HKSAR v. Butt Ummar

DCCC 458/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 458 OF 2016

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REASONS FOR VERDICT

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1.The Defendant pleads not guilty to the three counts on the indictment, namely count 1 of burglary, contrary to Sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, count 2 of resisting police officers in the execution of their duties, contrary to Section 63 of the Police Force Ordinance, Cap 232, and count 3 of possession of a dangerous drug contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. As the Defendant spoke Urdu, an Urdu interpreter was arranged for him throughout the proceedings.

Evidence

2.At the outset, I was told by Mr. Laskey for the Prosecution that no facts could be admitted and the Prosecution would likely be calling 6 prosecution witnesses.   In the course of the trial, I was informed by Mr. Laskey that certain facts could be admitted by the Prosecution and Defence. The Prosecution called 3 of the 8 Prosecution witnesses listed on the list of Prosecution witnesses attached to the Prosecution Opening.  The admitted facts were read into the record on the second day of the trial and marked as Exhibit P8. The exhibits referred to therein were produced by agreement and marked accordingly.  At the conclusion of the Prosecution case, no submissions were made on behalf of the Defendant.  I found that there was a case to answer on all the charges.  Having had his rights explained to him, the Defendant elected to give evidence on the general issue.  There were no other defence witnesses.  At the conclusion of the evidence, and after hearing closing submissions, I adjourned the matter for verdict.

3.In reaching my verdict, I remind myself of the burden and standard of proof, and that the burden of proof is on the prosecution throughout to prove guilt beyond all reasonable doubt. The Defendant has to prove nothing.  I direct myself that I have to be sure of the guilt of the Defendant on each charge before I can convict.  On the other hand, if I find 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 is entitled to be acquitted.

4.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 adverse to the Defendant as well as one in his favour, the adverse inference cannot be drawn.

5.I have carefully considered all the evidence adduced as well as the submissions of Mr. Laskey and Mr. Polson.

6.It was not disputed that the burgled premises herein are domestic premises. The identity of the Defendant was also not in issue.

7.Although late in the day, I was concerned that Charge 2, the charge of resisting police officers in the execution of their duties, might be bad for duplicity, and I asked to be addressed on this issue by the parties.

8.Mr. Laskey submitted that the charge was not bad for duplicity, and that the charge was properly laid – it was a single offence and the police officers were acting together – it was a single transaction. He also submitted an extract from Archbold, the 2009 edition, paragraph 1-123 to paragraph 1-145. These are the same paragraphs dealing with duplicity in the current 2016 edition of Archbold.

9.Mr. Polson referred to the most recent decision of the Court of Final Appeal in HKSAR v. Yeung Ka Sing, Carson, FACC 5 & 6 of 2015 where the issue of duplicity arose and was discussed in paragraphs 129 to 177 of the judgment.  He quoted paragraph 132 of the judgment, where the Court of Final Appeal quoted from paragraph 151 from the judgment of Lord Morris of Borth-y-Gest in DPP v. Merriman [1973] AC 584:

“151. The question arises – what is an offence ? …….In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can be laid down but …. It will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act.”

Mr. Polson conceded that he was unable to say that the Defendant had been treated unfairly by including PW2 in Charge 2. He accepted that it was a single course of conduct.

10.After hearing from Mr. Laskey and Mr. Polson, and considering their submissions and the authorities put before me, I was satisfied to the requisite standard that Charge 2 was not bad for duplicity.

Prosecution evidence

The evidence of the police officers

11.PW1, Acting Sergeant 10825 (listed as PW2 on the Prosecution list of witnesses attached to the Prosecution Opening) testified that he was on duty and patrolling in plainclothes with PC16198 (PW2 in these proceedings and so referred to) at about 13.15 hours on 31/3/2016. At the time, they were patrolling at 9-11 Wing Lung Street in Cheung Sha Wan.  They entered the building depicted in Photo 1 of the album of 12 photographs, Exhibit P1, and walked up the stairs.  When they reached the 2^nd floor of the building, his attention was alerted. There are 2 flats on the 2^nd floor.  The flat identified as Flat B, 2^nd floor, No. 9 Wing Lung Street, Cheung Sha Wan, the main entrance of which is depicted in photos 2 and 3, consists of sub-divided ‘flats’.  He and his colleague entered Flat B, and he noticed that the door of one of these sub-divided ‘flats’,   Room B2, was wide open. The corridor of Flat B is depicted in photo 4, and PW1 pointed out Room B2 in the corridor, as being the entry way that can be seen in the middle of the photo.   The door of Room B2 cannot be seen in photos 4 – it is depicted in photo 5.  When PW1 saw the door, it was half opened, and not as it is depicted in photo 5 as wide opened.  He heard noises coming from the room, and the lights in the room were switched on.  He pushed open the door of the room and saw a man, whom he subsequently identified as the Defendant, squatting inside the room near the bed, shown on photo 5, with his back to the door, and he was ransacking the bed inside the room. PW1 could also see that the Defendant had a hard object at his back under his black upper garment.  PW1 took out his warrant card and said to the Defendant in Cantonese ‘police, what are you doing’.  Immediately, the Defendant stood up and rushed towards PW1, and pushed him away at his chest with both hands and ran towards the staircase.  PW1 immediately chased after him, and kept saying in Cantonese ‘police don’t run’ and in English ‘police stop’. He caught up with the Defendant at the staircase landing between the 1^st and 2^nd floors.  He grabbed the Defendant on his right arm with both hands but the Defendant flung him away – he then put his arms around the Defendant’s upper body and although the Defendant kept struggling and resisting, he subdued the Defendant with the assistance of PW2.  After the Defendant had calmed down, he searched the Defendant and found a silver coloured crowbar, marked as Exhibit P2, tucked into the waist of the denim jeans the Defendant was wearing, at the back and hidden under the black top he was wearing. PW1 said he sustained tenderness, abrasion and redness of his left index finger, right index, middle and ring fingers during his struggle with the Defendant, for which he was treated at the Caritas Medical Centre.  He also said that when he first arrived outside Room B2, the padlock was as shown in photo 5, and photo 6 is a close-up photo of the padlock shown in photo 5.  He also said photo 7 was a close-up photo of the door of Room B2, and one could see the marks of prizing on the door. He said one could see the marks of where the blue bar shown on photos 5 and 6 was attached to the door. This was the condition of the door when he arrived at the premises.

12.The Defendant was taken back to Cheung Sha Wan Police Station where he was processed.  PW1 searched the Defendant again at the police station where he found the dangerous drugs the subject matter of Charge 3 from the right front flap pocket of the Defendant’s denim jeans contained in a resealable plastic bag.  The dangerous drugs contained in the resealable plastic bag was produced and marked as Exhibit P3.

13.The Defence case was put to PW1 in cross-examination, and was denied by PW1. In summary, the Defence case was that the Defendant had never been to the premises on the 2^nd floor. When PW1 and PW2 were on the street level, something like a cork from a bottle fell from above to a spot close to where they were standing. They looked up – the Defendant was on a balcony on the 5^th floor of the building looking down and he said ‘sorry’ and saluted and asked if they were hurt. PW1 and his colleague entered the building and walked up the stairs and came upon the Defendant as he was walking down the stairs at the landing between the 1^st and 2^nd floors.  He asked the police officers in Cantonese if they had suffered any injuries but they did not reply and asked for the Defendant’s identity card.  The Defendant only had a slip issued from the Immigration Department as he was awaiting his new identity card. They asked what he was doing there and he replied he was there to see Ah Wah and was now leaving. There was a further discussion between them and the Defendant told them they could go to the 5^th floor and ask the Chinese male there if he had been there. One of the police officers swore at him, and he told the officer not to use that language. One police officer pushed the Defendant on his chest with both hands – the Defendant fell back and hit his head against the wall and fell to the floor.  The police officers lifted him from the floor by his collar. In doing so, one police officer accidentally scratched his hand against the wall. The Defendant was searched but nothing found.  The Defendant was handcuffed.  The Defendant said to the police officers that the police officer had injured his hand by his own carelessness. The Defendant was searched but nothing was found. The Defendant was kept at the staircase for about 10 minutes until other officers came and he was then told that he was being arrested for the offence of assaulting a police officer and taken back to the police station.  It was only at the police station that one of the arresting police officers took out Exhibit P2, the crowbar, and told the Duty Officer that it was found from the Defendant. The Defendant was searched again but nothing was found.  When he was taken out of the holding cell, one of the arresting officers took out a small plastic bag and told the Duty Officer it had been found from the Defendant.  PW1 agreed that he had shown the plastic bag to the Duty Officer and told the Duty Officer he had found it from the Defendant after the Defendant was taken out from the holding cell.  He disagreed that when the plastic bag was shown to the Defendant, the Defendant said he (i.e. PW1) could do whatever he wanted.  He also disagreed that the Defendant told the Duty Officer that the police could go to the 5^th floor and confirm he had spoken to the Chinese male there. PW1 said he had never gone up to 5^th floor nor had he been asked by anyone to go to the 5^th floor. He also could not recall any incident where something fell from the building as they arrived at the building.

14.PW2, PC 16198, (listed as PW3 on the Prosecution list of witnesses attached to the Prosecution Opening), testified that he was patrolling with PW1 at the material time and place.  They patrolled in the building at 9-11 Wing Lung Street in Cheung Sha Wan.  At about 1.15 p.m. they were going up the stairs of the building. On reaching the 2^nd floor, he saw that the metal gate of the unit at 9 Wing Lung Street was open. They went into the unit, with PW1 walking ahead of him.  When they reached outside Room B2, he heard PW1 saying ‘Police what are you doing?’ in Cantonese and repeating ‘police’ in English.   A man in a black jacket and blue denim jeans, whom he subsequently identified to be the Defendant, ran out of the room, pushing past PW1 causing him to fall to the ground. He also said ‘Police, stop’ in English but the Defendant did not stop.  The Defendant pushed him at his left upper arm with both hands, causing him to lose his balance and he hit the wall.  PW1 chased after the Defendant, and he immediately followed after PW1. At the staircase landing between the 1^st and 2^nd floors, he saw the Defendant struggling with PW1. He immediately went to assist PW1 to put the Defendant under control.  They finally managed to do so.  PW1 searched the Defendant and found the silver coloured crowbar, Exhibit P2, tucked into the back of the blue denim jeans worn by the Defendant.  In response to a question from the Court, he said he was not clear if the crowbar was covered by anything.  He continued to guard the Defendant. PW1 declared arrest on the Defendant for the offences of burglary and assaulting police officers.

15.PW2 said that when he was standing outside Room B2, he could not actually see into the room, as the corridor was relatively narrow. He could hear what PW1 said.  He followed PW1 as he chased after the Defendant. The Defendant was intercepted by PW1 at the staircase landing between the 1^st and 2^nd floors – the Defendant was struggling with PW1 and he went to assist PW1 to control the Defendant. He noticed when he boarded the police vehicle that he had sustained some injuries and he received treatment at the Caritas Medical Centre. He described that he had got these injuries when the Defendant had pushed him aside on the 2^nd floor and he had fallen back against the wall. He also said that the Defendant was emotional and spoke something in a loud voice which he did not understand.  He did not hear the Defendant say that he was visiting somebody in the building.  It was put to him in cross-examination that the injury to his hand was caused by his own carelessness but he disagreed. He also disagreed when it was put to him that no crowbar was ever found from the Defendant. Although PW2 said he had seen the head injury sustained by the Defendant, he was unclear as to how it was sustained, nor could he recall how the injury looked.

The evidence of the tenant of Room B2

16.PW3, Mr. Lee Kwan-for, listed as PW1 on the Prosecution list of witnesses attached to the Prosecution Opening, lived at Room B2 at the material time. He had started to live there since January, 2016. It was a small single room, a sub-divided ‘flat’ in Flat B, and referred to as Room B2.  He confirmed that photo 5 of Exhibit P1 was a photo of Room B2 taken from the entrance of the room in March 2016.  On 31 March, 2016, at about 8 a.m., he left the room after he had locked up the room. He secured the room with the padlock and blue securing bar shown on photos 5 and 6, which were in good working order at the material time. There were no prizing marks on the door. He returned at about 2.40 p.m., after he had received a message from the police at about 2 p.m., and found that the door of his room had been prized open. The padlock had been prized from the door and his room ransacked, as depicted in photos 8 to 11 of Exhibit P1.  His room had been tidy when he left, but when he returned he found things had been moved, for example the fan depicted in photo 8 as being next to the toilet bowl had been under his bed. The bed clothing on the bed was in a different state from when he had left, paper bags were on the bed, which had been hung on the wall when he had left the room that morning.  He said that the hairdryer seen on the bed in photo 11 had been inside the green plastic bag and hung on the wall when he left.  The packet of cigarettes that can be seen on photo 12 next to the hairdryer had been inside the white plastic bag on the bed and it was hung on the wall when he had left the room that morning.  Nothing was missing from the room when he checked, but the room had been ransacked.

17.He was asked in cross-examination if the building was due for demolishment and he confirmed it was. It was put to him that he was living there illegally but he said he did not know that and he had paid rent to live there.  He was asked if he had heard that a Chinese male named Ah Wah lived on 5^th floor of the building – he said he had not heard that – he did not know. 

Admitted facts

18.Admitted facts under Section 65C of the Criminal Procedure Ordinance, Cap. 221, were marked as Exhibit P8.  These disclosed, inter alia, that:

a) A transparent plastic bag containing a crystalline substance marked as Exhibit P3 was transported from the Cheung Sha Wan Police Station to the Forensic Science Laboratory on 1 April, 2016. It was examined, and found to contain 0.12 grammes of a crystalline solid containing methamphetamine, as set out in the Government Chemist’s Certificate, Exhibit P7. It was retrieved from the Forensic Laboratory on 27 April, 2016, and thereafter kept in secure custody.

b) On 31 March, 2016 PWs 1 and 2, and the Defendant were examined by doctors, and the findings are contained in the medical reports of the doctors, which were produced by agreement and marked as Exhibits P4, P5 and P6 respectively.

c) On 31 March, 2016 PC 2808 took 12 photographs of the scene at 1520 hours. This album of 12 photographs was produced by agreement and marked as Exhibit P1, photos 1 to 12.

d) The crowbar, exhibit P2, was not examined for fingerprints or DNA.

19.PW1’s injuries are set out in exhibit P4, to be multiple abrasions over left index finger, and right index finger, middle and ring fingers at proximal interphalangeal joint level. Range of movement was full. PW2’s injuries were described in his medical report, Exhibit P5, to be abrasion at right hand and right ring finger.   The Defendant’s injuries are contained in the medical examination form, Exhibit P6, and described as fresh injuries – tenderness and abrasion on the head.

Defence evidence

20.The Defendant testified that he was aged 42 years and born in Pakistan. He came to Hong Kong in 1996. He had received primary education in Pakistan, up to 3^rd or 4^th standard. Prior to his present arrest, he was a transport worker employed by DHL and had been so employed since about 2006.

21.He testified that his visit on 31 March, 2016 was his second visit to the building at 9-11 Wing Lung Street.  The first time he had been there was on about 12 March, 2016, when his friend Ah Wah who lived on the 5^th floor of the building brought him there.

22.He went to the building on 31 March, 2016 to meet Ah Wah to collect from Ah Wah the $2,000 he had lent him previously. It was about lunchtime when he reached, although he was not sure of the exact time, and he went directly to the 5^th floor.  Ah Wah was not there – he saw a Chinese male sleeping in the corridor outside Ah Wah’s room. He spoke to the male who told him Ah Wah had gone downstairs 5 to 10 minutes previously.  He asked the man if he had Ah Wah’s telephone number, but was told he did not. There was a flat opposite to the one where Ah Wah’s room was – it was all broken up. He initially sat at the doorway of the flat, but felt uncomfortable as there were people coming and going, so he went to stand in the balcony of that flat.  It was quite dirty because of the rain and there was water on the balcony, and a lot of discarded cans like coke cans on the balcony. He stood in the balcony to see if Ah Wah was in the market somewhere and he would ask Ah Wah to come up.  Something fell from the balcony to the street below – he thought it was the lid or cork of a bottle. The two police officers, i.e. PWs 1 and 2, were at the street level when he looked down and saw PW1 looking up. He saluted him and asked him in punti  “moh yeh mah?” from the 5^th floor balcony. Nothing happened after that – the police officers did not reply him – he turned back and then went downstairs. On the landing between the 1^st and 2^nd floors he came upon PWs 1 and 2 who were coming up the stairs as he was going down the stairs.  He asked them again in punti “moh yeh mah” - he said he asked them because he had seen something had fallen from the balcony.  PW1 then showed him his warrant card so he knew they were police officers. PW1 asked him what he was doing there and he told PW1 that he had a friend up there but he was not there and a Chinese had told him he had gone down. He had gone to the balcony to look for him and something fell from the balcony. He asked the police officers again if they were hurt.  PW1 ignored him and swore at him in Chinese. The Defendant told PW1 not to swear and told PW1 if he did not believe the him, he could come up to the 5^th floor – there was a person sleeping there and he could ask him the Defendant’s reason for going there.  He was sworn at again and he again told the police officers not to swear at him. PW1 pushed him with both hands at his chest and he hit the wall behind him and the back of his head hit the wall – he felt dizzy and fell to the ground. The two police officers came upon him and PW1 tried to pull him up by his collar – he confirmed in response to a question from the court that what he was wearing was what he was wearing at that time.  The Defendant was wearing a black upper garment that could be described as a jacket. It had a red zipper at the front. The Defendant said the zipper of his garment was pulled up and when PW1 pulled his garment by the collar, he felt choked and shook his head to release himself. He told PW1 to leave him i.e. release him. He stood up. He was searched by PW2 – he took out what he had – his mobile phone and immigration slip – he had no money on him.  Shortly before he was searched he had seen PW1’s left hand and saw the middle finger of his left hand was bleeding a little bit.  He told PW1 that his injuries were sustained because of his own foolishness. If PW1 had not pushed him nothing would have happened.  He told PW1 he could go up to the 5^th floor and ask his reason for coming to the building – he said this to PW1 in punti.  He was handcuffed and PW2 declared arrest on him for the offence of injuring police officers.  Soon after, some other police officers arrived.  He was then taken to the Cheung Sha Wan Police Station and it was only there that the crowbar, Exhibit P2, was shown to the Duty Officer by PW1.  The Defendant told the Duty Officer that nothing had been found on him and he was being framed.  He said he did not see where PW1 got the crowbar from.  He told the Duty Officer that the crowbar could be checked for his fingerprints and DNA and the Duty Officer replied ‘we will check, we will check’.

23.He was searched again at the police station by 3 or 4 police officers, not PWs 1 and 2, but nothing was found.  Then ‘he’ came into the room where the Defendant was being searched with a plastic bag and said to the police officers searching the Defendant in Chinese that the plastic bag had been found from the Defendant’s pocket pointing to the right front jeans pocket.  The Defendant said ‘You put a rod on me. Now I don’t know where you took the drugs from. Now you can do whatever you want. What can I do’.  He later refused to sign on the tamperproof evidence bag and told the police officer “I will talk to you in Court’.   He did not know he had been charged with burglary until after he appeared in court and he was served with the bundle.

24.The Defendant was cross-examined about how long he had known Ah Wah. The Defendant said he had known him for 3 to 4 years. He had not come to know Ah Wah from work but would meet him sometimes in Sham Shui Po.  He regarded Ah Wah as a casual friend.  Prior to 31 March 2016, he had last seen Ah Wah on 12 March 2016 when Ah Wah had taken him to his room on 5^th floor.  He did not know if Ah Wah had any job.   He said Ah Wah had told him he was staying on 5^th floor illegally, as a squatter, but the sitting room of Ah Wah’s room that Ah Wah had taken him to was nicely decorated.  He knew Ah Wah was on welfare,  He lent him $2,000 on 12 March, 2016. He did not regard $2,000 as a substantial amount. But on 31 March, 2016 he thought to get back the loan of $2,000 from Ah Wah because he was in great need of money.   He was asked what effort he had made to see if Ah Wah would be there in the middle of the day on 31 March 2016, and the Defendant replied that he was just passing by and he went up and he usually passed that place once or twice a day. He agreed when it was put to him that he had made no efforts to check if Ah Wah was at home before he went there. He said Ah Wah had given him his telephone number when he had lent him the money, and his telephone number had been stored on his mobile telephone, but it had been deleted from his mobile telephone as the battery had been taken out from his mobile telephone.  He was asked if he knew anyone he could contact to get Ah Wah’s telephone number. He said initially he did not, and then that Ah Wah’s friends were also his friends, and before going he had asked one or two persons and they said they did not have the telephone number of Ah Wah.  He was asked if he was in such need of money why he had not immediately gone to look for Ah Wah as soon as he was able on 30 March, 2016, but he said he had actually forgotten that he had loan $2,000 to Ah Wah. He only remembered on 31 March, 2016.  He did not know Ah Wah’s full name.  He had intended to wait for Ah Wah for half an hour. But he did not – the whole incident from the time he entered the building till he met the police officers on the staircase landing was less than 10 minutes.

Discussion

25.In the course of his testimony, the Defendant on a number of occasions himself referred to having been detained at the Laichikok Reception Centre from 14 to 30 March 2016 before being granted bail.  I had asked to be addressed in regard to this by Mr. Laskey and Mr. Polson. In his closing argument, Mr. Laskey submitted that this testimony was not prejudicial to the Defendant – it was raised by him and related only to his being detained and he was subsequently granted bail according to his testimony.  Mr. Polson also agreed that this could be disregarded by the Court. In reaching my verdict, I disregarded that part of his testimony where he referred to having been at Lai Chi Kok Detention Centre.

26.The only issue is the credibility of witnesses. If I find the Prosecution witnesses are credible and truthful, then their evidence would prove that the Defendant was the burglar in Room B2 that the police officers PWs 1 and 2 came upon as they were patrolling the building, that he rushed out of the room when asked by PW1 what he was doing, that he resisted the arrest by PWs 1 and 2, that the crowbar Exhibit P2 was found from him at the staircase landing, and the dangerous drugs Exhibit P3 was found from him at the Cheung Sha Wan Police Station when he was searched there.

27.Mr. Polson accepted that as Exhibit P2 the crowbar had been handled by persons not wearing gloves, it was unlikely that any DNA or fingerprints could be lifted.  However, the hairdryer found on the bed as depicted in photo 12 of Exhibit P1 should have been. It had been moved onto the bed so it must have been touched.  The same could be said for the cigarette packet on the bed next to the hairdryer. Whether the hairdryer was examined for fingerprints or DNA was not put to any of the Prosecution witnesses.  I found nothing in that submission in respect of the hairdryer not having been examined for fingerprints or DNA.

28.Mr. Polson also submitted that the photo of the door as depicted in photo 6 and the condition of the screws as shown on the photo meant the door could not be secured in that condition. Counsel was referring to the screws – he had asked PW1 about this – PW1 said that was what he had seen when he arrived at the premises.  PW3 testified that he had secured the premises with the padlock before he left. There was no evidence as to how the screws got into that position or whether that meant the door could not be secured.  I saw nothing in this submission.

29.I accepted the evidence of PW3 that he had securely locked his room B2 before he left the premises and when he returned, he found the padlock had been prized and door prized open and there were signs of ransacking in the room and things having been moved around in the room.

30.It was submitted by Mr. Polson that the Prosecution should have called the Duty Officer to rebut defence evidence that he had protested to the Duty Officer in respect of the dangerous drugs and the crowbar. Again, I saw no merit in this argument. PW1 was cross-examined in respect of what happened at the Cheung Sha Wan Police Station when the Defendant was brought before the Duty Officer. It was suggested to PW1 that at the police station, either he or PW2 had produced the crowbar to the Duty Officer and told the Duty Officer that it was found from the Defendant – PW1 had disagreed. It was also put to him that nothing was found from the Defendant when he was further searched.  PW1 had disagreed. It was put to him that the Defendant had told the Duty Officer that the police could go to the 5^th floor to confirm if he had spoken to the Chinese male there.  PW1 had disagreed that this was said to the Duty Officer by the Defendant.

31.PW 1 gave evidence of how he came upon the Defendant inside Room B2, that he was squatting near the bed in the room and ransacking the bed.  He revealed his police identity and asked what the Defendant was doing – the Defendant rushed from the room, pushing him at his chest and pushing PW2. He chased after the Defendant, he never lost sight of him, and after a brief struggle he and PW2 were able to subdue the Defendant on the staircase landing between the 1^st and 2^nd floors.  When he was searched at the staircase landing, the crowbar Exhibit P2 was found. During a subsequent search at the Cheung Sha Wan Police Station, the dangerous drugs Exhibit P3 was found.

32.PW2’s evidence supported that of PW1. There were some minor discrepancies but none that cast doubt on their voracity as witnesses.

33.I found PWs 1, 2 and 3 were not prone to exaggeration and doing their best to tell the Court what had happened at the material time and place.  I accepted their evidence in its entirety.

34.I have no hesitation in rejecting the Defendant’s evidence that he went to the building to the 5^th floor to look for his friend Ah Wah to recover a loan of $2,000 that he had made to him.  I do not find this evidence credible.  I considered the submissions made on behalf of the Defendant and had no hesitation in rejecting the Defendant’s evidence. I find it inherently improbable that he would lend $2,000 to ‘a friend’ that he did not know the full name of, who he knew was unemployed and on welfare, and living as a squatter in the premises he says he was taken to by his friend. He was evasive when giving evidence. Initially he said he had made no effort to check if Ah Wah would be there before he went to the 5^th floor – he usually passed the building once or twice a day. Then he said he had asked some mutual friends for Ah Wah’s phone number, which he said had been deleted from his mobile phone, but they did not have it. He said he had asked the Chinese male he saw sleeping in the corridor for the number but the male did not have it. He said he went to the balcony to see if he could see Ah Wah from the balcony and if he did he would ask Ah Wah to come up – this was a balcony on the 5^th floor.  He said he thought something had fallen from the balcony when he saw PW1 looking up and he asked ‘moh yeh mah’ but received no reply. He did not actually see what had fallen – when he saw PW1 looking up he thought something had fallen.  He had intended to wait for Ah Wah for at least half an hour, but changed his mind and left within 10 minutes, and he came upon the police officers on the staircase landing and he asked them again ‘moh yeh mah’.  He did not see what had fallen but thought it was a lid or cork only because he saw a police officer looking up.  I did not believe the Defendant. Even though I do not believe the Defendant, that does not determine the matter in favour of the Prosecution. The Defendant has to prove nothing.

35.I found the prosecution witnesses to be honest and credible witnesses, who each gave their evidence in a straightforward, cogent and direct manner.  That I comment thus is not to misconstrue the burden of proof remaining throughout upon the Prosecution to prove guilt beyond all reasonable doubt but takes account of practical matters pertaining to the credibility of witnesses and the weight to be attached to evidence.

36.I am satisfied that the Prosecution has proved all the charges against the Defendant beyond all reasonable doubt, and accordingly he is convicted on all the charges on the indictment.