HKSAR v. Yu Man Lung

DCCC 248/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 248 OF 2016

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Reasons for Verdict

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1.The defendant, Mr Yu, faces a single charge of burglary. He will be convicted of that offence. My reasons are as follows.

2.In the early hours of the morning of 12 November 2015, a burglary occurred at the Elsa High School in Shau Kei Wan where various items were stolen from the 3rd floor office.

3.There is a CCTV recording of the burglary which shows a sole burglar dressed in a white hooded garment wearing a face mask and gloves leaving with a black bag.  The prosecution say this man is the defendant.  He denies this.

4.The issue for the court to decide is whether the surrounding circumstantial evidence can establish that this man is the defendant.  Naturally, such circumstantial evidence must prove that fact beyond reasonable doubt.

5.The prosecution say this evidence comes from the following main sources:  firstly, that a face mask of the type used by the burglar and bearing the defendant’s DNA was found by the outer fence of the Elsa School the next day; secondly, the defendant is seen to have returned to his home in nearby Chai Wan by reference to a CCTV recording in the hallway of that building.  He is seen there at his home at 0447 am.  From the school CCTV the burglar can be seen to depart the Elsa School at around 0422 hours am.  The defendant is seen to be wearing similar clothing to the burglar and carrying a similar black bag to the one taken from the Elsa School by the burglar.  In the defendant’s home, three items identified to be taken in the burglary were discovered in a rubbish bin.  They were a ziplock bag with the words “Mr Skinner, petty cash and receipts”, P28; an empty envelope with the words “Shanghai money.  Return to Pinky” - that is P30; and a small piece of paper with the Chinese characters “Chung Ngan” written on it - that is P31.

6.Also, a similar hooded garment to that worn by the burglar was found hanging up in the laundry at the defendant’s home. Finally, found on the defendant following his arrest were substantial amounts of money in US dollars and Renminbi, but also two 50 Polish zloty notes.  All these were currencies taken in the burglary, the Polish zloty notes being distinctive.

7.As far as the defence is concerned, the defendant did not give or call any evidence.  Of course, no adverse inference can be drawn from this decision.  The defendant submits the prosecution evidence cannot prove this charge to a criminal standard.

8.As far as the prosecution evidence was concerned, it was not challenged that a burglary occurred at the Elsa School in the morning of 12 November 2015.  It was evidenced that the Elsa School is situated at 460 Shau Kei Wan Road.  PW1 evidenced that the items listed in the particulars of charge were taken.  She evidenced that cash such as Renminbi, Hong Kong dollars and Polish zloty were taken from the 3rd floor office.

9.Almost the entire progress of the burglary was captured by CCTV cameras within the school.  These do clearly show that at 03.25 hours - that would be am - a masked man wearing a white hooded garment, a dark jacket and trousers and also a face mask and gloves is seen to climb over the perimeter fence.  He is seen climbing up to the 1st floor of the school corridors and then using the stairs to ascend to the 3rd floor.  At the 3rd floor, at 03.41 hours, he is seen to climb through the 3rd floor office ventilation window.  This is the window of the accounts office on the 3rd floor from which the items set out in the particulars of offence were taken.  He emerges at 0422 hours, and then quickly leaves the building. When he leaves, he is also carrying a black bag.

10.It is not disputed that the defendant lives at 1713 Yue Shun House in Yue Wan Estate in Chai Wan.  There are CCTV cameras installed in the entrance lift lobby and lift of the premises.  At around 0446 on 12 November 2015, a man wearing a white hooded jacket, dark trousers and carrying a large black bag in his hand enters the building and takes a lift inside the building.

11.Following the burglary, a search was conducted of the Elsa School and its surrounding area.  On a hillside some 3 metres from the school perimeter fence a face mask - which is P2, a surgical mask - and gloves of the appearance of those worn by the burglar were found.  The face mask, P2, was sent for DNA testing, as was a buccal swab sample from the defendant.  A stain yielding DNA material was recovered from the face mask. From that, a sample was recovered.  It was matched with two buccal swabs taken from the defendant following his arrest.  They were found to be identical in that the forensic scientist evidenced that the random match probability is one in 184 quadrillion.

12.The defendant was arrested at the lobby of his home at Yue Shun House on the morning of 13 November 2015.  He was carrying over HK$9,000.  He also carried other currencies:  Renminbi, US dollars, Australian dollars, and two 50 zloty notes of Polish currency.

13.Following his arrest, his house was searched.  A white hooded garment, P26, was found hanging near the kitchen.  In a rubbish bin in the kitchen, the three exhibits, P28, 30 and 31, were found.  These three items were identified by PW1 as being in her desk prior to the burglary and to be missing after it.  As far as the items were concerned, on P28, “Mr Skinner” was a teacher at the school.  As far as P30 was concerned, the witness was “Pinky”, and the Renminbi money was kept by the school for use by students when they went on yearly trips to Shanghai.  PW1 said the words “Chung Ngan” referred to the China Bank on P31.  She said these words were in her handwriting.  She also confirmed that two Polish zloty notes had been taken.

14.The defendant agreed to conduct a video-recorded interview.  He did confirm during that interview that only he and his father lived at the apartment at 1713 Yue Shun House, that the cash found on him on his arrest belonged to him, including the Polish zloty, that the white hooded garment belonged to him, and that the items, P28, 30 and 31, recovered from the rubbish bin, all belonged to him.

The Defence Case

15.The defendant did not give evidence.  His case was advanced by way of submission and cross-examination.  As I said earlier, no adverse inference can be drawn from the defendant’s position.

16.It was submitted that PW1’s identification of the property recovered from the defendant’s rubbish bin could not be relied upon; her evidence should be treated with some caution; that PW2 had failed to identify any items of the burglary; that the CCTV pictures from the Elsa School and Yue Shun House showed no clear view of the people depicted - that is, either of the burglar or the man returning to Yue Shun House and taking the lift in the morning of 12 November; it is said the pictures cannot amount to a sufficient identification as being the defendant; there was no evidence as to which floor the man travelling in the lift exited the lift; that the items of currency seized from the defendant were commonplace and could not be identified as having come from the burglary; that the video-recorded replies were conditioned by the defendant’s exercise of his right of silence earlier in that interview.  Overall, the prosecution evidence, taken as a whole, could not satisfy the criminal standard of proof beyond reasonable doubt.

17.Naturally, the burden of proof at all times remains on the prosecution.  They must prove this charge beyond reasonable doubt.  As far as the burglary is concerned, there can be no dispute that a burglary occurred at the Elsa High School as charged; the evidence of PW1, and the CCTV recording which provides detailed real-time evidence of the burglary in progress from beginning to conclusion.  The legal requirement for the burglary in this case is the entry of the premises as a trespasser and that items were stolen therein.

18.As I said, based on the evidence of PW1 and the CCTV recordings, it is clearly beyond reasonable doubt that a burglary occurred as charged, and the items particularised in the charge were stolen.

19.In this case, there is no direct evidence that the defendant committed this burglary.  The prosecution must rely upon the drawing of an inference from the primary facts proved.  A series of facts or a series of proved circumstantial facts proved beyond reasonable doubt can provide evidence of a crime provided that these facts, when taken together, lead to a conclusion that, based on those facts, satisfies the standard of proof in a criminal trial, namely proof beyond reasonable doubt.

20.It has also been expressed that any inference must be the only reasonable inference that could be drawn from the proved primary facts.

21.I noted that in submission, a challenge to the primary facts such as PW1’s identification of Exhibits 28, 30 and 31 was pursued.  Insofar as this fact was subject to dispute, I noted that PW1 had not identified Exhibit 1, which is an envelope which had the words “Century Hotel and Plaza” written on it.  However, her identification of P28, 30 and 31 was clear in detail, each identification accompanied with an explanation as to the identifying features of each exhibit, namely the name of the teacher, Mr Skinner, the Shanghai money for the school trips, the use of her own nickname, and her own handwriting for the Chung Ngan exhibit.

22.I accepted her evidence without hesitation.  She was clearly truthful and reliable, and has no doubt that Exhibits P28, 30 and 31 came from the Elsa School accounts office and were taken from there during the burglary of that office in the early morning of 12 November 2015.

23.I found that the prosecution have proved these essential facts:  that the burglary occurred as charged; that the CCTV recording of the school proves the burglary was committed by a male who was wearing a dark jacket, a white hooded garment and dark trousers; he also wore a face mask and gloves.  On leaving the accounts office at around 4.22 am, he is carrying a large black carry bag.  He also could be seen to exit via the playground.

24.I agree with the defence that this recording on its own cannot provide positive identification of any person, as the man is masked and the clarity of the image is only sufficient to provide evidence of what was worn by the burglar and what the burglar carried.

25.The next CCTV recording for Yue Shun House proves that a man wearing a white hooded garment, black trousers, and carrying a black bag, similar to the garments worn by the burglar and the black bag carried by the burglar, entered Yue Shun House, where the defendant and his father live.  I note the dark jacket worn by the burglar is no longer apparent.  The man’s physique appears similar to the defendant’s and to the burglar’s, but the image, on its own, cannot provide a positive identification.

26.The probative value of the recording lies in the similarity to some of the dress worn by the burglar and the bag carried by him, and the fact of the defendant’s residence in that building, which is proved by the defendant’s admission.  I note that in his video-recorded interview, the defendant did purport to exercise his right of silence.  However, he did necessarily waive that in respect of questions about his residence.

27.It was also proved that P28, 30 and 31 were found in the rubbish bin in the defendant’s flat.  On 13 November, these are recently stolen items.  I believe, from these items alone, the inference could be drawn that they were taken from the school to this location and were being disposed of.

28.It is also proved that on 13 November a pair of gloves and a face mask of the kind worn by the burglar were found just outside the perimeter fence of the school.  This location is proximate on the sketch to the playground, and in the CCTV the burglar can be seen to leave through the playground, so it can be said to be on the route that the burglar must have taken to exit the school.

29.I find the inference can be drawn that these items - namely, the face mask and the gloves - were disposed of by the burglar as he left the premises.  Furthermore, the Government Chemist and forensic scientist’s evidence, taken together, provides unassailable proof that a stain or DNA from the face mask corresponds with and is identical with that of the sample taken from the defendant.  The RMP figure allows this conclusion to be drawn.

30.There is also the fact the defendant was found with a mix of currencies, including the two 50 Polish zloty notes.  Again, taken on its own, this finding would not be highly probative, but taken together with the other proved facts leads to the conclusion that the bulk of the moneys and the Polish currency, which is an unusual currency to be found in Hong Kong, were taken from the Elsa School in the 12 November burglary.

31.In fact, each fact strengthens the prosecution’s case against the defendant, and when all the facts are taken together, it translates into the certainty that the defendant was the perpetrator of this burglary.

32.Taken together, all the proved facts prove beyond reasonable doubt the defendant entered the Elsa School on 12 November, where he was captured on the CCTV recording.  He burgled the 3rd floor office and took the items set out in the particulars of the charge. After committing the burglary he disposed of the gloves and the face mask, on which his DNA was found, near the perimeter wall of the school.  He returned to his home in Chai Wan, where he was captured on the CCTV recording there.  He then later disposed of P28, 30 and 31 in the rubbish bin of his home and hung up the white hooded garment used in the burglary in the laundry area, and when he was arrested, he was found with elements of the currencies taken in the burglary on his person.

33.As I said at the outset, the defendant is therefore convicted of this offence.