HKSAR v. Aguila Rogelio a

DCCC 863/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 863 OF 2015

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Reasons for Verdict

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1.The defendant now faces one charge of burglary.

2.The defendant allegedly stole an air-conditioner from an empty flat in Percival Street.  The flat is at the rear portion of the 4th floor of the building.  The defendant lives in the front portion of the building on the 2nd floor.

3.The prosecution say the defendant was seen removing the air-conditioner from the rear unit by pulling it on a trolley.

4.The defendant’s case is that he had been in the rear unit cleaning a dirty fridge.  The air-conditioner was on a trolley in the corridor.  He was at the site of the trolley and had not removed the air-conditioner or the trolley from the rear premises.

5.The issue in the case was purely a factual one: could the prosecution prove to a criminal standard that the defendant stole the air-conditioner that was found on the trolley and did he steal it from the rear unit?

6.The background is as follows.

7.The premises are at 66-68 Percival Street in Wanchai and they had been bought by a developer.  Some 20 of the 28 units in the building were vacated and locked up.  Kin Yip Engineering oversaw the security of the building.  They employed the 1st and 2nd prosecution witnesses who inspected the building to ensure that the vacated units were locked and secured. 

8.The defendant is a resident on the 4th floor of No 68.  He lives in the front portion.  The rear portion units of No 66 and 68 are adjacent to each other.  They were vacant and secured.  Both units were seen to be secured by padlocks and chains on 4 July 2015.

9.As far as prosecution evidence is concerned, prosecution called PW1 and PW2, the two members of Kin Yip Engineering who patrolled the building.  They patrolled the building on 8 July 2015.  They had also patrolled on 4 July 2015, when they confirmed that the two rear units were padlocked and chained.

10.On 8 July 2015, on reaching the 4th floor, the prosecution case was that they saw the defendant pulling a trolley with an air-conditioner on it out of the rear unit, 4th floor, of No 68.  On seeing them, he rushed away into his own unit at the front.  They called the police.

11.The police found that the chain and padlock to the rear unit were damaged and the door forced.  A crowbar was found inside the rear unit.

12.PW1 had said that the flat had contained three air-conditioners.  There were now none left and one of them was the one found on the trolley. 

13.It was admitted by the defendant at the scene of arrest, later under caution, that he told the interviewing officers that he entered the rear premises on the afternoon of 8 July.  This was for the purpose of cleaning a refrigerator, which was emitting an unpleasant smell.

14.The photographs of the unit show a refrigerator was present in the rear premises.

The defence case

15.The defendant did not give evidence. 

16.He called his wife, who told us there had been an unpleasant smell emitting on the 4th floor and she had asked her husband to do something about it.

17.The prosecution allege the defendant entered the rear premises as a trespasser and stole the air-conditioner from inside that premises.

18.The prosecution must prove all the elements of this offence beyond reasonable doubt.  The burden remains on them at all time.

19.The defendant, by his admission, admits that he entered the premises as a trespasser, but he says this is for an innocent purpose - to clean a fridge - which would also provide an explanation for his presence.

The issue, resolution of the issue

20.The prosecution say that the 1st prosecution witness can be relied upon to establish that the defendant was removing from the rear premises an air-conditioner which had been inside.  They say the only reasonable inference that could be drawn from those facts is that the defendant entered those rear premises as a trespasser and stole the air-conditioner, which was inside.

21.The defence say the defendant had an innocent reason to be within the premises.  He admits his presence as a trespasser. They say a proper analysis of the evidence of PW1 and PW2 shows that the prosecution cannot prove to a criminal standard that the defendant ever took possession of the trolley and its contents.  There was no appropriation.

An analysis of this evidence

22.PW1 said initially that he saw the flat had been burgled and the defendant rushed out of it.  When he first saw the defendant, he said the defendant was coming out of the unit.  He was pulling along with him something.  When he came outside, he pulled an air-conditioner.  He saw him pulling a trolley out of 68, rear portion.  When he saw PW1, the defendant hurriedly left the item behind and ran back to his own unit.  He said that the air-conditioner on the trolley seemed to be the one in the flat.

23.In cross-examination, he did not agree that the trolley and air-conditioner were already in the corridor.

24.Initially, PW2 said he saw a man come out of the rear portion of No 68.  He was pulling a trolley.  He said, “He saw us and ran away.”

25.In cross-examination, PW2’s account altered.  He was asked the question:  “The trolley and the air-conditioner were already outside in the corridor.  He wasn’t pushing the trolley.”  The answer was this:  “I’m not sure about it.  I had no impression of this.”  “So you’re not sure if he was out in the corridor -- if it was out in the corridor.”  “Yes.”

26.An attempt at clarification was made in re-examination and in re-examination he went on to say this, that when he first saw the trolley, it was in the position shown in photo 1 (and that is outside the premises), that the defendant was close to the trolley by the side of it, that the defendant was not doing anything by the side of the trolley.  That, of course, was the defendant’s case, as it had been put in cross-examination towards PW1 and PW2.

27.From this analysis, it can be seen that the prosecution case contains a fundamental contradiction on their evidence.  Is that capable of resolution?

28.In my view, there is no other evidence in this case that is capable of resolving this fundamental contradiction.

29.The prosecution case can only proceed on the basis that it is proved beyond reasonable doubt that the defendant removed the air-conditioner by pulling the trolley with the air-conditioner out of the rear premises.  Although PW1 said he saw this, PW2’s evidence contradicts this and allows the possibility that the defendant was merely beside the trolley, which was already in the corridor when the defendant was first seen.

30.I know that the defendant admits his presence in the flat and there were signs that the flat had been broken into.  However, the flat was secured on 4 July and so it was possible for the flat to have been opened at any time beyond that.

31.The defendant’s presence by the side of the trolley does not permit the only reasonable inference to be that he was in possession of the trolley or that he had removed it from the flat. 

32.Thus, reasonable doubt exists in respect of a fundamental element of the offence of theft.

33.Prosecution case must fail and the charge is dismissed.