, the defendant would give him a written standard printed receipt torn out of a book.  As far as he knows, every tenant was the same.  He had actually seen the book and can confirm that there would be a stub left on the book.

17.  The fourth and fifth witnesses were Police officers who, respectively, attended the scene and conducted a search of the defendant’s home on the 21 November 2017.  Their evidence, where relevant, are referred to below.

18.  It is the prosecution’s case that the defendant did not have the occupant’s permission to enter the unit at the material time when he cleared out his belongings, and that the defendant had stolen the particularized items which had been left inside the unit by the occupant Mr Hung.

DEFENCE CASE

19.  It is the defendant’s case that the prosecution cannot prove beyond reasonable doubt that the particularized items were in the unit at all.  Even if the prosecution can so prove, they still cannot prove that the defendant had stolen them, for the lack of dishonesty or the intention to permanently deprive.

20.  The defendant elected not to give evidence, nor call any defence witness. He had also chosen not to answer questions in his video recorded interview.  There is to be no adverse inference from his exercising of the right to silence.

ISSUES

21.  The issues in the case are whether the prosecution can prove that the defendant had entered as a trespasser, and whether he had then stolen the particularized property.

DEALING WITH THE ISSUES

Was the defendant a trespasser?

22.  It is Mr Hung’s evidence in the witness box that he was the person who had entered into the tenancy agreement with the defendant.  He said he was the one who would pay the monthly rental in cash to the defendant.

23.  For the month of November, Mr Hung said in court that he had paid half the rental to the defendant before he and the other two occupants, one being his girlfriend Ms Au and the other being a male friend of his Mr Ng, had left the unit that they were occupying.  Mr Hung was not forthcoming as to what he was doing while he was away, just that he was dealing with his personal affairs together with Ms Au, while Mr Ng had returned to stay with his family.

24.  Mr Hung could not remember when exactly he left the unit, nor when he told the defendant that he was leaving.  He was also not able to say if he had told the defendant how long he was going to be gone for, if he did tell the defendant.

25.  Different to what was said in the witness box, in his witness statement made shortly after the incident, Mr Hung told the Police that he had a conversation with the defendant where the defendant had scolded him for not paying the rent for the month of November.  There was no mention at all in the statement that he had paid half the rent for the month to the defendant.

26.  It is the evidence of the Police officer who attended the scene on that day (PC16241) that Mr Hung had told him that he had not paid the November rental to the defendant because he was short of money.

27.  I find that this is a significant discrepancy in Mr Hung’s evidence and as a result, Mr Hung cannot be regarded as a credible witness on the matter of whether he had paid the November rental to the defendant.  I find that he is lying in court about having paid half the rental to the defendant, and what he told the officer was the truth.

28.  The defendant’s oral statement made under caution, as recorded in Police officer 16241’s notebook, supports Mr Hung’s statement to the Police about not having paid the November rental at all.  There the defendant told the Police officer that, “Since he did not pay the rent, I changed the padlock and cleared his stuff out at 6 pm on 18^th November, but I did not take his stuff.”

29.  I find that there is no reason for me not to put full weight on the defendant’s mixed statement, even after bearing in mind that he had not given evidence and so had not been cross-examined on its contents.  What the defendant said about the occupant not paying the rent and what Mr Hung said in his witness statement and to PC16241 corroborate each other.

30.  As such, there is evidence to support the reasonable inference that the defendant had entered the unit with the belief that he as the landlord had the right to evict the occupants upon the non-payment of rent, and to clear out their belongings.

31.  The prosecution, however, submit that even if that is the case, according to s 70B of the Landlord and Tenant Ordinance, Cap 7, “A landlord is not lawfully entitled to forcefully evict a tenant[1]”. I find that I am not able to agree with this submission.

32.  Before proceeding to look at s 70B, I will first of all find that there is a reasonable doubt as to whether Mr Hung was in fact the tenant of the unit.

33.  I refer to the evidence of Mr Hung where he was not able to say how much the rental was and whether it was inclusive of the utility payments.  He was also unable to explain how his girlfriend Ms Au came to be the signatory on a written tenancy agreement for the unit with the defendant as the landlord.  This part of his evidence is dealt with in more details below.

34.  Given the unreliable nature of Mr Hung’s evidence, I find that the prosecution has not proved beyond reasonable doubt that he was in fact the tenant of the unit at the material time.

35.  Even if Mr Hung was in fact the tenant (or sub-tenant), I would nevertheless find that s 70B does not preclude the lawful eviction of a tenant.

36.  Section 70B is set out under the heading of ‘Harassment’.  Two criminal offences are created.  One against the unlawful deprivation of occupation, the other against acts calculated to interfere with the peace and comfort of the tenant.

37.  Section 70B(1) deals with situations where a person “unlawfully” deprives a tenant or sub-tenant of occupation.  What is unlawful is not defined within the section.  It does not state explicitly whether an eviction would be unlawful under the sub-section if it was based on the non-payment of rent by the tenant.

38.  According to Archbold Hong Kong 2019, at paragraph 16-34, the word “unlawfully” when applied in a criminal context in legislations would mean that the criminalized act has to be done “without lawful justification or excuse”.

39.  Upon a simple reading of the section, a defendant would not be guilty of the s 70B(1) offence if he had “lawful justification or excuse” in depriving the tenant occupation of the unit.

40.  This would then bring us to the issue of whether evicting someone for non-payment of rent would be lawful justification or excuse.  I find that it must be open to interpretation that a person who evicts a tenant for non-payment of rent might amount to a lawful justification or excuse when considered in the criminal context of section 70B(1).

41.  Section 70B(2) deals with situations where a person, with intent to cause a tenant or sub-tenant to give up occupation or to refrain from exercising any right or pursuing any remedy does an act calculated to interfere with the peace or comfort of the tenant, sub-tenant or members of his household, such as withholding water or electricity supply in order to get the tenant to leave.  The defendant did no such thing.

42.  The wordings of the two sub-sections of s 70B do not seem to preclude the lawful eviction of a tenant, and the prosecution did not make any submissions as to whether an eviction for non-payment of rental is an ‘unlawful’ act under s 70B(1).

43.  For the above reasons, I find that section 70B cannot be interpreted as making forceful eviction of a tenant unlawful in all circumstances, as suggested by the prosecution.

44.  According to Archbold Hong Kong 2019, in order for an entry to amount to trespassing, “the entry must be accompanied by mensrea: the defendant must know or be reckless as to the facts that make the entry a trespass.”[2] The following passage from R v Christopher Smith John Jones, 63 Cr App R 47, at 52, is cited in support:-

“The decision in Collins[3] in this Court, a decision upon the criminal law, added to the concept of trespass as a civil wrong only the mental element of mens rea, which is essential to the criminal offence…..it is our view that a person is a trespasser for the purpose of section 9(1)(b) of the Theft Act 1968[4], if he enters premises of another knowing that he is entering in excess of the permission that has been given to him, or being reckless as to whether he is entering in excess of the permission that has been given to him to enter, providing the facts are known to the accused which enable him to realise that he is acting in excess of the permission given or that he is acting recklessly as to whether he exceeds that permission, then that is sufficient for the jury to decide that he is in fact a trespasser”.

45.  The prosecution must, therefore, prove that the defendant knew he was entering in excess of his power as a landlord with all the express and implied permission given by the tenant or being reckless as to the extent of the permission when he did so.

46.  There is no direct evidence to so prove and the prosecution would have to ask the court to infer from the primary facts that the defendant knew or was being reckless as to his entry being in excess of any such permission.

47.  On the basis of the primary facts as I have found, that is to say, that rent had been owed to the defendant, that the occupants had left the unit without telling the defendant when they were going to return, that the defendant had scolded one of the occupants for the outstanding rental and had told them that they can leave if they choose not to pay rent, and that the defendant had told the Police that he had evicted them based on their failure to pay rent, I find that it is not the only reasonable inference that the defendant knew or was reckless as to his entry being in excess of the permission given to him.

48.  The other reasonable inference must be that the defendant honestly believed that the occupants had decided to depart without settling the rental payment and that he had the right to empty the unit and rent it out to someone else, acting under the permission given to him by his status as the landlord of the unit.

49.  Since there are two reasonable inferences as to the defendant’s state of mind and one is in favour of the defendant, the court is not allowed to draw the inference that is adverse to him.  As such, I find that the prosecution cannot prove beyond reasonable doubt that the defendant had entered as a trespasser when he entered to clear out the occupants’ belongings as the landlord.

Did the defendant steal?

50.  For the following reasons, I find also that the prosecution has failed to prove beyond reasonable doubt that the defendant had stolen any of the particularized items.

51.  The first and foremost reason is PW1 Mr Hung not being an entirely honest or reliable witness.

52.  Mr Hung said he rented the unit himself from the defendant.  When asked what the term of the rental agreement and how much the rent was, Mr Hung said he could not recall.  He also could not remember whether there were charges for utilities or whether they were included in the rental, or whether he had to pay any rental deposit, or say accurately how many rental receipts he had received.

53.  Mr Hung started living at the premises in late July and said that he was the person who had been paying the rent in cash directly to the defendant.  If that really was the case, he should not have any difficulties recalling those details in relation to the rental. Yet he could not.

54.  One might think that he was just being forgetful.  However, during cross-examination, Mr Davies produced a copy of a tenancy agreement signed by a person named Au Hoi Ching together with a copy of her Hong Kong Identity Card printed on the same agreement and her phone number written next to her name as the tenant renting the unit in question.  Mr Hung had confirmed in the witness box that the person on the agreement is his girlfriend and that those details are correct[5].

55.  Mr Hung had told the court earlier that after he had rented the unit, his girlfriend and a friend of his moved in and lived there together with him as well.  He was the person who had conducted the negotiations with the defendant and his girlfriend had nothing to do with it, and that there was no written rental agreement signed between himself and the defendant.

56.  When confronted with the said tenancy agreement apparently signed by his girlfriend, Mr Hung was unable to give an explanation as to why such a document with the identity card copy and signature of his girlfriend affixed existed.

57.  The existence of this document, coupled with the inability of Mr Hung to recall details of the rental agreement and his failure to recall accurately how many rental receipts had been issued by the defendant, would cause one to think that Mr Hung was perhaps in fact not the person who had entered into the rental agreement with the defendant, and therefore that he was lying in court and to the Police about this matter.

58.  Another cogent example of Mr Hung’s lack of credibility as a witness is the above-mentioned fact that Mr Hung had told PC16241 that he did not pay the November rental whereas in court, Mr Hung said he had paid half the month’s rental.

59.  One of the items particularized as stolen from the premises is cash of $30,000, which Mr Hung said he had left inside a wallet placed on the bed under a pillow.

60.  Yet, in cross-examination, Mr Hung told Mr Davies that he had moved to the premises because of financial difficulties.  It is bordering on the absurd that someone in such a situation would just decide to leave $30,000 under his pillow and left the premises for an undecided period.  Any reasonable person would either deposit the money into the bank or keep it on his person when leaving the unit for a prolonged period.

61.  Furthermore, according to Mr Hung, either his version of fact in the witness statement or the version he put forward in court, he still owed the defendant a full month or half a month’s rental payment when he had the $30,000 lying under his pillow.  He had the obligation to pay the rent.  It was not the case that he did not have the money, he appeared to just have chosen not to.  When Mr Davies asked why he did not pay the full rent with the money, Mr Hung said he wanted to keep the money for stand-by use.

62.  The money was supposed to have been payment for a watch that Mr Hung had sold.  He did not have any record of the transaction between him and his friend who bought the watch.  There is no record of Mr Hung being in the watch selling business, although he claims that he had been in the business on and off for 5 to 6 years.

63.  Mr Hung bought the watch for around $54,000 before he moved into the premises in July, he also sold it before he had moved in.  He received the $30,000 sometime around mid-October.

64.  Mr Hung had never told the Police in his witness statement that he was engaged in the watch selling business, which he had disclosed for the very first time in court.  I find that Mr Hung’s claim that he had $30,000 under his pillow doubtful.

65.  Furthermore, Mr Hung told the court that after he himself had rented the unit, he gave a set of keys to both his girlfriend and his male friend who also lived in the unit.  Either of them would have access to the $30,000 under the pillow.  It is not the only reasonable inference that the defendant must have stolen it if it had gone missing.

66.  I find the prosecution had failed to prove beyond reasonable doubt that Mr Hung is an honest or reliable witness.  As such, I also find that the prosecution had failed to prove beyond reasonable doubt that Mr Hung did have $30,000 under the pillow, or that the defendant had stolen the money, if it was in fact there.

The television found on the defendant’s living room floor

67.  It is Mr Hung’s evidence that on 21 November 2017, he returned to the premises and found the padlock of the outer gate changed and he was not able to unlock it with his previous key.  He managed to enter when someone else opened the gate.  When he tried to open the door to the unit he found that he could not do so as well.

68.  I pause here to point out that even according to Mr Hung’s own evidence, the outer gate padlock did secure the approach to the unit, as well as the courtyard leading to the unit, and that the gate was locked as it was meant to be when Mr Hung returned unannounced.  It was not the case that the defendant had deliberately locked Mr Hung out, but a usual security arrangement.

69.  Mr Hung said he seemed to have contacted the defendant over the phone after he found himself locked out but he was not sure.  He did eventually call the Police.

70.  According to the admitted facts, a television set, a remote control, a cable with plug and a USB cable were later found on the floor of the living room of the defendant’s home on the Ground Floor of No 125 Yeung Uk San Tsuen by the Police who attended the scene, which is near the allegedly burgled premises.

71.  It is the prosecution’s case that the defendant had stolen those properties, although only the television set and the remote control are particularized in the charge.  For the following reasons, I find that I cannot agree with the prosecution.

72.  The defendant was the landlord of the unit.  Mr Hung knew that and the defendant knew Mr Hung knew that.  The defendant, according to his own statement under caution, was the person who cleared out the occupants’ property from the unit.  The defendant must have known that if and when the occupants return, they will find their belongings missing and that the first person they would ask would be the landlord, the defendant.

73.  According to Mr Hung, the defendant had already scolded him for not paying the rent before Mr Hung and the occupants had left the premises.  They could not have been on good terms.  The defendant knew that.

74.  If the defendant was stealing the belongings inside the unit, he must have anticipated that one of the places that Mr Hung or his occupants would look for their belongings would be the landlord’s nearby home.  His own living room would be the last place to store the stolen items.

75.  The defendant must also have anticipated that, if the Police was ever involved, the very first place they would search would be his own home.  If the defendant had intended to steal the television set and the rest of the occupants’ belongings, he would not have left them in plain sight on the floor of his living room.

76.  That the defendant was being dishonest in this appropriation of the properties is not the only reasonable inference.

77.  Furthermore, it is also not the only reasonable inference that the defendant had the intention to permanently deprive.

78.  One other reasonable inference is that the defendant, realizing that the television set was valuable and also susceptible to being damaged if left outdoor, decided to keep it safe indoor until the occupants’ return to claim it back.

79.  There being more than one reasonable inference, the prosecution have failed to prove beyond reasonable doubt that the defendant was dishonest in the appropriation, or that the defendant had the intention to permanently deprive the owner of the properties.

The bags and boxes left in the courtyard

80.  According to the evidence of Mr Hung, in photo 9 and 10, the red, white and blue bag, the light green plastic bag and the red plastic bag on the ground belonged to him.  In photo 12, the red, white blue bag, the blue lid box and the carton boxes all belonged to him.  He said they were all previously inside his unit when he left the unit.

81.  Mr Hung did not tell the court where his passport, membership cards, fan, induction cooker, rice cooker and game console were kept in the unit.  Out of all the particularized items, only the television set and the remote control were found in the defendant’s home.

82.  It is not clear from the prosecution evidence whether any of the particularized items was inside any of the bags or boxes in the courtyard, and if so, which one.

83.  If none of the items were inside, then the fact that they were left there by the defendant is neither here nor there, since the contents would not have been particularized as stolen and not being a subject matter of the charge.

84.  At the end of cross-examination, Mr Hung actually agreed with Mr Davies’ suggestion that most of his property were stored outside the unit “for safekeeping”.

85.  In view of Mr Hung’s agreement to Mr Davies’ suggestion, Mr Beel in his closing submissions raised the point for the first time that the leaving of Mr Hung’s belongings outside the unit where they were liable to be stolen by others would amount to an appropriation of those property with the intention to permanently deprive the owner of the property.

86.  In the present case, the location where the property was left was actually inside the iron gate protected with a padlock, which successfully kept Mr Hung out upon his return, thus indicating that the location was reasonably secure.

87.  Mr Beel’s proposition of the defendant leaving the property unsecured is, therefore, unfounded.

88.  Furthermore, it is also for the prosecution to prove that any such appropriation must have been dishonest.  If the defendant had intended to dishonestly take the property, he would not have left them in the secured courtyard.

89.  Had the defendant dumped all of the things found in the vacated premises into a dumpster, then the defendant might have been guilty of having the intention to permanently deprive the occupants of their belongings, in the sense that he would have known that the property will be taken away by whoever was dealing with the garbage or might be taken by someone else who happen to look through the garbage.  He did not do that.

90.  Putting aside whether any of the remaining particularized items were in fact inside any of the bags or boxes, I find that the fact that the defendant had placed those bags and boxes in the same courtyard behind a locked gate and so close to where the defendant was living tend to suggest that the defendant did not have the intention to steal those things or to dispose of them in a way against the interest of the owner.

91.  The defendant must have known that the occupants of the unit will be unhappy about him moving their things out and changing the lock.  He might even have anticipated that Police would be involved at some point.

92.  If he had intended to steal those things, he probably would have hidden them or taken them somewhere else.  Leaving them out in the courtyard in plain sight would be the very last thing that a thief in the defendant’s position would do.

93.  The fact that the defendant had left them behind locked gates would also allow me to infer that he wanted the occupants to be able to retrieve them upon their return, thus indicating a lack of intention to permanently deprive.

94.  I find, therefore, that the prosecution has failed to prove beyond reasonable doubt that the defendant had dishonestly appropriated the bags, the cartons and the box with the blue lid, or that the defendant had the intention to permanently deprive the owner, or owners, of the property.

95.  As for the passport, membership cards, fan, induction cooker, rice cooker and game console, given the fact that the defendant was not the only person who had the key to the unit, given the fact that Mr Hung is found not to be an honest or reliable witness, given the fact that these items were not found in the defendant’s home, I find that I am not satisfied beyond reasonable doubt that those items were present inside the unit, or that the defendant had stolen them.

CONCLUSION

96.  Everything in this case tends to suggest a landlord who was fed up with occupants not paying rental and decided to evict them by clearing out the premises and changing the locks.  The premises were then let out to a new tenant.

97.  The television set, being the more apparently valuable item, was kept on the defendant’s own living room floor, while the bulk of things cleared out were left in a secured courtyard for the owners to return to claim.

98.  Even if we assume the defendant had entered the unit as a trespasser, the facts point to the reasonable inference that he just wanted to clear everything out so that he can rent the unit out to someone who was willing to pay the rent.  There was no intention to steal, nor had he in fact stolen.

VERDICT

99.  For the reasons given above, I find that the prosecution has failed to prove beyond reasonable doubt that the defendant did enter as a trespasser, or that he had stolen any of the items as particularized.

100.  The defendant is acquitted of the charge accordingly.