HKSAR v. Gurmeet Singh

DCCC 318/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 318 OF 2016

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of burglary, contrary to section 11(1) (b) of the Theft Ordinance[1].

2.The particulars of the charge are:

“Gurmeet Singh, on the 3rd day of February, 2016, in Hong Kong, having entered as a trespasser part of a building known as 3rd Floor, No. 30 Gillies Avenue South, Hung Hom, Kowloon, stole therein one cooker, one gas stove and two speakers.”

Introduction

3.On 21 January 2011 the flat at 3rd Floor, No. 30 Gillies Avenue South in Hung Hom (“the flat”) was acquired by Asia Charming Limitedand managed by Richfield Reality Limited.  On 3 February this year the flat was vacant.  At 12:13 hours the defendant was found inside the flat. 

4.The prosecution case in summary is that the defendant entered the flat as a trespasser and stole the items particularised in the charge.  Under caution the defendant admitted stealing those items, which admission was subsequently post-recorded in writing at the Hung Hom police station. 

5.The defence case is that the defendant entered the premises to consume dangerous drugs and did not steal anything.  The defendant made no admissions and only told the police he was there to smoke ice.  The defendant says he was induced into signing the post-record.

Evidence

6.The prosecution called five of eightwitnesses on the list of prosecution witnesses attached to the prosecution opening: Mahmood Sajid (PW1), a security guard of the building; PC 17048 (PW4), the arresting officer; PC 13769 (PW5), the exhibits officer; Singh Sharanjit (PW7) and Chung Tsz Ling (PW8), who were the interpreters for the post-record.  For ease of reference the same witness number was adopted at trial.

7.The evidence of two witnesses Cheung Wai Lam (PW2) and Kwan Kwok Kuen (PW3) relating to ownership of the flat, were read pursuant to 65B of the Criminal Procedure Ordinance [2].

8.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance (exhibit P3), including the arrest of the defendant; photographs (exhibit P1); and a video recorded interview (exhibit P2).  

9.Two additional witnesses were called: PC 4734 (PW9), the photographer and in respect of the special issue Sgt 48890 (PW10) was tendered for cross-examination. 

10.The defendant elected to give evidence on the special issue and the general issue. No witnesses were called on his behalf. 

11.On the special issue the defendant was led that he had never appeared in court before.  This was not correct, the defendant admitting in cross-examination he had one conviction for driving with alcohol.  The defendant said he had misunderstood the questions asked by Mr Richmond.  Having been led on this matter I draw no adverse inference against the defendant for saying he had not previously appeared before the court.  Although the defendant cannot therefore benefit from a good character direction I do take into account his conviction is not for an offence of dishonesty.

12.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict.  On the other hand if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendant entitled to be acquitted.  

13.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

14.I have carefully considered all the evidence and the submissions of Ms Sujanani and Mr Richmond. 

Entry as a trespasser

15.At the outset of the trial Mr Richmond indicated that no issue was taken that the defendant was a trespasser.  This evidence can therefore be briefly summarised. 

16.On 21 January 2011 the flat was acquired by Asia Charming Limited.  The acquisition of the flat was handled by the Richfield Group who on acquiring the flat arranged for the locks to be changed.  Only authorized persons were allowed to access the flat.  All items in the flat were the property of Asia Charming Limited.  Richfield Reality Limited managed the property and hired security guards to watch the building[3].

17.Mahmood Sajid (PW1) was one of the security guards employed by King Force Security Limited.  Mr Mahmood said that no one was allowed to take anything out of the flat and in answer to the court said the defendant did not have authorisation to enter the flat. 

18.I am satisfied on this evidence the defendant was a trespasser.  Further in cross-examination the defendant agreed he did not have permission to enter the flat.

19.I am also satisfied that all property inside the flat belonged to Asia Charming Limited[4].

Proof of stealing

20.The main issue in the case is why the defendant was in the flat.  The prosecution case is the defendant was there for stealing and stole the items particularised in the charge.  The defence case is that the defendant was there for smoking ice and not for stealing and that nothing was stolen.  I will first summarise the evidence.

Prosecution evidence

The security guard’s evidence

21.Mr Mahmood’s duties were to patrol premises under the control of his company including 30 Gillies Avenue.  30 Gillies Avenue, including the 3rdFloor, was patrolled twice a day, once in the morning and once in the evening.  Mr Mahmood was responsible for the morning patrol. 

22.On 3 February this year Mr Mahmood patrolled 30 Gillies Avenue, including the 3rd Floor, between 8-10 a.m.  Mr Mahmood checked all the doors and locks and found everything was fine. 

23.During cross-examination Mr Mahmood estimated the patrol of the 3rd  Floor would have been sometime after 9 a.m. Mr Mahmood agreed that he told the police he last carried out patrol on the 3rd Floor at 7:45 a.m.  Mr Mahmood explained this was when the patrol started and that as the incident was eight months ago he could not remember exactly the time he last patrolled the 3rd Floor but it would have been between 8-10 a.m. 

24.At about 12:11 p.m. that day Mr Mahmood received a call from his company telling him someone was inside the flat.  Mr Mahmood went to check the flat.  On arrival at 12:13 p.m. Mr Mahmood noticed that the metal gate was not locked in the same position as locked by the company.  The lock of the chain was on the inside of the metal gate whereas when the gate was secured with the chain the lock was on the outside. 

25.Seeing the lock was on the inside Mr Mahmood knocked on the door.  As nobody opened the door Mr Mahmood called the police.  After calling the police Mr Mahmood kept knocking on the door.  After a while the defendant opened the wooden door and tried to leave the flat.  Mr Mahmood blocked the metal gate with his foot to prevent the defendant from leaving. 

26.Mr Mahmood spoke in Punjabi and asked the defendant why he went inside the flat.  The defendant replied he just went in like that.  Mr Mahmood also told the defendant to wait as the police were coming.  The defendant then closed the wooden door and went back inside the flat.  When the defendant opened the door again he was holding a few boxes.  Mr Mahmood thought one was a rice cooker and one was a stove.  After that the police arrived.  The police asked Mr Mahmood to wait outside.  Mr Mahmood did not know what happened after that and resumed his duties. 

Police evidence

27.PC 17048 (PW4) and PC 13769 (PW5), both in plain clothes, arrived at the flat at 12:16 p.m.  They saw Mr Mahmood outside the metal gate and the defendant behind the metal gate.  After being told by Mr Mahmood what had happened PC 17048 opened the metal gate.

28.PC 17048 and PC 13769 went inside the flat and saw that the defendant was carrying a rucksack (exhibit P6); holding an electric rice cooker (exhibit P18) in his right hand and a blue plastic bag (exhibit 15) on his shoulder. 

29.Having ascertained that the defendant understood Chinese PC 17048 made enquiries of the defendant.  PC 17048 asked the defendant what he was doing in the flat. The defendant replied that he came to get something.  The defendant did not answer when asked what he got and just lowered his head.   When asked if he was an occupant the defendant said he did not live there but lived in Wu Kwong Street. 

30.After telling the defendant he could not enter without authorisation PC 17048 conducted a body search on the defendant and then searched the bags the defendant was carrying.  PC 13769 was guarding the defendant when PC 17048 searched the defendant and the bags he was carrying. 

31.Inside the rucksack PC 17048 found inside a purple recycle bag (exhibit P7), a range of tools, a can of WD 40 and a pair of gloves (exhibits P8-P14).[5]  PC 17048 asked the defendant the purpose of the tools but the defendant did not answer and again lowered his head.  PC 17048 also searched the blue plastic bag and found inside a gas stove (exhibit P16) and two speakers (exhibit P17)[6].  When PC 17048 was taking these items from the bag the defendant said he took the items from inside.  PC 13769 was responsible for seizing all the exhibits.

32.PC 17048 then declared arrest on the defendant at 12:52 p.m. for the offence of burglary.  I will address the evidence of the defendant’s reply under caution and the post-recording of that reply later in my verdict.    

33.The photographer, PC 4734 (PW9), was also called and testified that he took the photographs of the flat at 18:10 hours on 3 February.  In cross-examination PC 4734 said he took the photographs based on what DPC 14405 had told him about the case.  PC 4734 could not however remember why photograph 4, album 1 was taken.   

Defence evidence

34.In summary the defendant testified that he went to the flat at 10:30 a.m. for smoking ice.  The defendant had been to the same flat on 2-3 previous occasions, also for smoking ice. 

35.The defendant explained how he opened the metal gate with the cable shown in photograph 4, album 1.  The cable was attached to the gate and by inserting the fingers through the gaps in the gate and not the bent bars shown in photograph 3, the cable can be pulled along to release the lock and open the metal gate. 

36.The defendant explained he first went to the flat three weeks before his arrest.  On that occasion he went with friends who showed him how to use the cable.  The same cable remained attached to the gate since that time[7]. 

37.After entering the flat the defendant went in one of the rooms where he smoked ice. The defendant remained smoking in the flat for around one hour.  The defendant heard the security guard knock on the door.  The defendant opened the wooden door and the metal gate sufficient for the security guard to enter the flat. At this time the defendant was not carrying anything. 

38.The security guard asked the defendant what he was doing.  The defendant told the security guard that he went there for smoking and had been there 2-3 times before.  The security guard told the defendant to pick up his things and leave.  The defendant therefore closed the gate and the door and went to pick his things up. 

39.The defendant picked up his rucksack (exhibit D1-D3) and opened the wooden door. When the defendant was about to open the metal gate the security guard put his foot on the gate preventing the defendant from leaving.  The security guard told the defendant to wait because his boss was coming.  The defendant waited for about 7-8 minutes after which time the two police officers arrived.  The defendant was near to the metal gate when the police officers arrived. 

40.The police showed their warrant cards and asked the defendant to open the door. The police then entered the flat.  PC 17048 asked the defendant in English whether he knew English.  The defendant replied in Chinese that he did not.  PC 17048 then asked the defendant in Chinese what he was doing there.  The defendant replied he was there for smoking ice. 

41.The defendant was then taken into the living area where he was body searched.  The police then searched everywhere.  The rucksack (exhibit P6) was found near to the kitchen door.  The defendant told the police it was not his. 

42.The defendant said he never saw a rice cooker in the flat.  The defendant did not know where the police found the rice cooker and the police did not show him the rice cooker while he was in the flat. 

43.The police found the stove and the speakers from a cupboard in the kitchen.  The defendant said he had seen these two items before but had never touched them. 

44.PC 17048 then declared arrest on the defendant for burglary.   The defendant could not recall being cautioned and did not say anything after being arrested.

Discussion

45.I have no hesitation in rejecting the defendant’s evidence that he went to the flat to smoke ice; that he had been to the flat on 2-3 previous occasions, also to smoke ice; that after he told the security guard he was there for smoking the security guard told him to leave; and that he told the police he went to the flat to smoke ice.   I do not find this evidence credible.

Access to the flat

46.With reference to photograph 2, album 1[8], which shows the metal gate, Mr Mahmood explained that two chains could be seen, a thicker one hanging down the side of the gate by the handle and a thinner chain running along the top of the metal panel of the gate.  The lock of the thicker chain can be seen in the photograph, near to the door handle. 

47.Mr Mahmood explained that this chain had earlier been cut.  The thinner chain was then used to secure the gate with the lock on the outside.  When Mr Mahmood went to the flat he found the lock of the thinner chain was on the inside[9].

48.Mr Mahmood could not remember exactly the condition of the gate and did not pay attention to whether the chain had been cut.  In answer to the court when asked if the chain needed to be cut to access the flat, Mr Mahmood replied, “Yes because the lock that we put was hanging outside.  If someone broke it or opened it somehow and went in.”  Mr Mahmood thought the bar shown in photograph 3 was bent approximately the same day and explained that sometimes bars are bent and then an arm put inside to try and open the lock. 

49.I accept the evidence of Mr Mahmood that the metal gate was secured by chain and lock and that to enter the flat the lock of the chain needed to be broken or somehow opened.  I accept the evidence of Mr Mahmood that the chain and lock were in place when he patrolled the 3rdFloor that morning. 

50.Although Mr Mahmood explained that when patrolling they just observe whether the chain and lock are in place and do not pay much attention to all the details unless something is broken or the door open, I find inherently improbable knowing that bars had been bent before to gain access to flats the bent bars would not have been discovered in earlier patrols. 

51.I reject the defendant’s evidence that he was able to enter the flat by only using the cable shown in photograph 4 and that he had entered the flat on 2-3 previous occasions when the same cable was used to enter. 

52.I do not find credible the defendant’s evidence that after telling the security guard that he went there for smoking and had been there 2-3 times before, the security guard told the defendant to pick up his things and leave.  I find inherently improbable that the security guard would tell the defendant to leave.  I accept the evidence of Mr Mahmood that when the defendant tried to leave he prevented him from leaving and told him to wait because the police were on the way. 

53.I do not find credible the defendant’s evidence that he told the police he went to the flat to smoke ice.  In cross-examination the defendant said he smoked ice with a pipe; that he concealed the pipe behind a cabinet in the room where he smoked the ice; did not tell the police where the pipe was; the police searched everywhere but the defendant did not know if they found the pipe; and the police did not ask the defendant where he put the instruments for smoking ice.

54.I find inherently improbable that if the defendant told the police he went to the flat to smoke ice and the police searched everywhere but found no ice and no instruments for smoking ice they would not make further enquiries of the defendant. 

Proof of stealing

55.The prosecution case relies on the evidence of the police officers that when they arrived at the flat the defendant was carrying the tools and the stolen property particularised in the charge together with the reply made by the defendant under caution admitting that he stole those items. 

56.Mr Richmond submits that there is a clear inconsistency in the evidence between the police officers and Mr Mahmood as to whether the defendant was carrying anything when the police arrived.  In cross-examination Mr Mahmood said the rice cooker and oven was on the floor.  Mr Richmond submits that if the court was to find Mr Mahmood an honest witness trying to do his best then the contradiction in the evidence raises a doubt in the prosecution case[10]. 

57.A consideration of this submission requires a careful assessment of the evidence of Mr Mahmood.  This requires a detailed recital of Mr Mahmood’s evidence from the point when Mr Mahmood first saw the defendant open the wooden door of the flat. 

58.In examination-in-chief Mr Mahmood said that after calling the police he kept knocking on the door.  After a while the defendant opened the wooden door and tried to leave the flat.  Mr Mahmood blocked the metal gate with his foot to prevent the defendant from leaving.  In the meantime the police arrived. 

59.When asked whether the defendant was carrying anything Mr Mahmood said that after he told the defendant the police is coming the defendant closed the door and went back in the flat.  Mr Mahmood continued that when the defendant came out again he was holding a few boxes.  Mr Mahmood thought one was a rice cooker and one was a stove.  Mr Mahmood could not remember if the stove was inside a bag explaining that it had been eight months since the incident therefore he did not remember.  After that the police arrived. 

60.In cross-examination after Mr Richmond reminded Mr Mahmood of his evidence that when the defendant opened the wooden door he was holding two boxes, Mr Mahmood said: “When he opened the door the first time I asked him to be patient and wait.  He went in, closed the door but when the police arrived and he came out again, at that time he had boxes with him.”

61.Mr Richmond then asked Mr Mahmood questions about whether the defendant was carrying anything the first time he saw him.  Mr Mahmood replied he did not pay much attention to whether the defendant was holding anything because he was preventing the defendant from leaving.

62.To be noted here is that the answer “…but when the police arrived and he came out again, at that time he had boxes with him” was different to his earlier evidence that the second time the defendant came out of the flat was before the police arrived.  Mr Richmond next asked Mr Mahmood, who told the defendant to open the door.  Mr Mahmood replied that he did not remember whether the police called the defendant or he called the defendant to come out. 

63.Mr Richmond then put to Mr Mahmood that when the police arrived they knocked on the door and told him to open the door.  Mr Mahmood replied that: “Of course whenever the police arrive they will knock and ask to open the door.”  When put by Mr Richmond that is in fact what happened, Mr Mahmood replied: “The thing is if it was a matter of one or two weeks ago I could remember clearly but it has been a long time.  I don’t remember very well.”

64.When the question was repeated Mr Mahmood again explained it had been a long time and that he did not remember who knocked on the door and asked the defendant to come out.  Mr Mahmood said the door was opened from the inside and that it was at this time he saw the defendant having two boxes.  Mr Mahmood agreed he saw the defendant open the wooden door but did not see how the metal gate was opened. 

65.Towards the end of cross-examination after Mr Mahmood said he was on the staircase of the 3rd Floor when the defendant was taken out of the flat, Mr Richmond asked Mr Mahmood if he could see whether any property was brought out of the flat together with the defendant.  Mr Mahmood replied that he just saw the defendant taken away and after that the police sent him away. 

66.Mr Richmond then asked Mr Mahmood if he saw the police remove any boxes, rice cooker and stove from the flat.  Mr Mahmood replied: “When the police arrived and he opened the door there was some stuff in front of him.”  Asked what the stuff was, Mr Mahmood replied a rice cooker and a stove.  When Mr Richmond put the defendant was not carrying anything in his hands when he opened the door the second time, Mr Mahmood replied that boxes were lying on the ground.  Asked whether he was able to see if the defendant was carrying anything in his hands, Mr Mahmood replied he saw a little bit and that there was a few boxes on the floor. 

67.As correctly pointed out by Mr Richmond the prosecution did not re-examine Mr Mahmood on the discrepancy in his evidence as to whether the defendant was carrying the boxes or they were on the floor when he opened the door for the second time[11]. Nor was there any re-examination on the discrepancy in his evidence as to whether the defendant opened the door the second time before or after the police arrived. 

68.I asked Mr Mahmood to clarify whether the defendant opened the door for the second time before or after the police arrived.  Mr Mahmood replied that the door was opened after the police arrived and that he may have made a mistake.

69.I then asked Mr Mahmood to clarify whether the defendant was holding boxes or they were on the floor when the wooden door was opened for the second time.  Mr Mahmood replied: “This is my first time here in this situation so I am a bit confused but the thing is when the police arrived and opened the door boxes were lying there.”  Mr Mahmood then repeated that when the door was opened he saw a little bit that the boxes were in front of the defendant.  Mr Mahmood said he did not remember whether the defendant was holding or carrying anything.

70.Ms Sujanani then asked Mr Mahmood what he actually saw when saying he saw a little bit.  Mr Mahood replied that when the police went inside he could see through the legs of the police officers that things were lying there.

71.Ms Sujanani then asked Mr Mahmood whether he was sure these were the same boxes he had earlier said the defendant had been holding.  Mr Mahmood replied yes.  I clarified with Mr Mahmood whether he was saying the defendant held the boxes sometime; saw the boxes on the ground sometime or had just seen the boxes on the ground.  Mr Mahmood replied: “As I mentioned earlier this is my first time here and I am a little bit confused also.  It has been a long time since this incident, I may not be clear about some things but I have made a police statement earlier and I am sure this is the same person.”  After explaining the question Mr Mahmood replied that when the police went in he saw the boxes on the ground.

72.Ms Sujanani then asked Mr Mahmood what he saw the second time the wooden door was opened.  Mr Mahmood replied: “As I mentioned earlier that it was a long time ago and this is not the only incident.  These kinds of incidents happen.  As I mentioned I saw him for the second time.”  Mr Mahmood then repeated that when the police entered the flat he saw in between their legs boxes lying on the ground.      

Was the wooden door opened the second time before or after the police arrived?

73.I am satisfied no weight is to be attached to Mr Mahmood’s evidence in cross-examination that the defendant opened the wooden door for a second time only after the police arrived.  The incident having been a long time ago Mr Mahmood could not remember very well whether the police knocked on the door and asked the defendant to come out.  Had it been 1-2 weeks earlier Mr Mahmood would have remembered clearly. Mr Mahmood also said he may have made a mistake as to whether the defendant opened the door for the second time before or after the police arrived. 

74.Furthermore, although Mr Richmond put to Mr Mahmood that the police knocked on the door and told the defendant to open the door, this was not the evidence of the defendant.  The defendant testified that he opened the wooden door a second time and waited for about 7-8 minutes until the police arrived.  I accept the evidence of the police officers that when they arrived the wooden door was open and the defendant was standing behind the metal gate. 

Was the defendant carrying anything when the police arrived?

75.In summary Mr Mahmood said in examination-in-chief that when the defendant came out for the second time he was holding a few boxes.  The discrepancy came towards the end of cross-examination when Mr Mahmood said the boxes were lying on the ground.  Earlier in cross-examination Mr Mahmood had twice said when the defendant opened the door for the second time he had boxes with him.  On clarification by the court Mr Mahmood repeated that boxes were lying on the ground.

76.Mr Mahmood clearly had difficulty in remembering what happened when the police arrived.  Apart from not remembering whether he knocked on the door or the police knocked on the door and may have made a mistake as to whether the defendant opened the door for the second time before or after the police arrived, Mr Mahmood also could not remember how the metal gate was opened; whether the stove was in a bag; and he could not remember if the defendant was carrying or holding anything when the door was opened for the second time.    

77.Mr Mahmood said he was confused as this was his first time in court; he may not be clear about some things; this was not the only incident of this kind and as the incident was eight months ago/a long time ago, he could not remember very well.

78.Having carefully considered the evidence of Mr Mahmood I am satisfied no weight is to be attached to this part of Mr Mahmood’s evidence.  I accept the evidence of the police officers that they opened the metal gate and saw the defendant carrying the rucksack containing the tools; the blue plastic bag containing the stove and speakers and holding the rice-cooker.  

Reply under caution and post-record.

79.The prosecution rely on the reply made by the defendant under caution and the post-record of that reply, which was recorded in the form of a record of interview (exhibit P20).  The defence case was the defendant said nothing after he was arrested.  No allegation of impropriety was made against the police at or about the time the defendant was said to have made the reply under caution.

Voir dire

80.The defence objected to the admissibility of the post-record on the grounds that before the interview the defendant was induced by an unidentified plain clothes police officer into signing the post-record with the promise of bail and that nothing would happen to him[12]. Mr Richmond informed the court that the inducement was made just prior to the interview.

Prosecution evidence

81.The arrest and caution was preceded by a number of questions.  I have already detailed this evidence earlier[13]. PC 17048 declared arrest on the defendant at 12:52 p.m. for the offence of burglary.  Under caution the defendant replied, “I took the stove, rice cooker and speakers from the table inside the flat for my own use.  I saw there was no one inside the flat therefore I went in there to take them.” PC 17048 testified he did not assault, threaten or induce the defendant to say anything.

82.PC 13769 was present at the time handling the exhibits and guarding the defendant.  PC 13769 heard the defendant say something under caution but did not pay attention to what he said.

83.At 13:41 hours the defendant was taken to Hung Hom police station.  After reporting to the Duty Office the defendant was kept in the Temporary Holding Area.  At 18:23 hours PC 17048 served on the defendant the English version of the Notice to Persons in Police Custody (exhibit P19).  PC 17048 explained the rights by reading from a Chinese version of the notice served on the defendant earlier at 14:09 hours[14]. The notice was interpreted in English and Punjabi.  The Punjabi interpreter interpreted from the English version. 

84.After serving the notice PC 17048 post-recorded the arrest and caution in a record of interview.  The defendant said he had no need to correct, alter or add anything and wrote out the two ending declarations.  The first confirming the content was true and made of his own free will.  The second confirming the post-record was accurate.  PC 17048 did not assault, threaten or induce the defendant to sign the record of interview or see anybody else do so. 

85.In cross-examination PC 17048 said that he reported the case to his senior Sgt 48890 when the Sgt attended the flat.  PC 17048 said after he handed over the defendant to the Duty Officer Sgt 48890 gave him instructions to take a record of interview as soon as possible.  Acting on these instructions PC 17048 post-recorded the arrest by way of record of interview.

86.At the request of the defence Sgt 48890 (PW10) was tendered for cross-examination.  Mr Richmond put that Sgt 48890 was the unidentified police officer who induced the defendant.  Sgt 48890 denied that he went to see the defendant in the Temporary Holding Area and told him to sign saying he would be given bail and nothing would happen to him.  

87.The two interpreters Singh Sharanjit (PW7) and Chung Tsz Ling (PW8) were both called.  Both confirmed the accuracy of their translations.  Their evidence was not the subject of cross-examination.

88.Mr Singh also testified that he explained to the defendant in Punjabi the Notice to Persons in Police Custody.  Mr Singh confirmed the defendant replied “No need” when asked if he wanted to correct, alter or add anything to the post-record and that the defendant wrote out the two ending declarations.  At no time did the defendant say he did not understand what was translated to him.

Defence evidence

89.I have already detailed the defendant’s evidence of the enquiries made prior to his arrest[15].  The defendant testified he was not cautioned and said nothing after he was arrested.  With regard to the post-record the defendant’s evidence was largely consistent with the grounds of objection save that he said Sgt 48890 induced him about three hours before the post-record and not just before the post-record was taken.  In cross-examination the defendant said Sgt 48890 was not present when the post-record was taken.      

Discussion

Enquiries before caution

90.In cross-examination PC 17048 agreed the enquiries before caution were not recorded in his witness statement.  Mr Richmond submits that if PC 17048 had genuinely asked these questions it is inconceivable he did not record them in his witness statement[16]. Mr Richmond also points to the evidence of PC 13769 who said no enquiries were made before the defendant was searched[17].

91.These matters do not cause me to doubt the evidence of the police officers.  The submission with respect overlooks that on the defendant’s own evidence enquiries were made of him before he was arrested by PC 17048, in particular what language he understood and what he was doing there.  The fact PC 13769 did not hear any of these enquiries does not cause me to doubt the evidence of PC 17048. 

92.In any event, in final submission, Ms Sujanani said the prosecution do not rely on this evidence as the replies were not made under caution.  The prosecution were right to do so.  Unlike the reply under caution these replies have not been reduced into writing and shown to the defendant for his acknowledgment.  In reaching my verdict I place no weight on this evidence.  

Reply under caution

93.Mr Richmond submits that the alleged reply by the defendant was lengthy and detailed and a word-perfect confession and that in view of the linguistic difficulties the court should examine the confession carefully[18].  Mr Richmond also submits that the evidence given in cross-examination by PC 17048 that he immediately recorded the reply in his notebook is not supported by the evidence of PC 13769[19].

94.I have no hesitation in rejecting these submissions.  The caution included the three items and therefore it is not surprising these are mentioned in the reply. Whilst the defendant is a native Punjabi speaker his own evidence is he speaks Chinese and did speak to the police officers in Chinese.  

95.Although one might expect PC 13769 who was guarding the defendant to have heard what the defendant said and to see whether PC 17048 made a record in his note book, I accept the evidence of PC 13769 that he did not pay attention to what the defendant said or whether PC 17048 made a record in his notebook.  I also accept the evidence of PC 13769 that he was handling the exhibits at that time. 

96.I accept the evidence of PC 17048.  I am satisfied beyond reasonable doubt that the defendant gave the reply under caution, which reply was given voluntarily.

Post-record

Ruling

97.The issue was one of credibility, the evidence of the prosecution materially conflicting with that of the defendant.  Having carefully considered all the evidence and the submissions I was satisfied so I was sure that the police officers were witnesses of truth who gave credible and reliable evidence. 

98.I had no hesitation in rejecting the defendant’s evidence that while detained in the Temporary Holding Area he was approached by Sgt 48890 and told to sign the statement and he would be given bail and that nothing would happen to him. 

99.I carefully considered everything said on behalf of the defendant by Mr Richmond, in particular that Sgt 48890 denied instructing PC 17048 to post-record the arrest and did not even know about the statement.  

100.The evidence of Sgt 48890 was that the only instructions he gave was to ensure the time was correct and the exhibits properly handled.  Sgt 48890 did not say he was unaware of the post-record.  What he said was that he knew the defendant would be asked to give a statement and that was required to be given as soon as possible.     

101.I am satisfied the difference between PC 17048 and Sgt 48890 was more apparent than real.  This did not cause me to doubt the evidence of the police officers.  I had no hesitation in rejecting the allegations of impropriety made against Sgt 48890. 

102.Having carefully considered all the evidence and the submissions made I found I was satisfied beyond reasonable doubt that the post-record was signed voluntarily. I found no grounds to exercise my discretion to exclude the post- record on the grounds of unfairness.   

103.I was satisfied full weight is to be attached to the reply under caution, the accuracy of which was confirmed by the signing of the post-record. 

104.Subsequent to the post–record the defendant was interviewed on video (exhibit P2).  Admitted in evidence is that the interview was given voluntarily[20].  The defendant answered only two questions relating to the number of doors and the time he arrived at the flat.  The defendant had nothing to say about all other matters.  No adverse inference is drawn against the defendant for exercising his right to silence.

Verdict

105.Taking into account, inter alia, the following:

(a) the flat was secured with a lock and chain;

(b)the flat was found secured during morning patrol;

(c) to access the flat the lock of the chain had to be broken or somehow opened;

(d)at 12:13 pm the defendant was found inside the flat without authorisation;

(e) at 12:16 pm when the police arrived the defendant was found carrying the rucksack containing the tools; the blue plastic bag containing the stove and speakers and holding the rice cooker; and

(f) the defendant admitted stealing the rice cooker, the stove and the speakers;

I am satisfied so I am sure the only inference to draw is that the defendant burgled the flat and stole the rice cooker, the stove and the speakers.

106.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Richmond, both individually and collectively, including there is no fingerprint or forensic evidence.  Nothing said by Mr Richmond causes me to doubt the findings I have made.

107.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted as charged.