HKSAR v. Ip Wai Hung and Another

DCCC 628/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 628 OF 2015

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Reasons for Verdict

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The offence

1.The first and the second defendants were charged with one count of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210. The particulars of the offence alleged that they, on the 22^nd day of May 2015, entered as trespassers part of a building known as Room C, 3^rd Floor, Kelford Mansion, No. 168 Hollywood Road, Sheung Wan, with intent to steal therein.

2.They pleaded not guilty to the charge and stood trial before this court.

Prosecution case

3.At about 6:55 pm on the day in question, Police Constable Lai (transliteration), PW4, was in Hollywood Road, Sheung Wan near Ladder Street. He saw two men across the road. They were about 30 metres from him walking towards his direction. When they reached the main entrance to Kelford Mansion at number 168, they stopped, looked around and inspected the scaffoldings erected on the external walls of Kelford Mansion for the purposes of repair and maintenance. This aroused the suspicion of Police Constable Lai. He crossed the road and went towards their direction. The two men left the main entrance of Kelford Mansion, walked on and turned right into Tank Lane.

4.By the time Police Constable Lai had hurried to the entrance to Tank Lane, he had already lost sight of the two men. He reported what he had seen to his superior officer according to police standard investigation practice. He then went to Kelford Mansion where he made contact with the security guard of the building first before carrying out routine patrol duties. About 10 minutes later, he arrived at the back door of the 3^rd floor of the building where he heard a strange noise. He pushed open the steel door and saw the first defendant at a close distance.

5.Police Constable Lai testified that by this time, the lower half of the first defendant’s body had already entered into the back garden (which was surrounded by a bamboo fence) outside Room C, 3^rd floor. He described the first defendant as having his arms lifted high, with the upper half of the body leaning forward, clutching a horizontal bamboo pole of the scaffolding for repair and maintenance inside the garden, giving the impression that the upper half of his body was also entering the garden. Police Constable Lai noticed that the first defendant did not look like a regular repairman working on scaffolding:  he wore on his head a black cap, not an industrial safety helmet; he wore on his hand(s) black glove(s) and not white workman’s gloves. Police Constable Lai immediately revealed his police identity and ordered the first defendant to come down. He made enquiries of him.

6.In the course of the enquiries, the first defendant told Police Constable Lai that he went to Kelford Mansion to carry out repair and maintenance work at the instruction of “Ah Man” (transliteration). As he failed to produce his proof of identity, Police Constable Lai allowed him to telephone his friend to bring his identity card to the scene.

7.In the meantime, at about 7:15 pm, Woman Police Constable Ting (transliteration), PW5 in the case, saw from Square Street the second defendant standing near Kelford Mansion, acting suspiciously. Police Constable Ting then went up with the male police constable that she was with to stop and make enquiries of him. But he became agitated and then walked forward to leave. The male police constable who was with Police Constable Ting managed to put him under control and handcuffed him. Police Constable Ting made enquires of the second defendant. He indicated that Ah Ip (the first defendant) was carrying out works at Kai Yip (transliteration) (sic) Building and told him to wait for him. Police Constable Ting therefore brought the second defendant to the rear door of Kelford Mansion for making further enquires.

8.On arrival, Police Constable Ting found the identity card and personal effects of the first defendant from the backpack of the second defendant, and found gloves from his trouser pocket(s). And Police Constable Lai found from the waist-bag of the first defendant a screw-driver and on his person two small electric torches. Police Constable Lai found in the course of the enquiries that there was no such person as Ah Man among the persons-in-charge of the external wall repair and maintenance works of Kelford Mansion. It was only at this juncture that the first defendant admitted to Police Constable Lai that there was in fact no such person.

9.The two defendants were arrested by the police at 8:05pm for the offence of attempted burglary. Under caution, the first defendant said, “I have nothing to say.” On the other hand, the second defendant said, “It was Ah Ip who said today that Ah Man asked us to come here to do the works. The black backpack and the pair of workman’s gloves were also given to me by Ah Ip.” The pair was later taken to a police station for detention and further enquiries.

10.During the hearing, the first defendant objected to the admission as exhibits for the prosecution his post-recorded cautioned statement, written cautioned statement, video-recorded interview and the relevant Notice to Persons in Custody. After the alternative procedure, the court found that all the evidence in dispute was signed and made by the first defendant voluntarily, and the court had no reason to exercise its discretion to exclude these pieces of evidence.

11.When the police took the written cautioned statement from the first defendant in the police station, he exercised his right of silence and did not answer the questions the police constable asked him. However, later, in the video-recorded interview he gave up the right of silence and explained to the police constable making the enquiries that he wore a cap too in ordinary times, the black glove(s) he was wearing at the time in question was/were for picking up scrap metal and the screw-driver found on his person was for prizing off wood when doing transportation work. As to what happened on the night in question, the first defendant explained that he had to urinate when he was picking up scrap metal. He therefore told the second defendant to carry the backpack for him. After relieving himself, he saw that there was an aluminium frame “above”. Succumbing to a momentary greed, he went to see if he could take it to sell for money.

12.The second defendant did not dispute the voluntariness of the cautioned statement. After arriving at the police station, when he was further cautioned, he repeated that he went with the first defendant to Kelford Mansion to carry out renovation works. When the second defendant was intercepted by the police, the first defendant was at Kelford Mansion where he did renovation, cleaning and scrap-collection work. At that time, the second defendant received a phone call from the first defendant, instructing him to bring his identity card to him. Under caution, the second defendant said he did not know who Ah Man was, nor could he remember when it was that the first defendant gave him the backpack. As regards the gloves inside the trouser pocket(s), the second defendant explained that it was the first defendant who gave them to him for doing renovation and rubbish-clearing work.

The defence case

The first defendant

13.The first defendant testified on the general issue that on the day in question, he had an appointment to meet the second defendant for a job interview. But it was not successful. . He therefore took him to Sheung Wan to pick up scrap metals. During that time, the first defendant had the need to urinate. He therefore left the backpack to the second defendant, ran up the sloping road to look for a secluded place for relieving himself. On reaching a small and narrow lane by the back garden of Room C, the unit in question, which was on the right of the back entrance to Kelford Mansion, he relieved himself. Later, when he saw that there was an angular aluminium metal bar on the scaffolding erected for repair and maintenance, he climbed up a scaffolding erected for renovation work on the left of the small lane by the wall (and not the side by the fence of the garden), and clutching a horizontal pole of the scaffolding with both hands, pushed himself up to see if the angular metal bar was abandoned. He found that it was not an abandoned article. When he was about to come down the scaffolding, Police Constable Lai emerged from the back door of the building, addressing him as “Master” and said things like “still not yet off work(?)” to him, and asked him who instructed him to go to Kelford Mansion to do renovation work. The first defendant said in his evidence that as at that time, he did not know the identity of Police Constable Lai, he therefore just fobbed him off by saying, “It was Ah Man.” After that, Police Constable Lai told the first defendant to produce his papers for him to inspect. The first defendant testified that at that point, he asked Police Constable Lai direct who he was. It was only then that Police Constable Lai revealed his police identity. Later, Police Constable Lai allowed him to call the second defendant to get back his identity card. The first defendant said in his testimony that he had already made clear that the reason for his going to Kelford Mansion was to look for a place to urinate when he was being investigated by the police at the scene. He stressed that he had never put any part of his body into the back garden of Room C.

The second defendant

14.The second defendant elected not to give evidence and called no witness. His counsel, Mr Bok, put to the prosecution witnesses during cross-examination that the two men Police Constable Lai saw in Hollywood Road were not the first and the second defendants in this case.

Discussion

15.The burden of proof is on the prosecution. It has to prove that the two defendants had committed the offence in question beyond a reasonable doubt. The two defendants do not have to bear any burden of proof.

16.The two defendants are jointly charged with one count of burglary. Their cases have to be considered and dealt with independently.

17.The cautioned statement given by each of the defendants could only be used in each of their own individual case. But whenever anything said under caution by one defendant is favourable to the other defendant, it could be adopted in the case of the latter to be considered together.

18.Be it before or after caution, both defendants could exercise either fully or partially their right of silence. The court cannot come to any consideration, speculation or inference unfavourable to them because they exercised their right of silence.

19.The first defendant said in his testimony that this was not the first time he was arrested and that he had met the second defendant in Hei Ling Chau. The first piece of evidence is unfavourable to the first defendant and the second unfavourable to both defendants. Both pieces of evidence are not relevant to the question this court has to decide in this case. They are to be excluded.

20.The first defendant admitted that he had made a false statement to Police Constable Lai, claiming that it was Ah Man who instructed him to go to Kelford Mansion to do renovation work while there was in fact no such person as Ah Man. The court must be satisfied beyond reasonable doubt that the first defendant was lying not because he was trying to strengthen or substitute a valid excuse, assist or cover up for other people etc before it could use the lie of the first defendant as evidence to support the prosecution case.

21.The second defendant elected not to give evidence. He had the right to do so. The court cannot come to any consideration, speculation or inference unfavourable to him because he exercised his right of silence.

The special issues of the first defendant

22.The first defendant opposed to the production to the court the post-recorded cautioned statement etc on the grounds that: (1) About 15 minutes after his arrival at the police station, a senior officer threatened him that if he denied his guilt, they would frame him for other burglary cases; (2) After Police Constable Lai had entered the post-recorded cautioned statement in his notebook, the aforesaid senior officer said to the first defendant words to the effect that he should not keep him from going off duty upon learning that the first defendant refused to sign on the notebook.

23.Police Constable Lai denied the above allegations.

24.The first defendant testified that about 15 to 30 minutes after he had arrived at the police station, Police Constable Lai and another police constable showed him the notebook and asked him to sign for confirmation. When he indicated that he was not willing to do so, a senior officer came into the interview room, and said to him that if he denied his guilt, he would put the other burglary cases under his name too. At the same time, he instructed him to sign and not to keep him from going off duty. The first defendant testified that it was under such circumstances that he signed on the notebook of Police Constable Lai. Afterward, the first defendant turned things over in his mind when he was in the detention room. As he knew that the police would first try to obtain a written cautioned statement from him before proceeding with a video-recorded interview, he decided to exercise his right of silence in the written cautioned statement and only to give explanations during the video-recorded interview. He thought that this could prevent the police from framing him for other burglary cases.

25.Mr Kwok, counsel for the first defendant, submitted that the first defendant knew when the post-recorded cautioned statement was made that if he did not cooperate, the police will frame him. It was only because of this that he signed on the notebook to confirm. Mr Kwok submitted that after the notebook, the so-called willing or voluntary participation in cautioned interview by the first defendant was all conditional decisions. Therefore, in actual fact, he did not do so voluntarily. Mr Kwok said the first defendant knew full well that the police would hold a video-recorded interview with him, he therefore decided to exercise his right of silence first to buy time to think carefully how he should account for the matter (the first defendant said in the witness box that he had “turned things over in his mind”) and waited until the video-recorded interview to give an explanation.  In the view of Mr Kwok, it was also perfectly reasonable and sensible for him to do so.

26.Where special issues are concerned, the burden of proof is on the prosecution and the defence does not have to prove anything.  After considering the relevant evidence and the submissions of both parties, I am of the view that Police Constable Lai was honest and reliable, he remained unshaken during cross-examination. His evidence on special issues was not contradictory, unreasonable or inconsistent.  On the contrary, I am of the view that the first defendant was not an honest and reliable witness for these reasons: (1) In his grounds of objection, he stated that the senior officer threatened him after he had arrived at the police station for only about 15 minutes but only ordered him not to keep him from going off duty after the subsequent post-recorded cautioned statement had been made. However, the first defendant said in the witness box that the two incidents took place at the same time (that is, 15 to 30 minutes after he had arrived at the police station). In my view, there was a serious discrepancy between the evidence he gave and the grounds of objection. (2) The first defendant said he clearly knew that the police would hold a video-recorded interview with him; therefore, he exercised his right of silence in the written cautioned statement. He thought that by leaving it until the video-recorded interview to give the police his explanation could prevent the police from framing him. In my view, this is inconceivable and cannot be the truth. First, if what the first defendant said was the truth, by exercising his right of silence in the written cautioned statement would immediately greatly increase his chance of being framed. That he knew he should exercise his right of silence at this point in time only lends strong support to Police Constable Lai’s denial of the allegation that he had been threatened. (3) In any event, there was no way that the first defendant could be sure that the police would hold a video-recorded interview with him. Should the police decide not to hold a video-recorded interview with him, the cautioned statement where the first defendant exercised his right of silence would be on the record. If the first defendant was telling the truth, he would no doubt be framed. On the basis of the above reasons, I reject the evidence of the first defendant on the special issues.

27.I find that the prosecution has proved beyond reasonable doubt that the evidence in dispute was all given by the first defendant voluntarily. There is not any special reason whatsoever that this court has to exercise its discretion to exclude it.

General issues

Whether the prosecution witnesses were credible and reliable

28.In this regard, this court only has to focus the analysis on the evidence given by PW1, Miss Harrison; PW4, Police Constable Lai and PW5, Woman Police Constable Ting. The credibility and reliability of the other prosecution witnesses were not in fact challenged.

Miss Harrison

29.Miss Harrison testified that since early February 2015 when she and her boyfriend moved into Room C, the unit in question, there was already a bamboo fence of 7 to 8 feet high erected outside Room C which surrounded an open-air back garden. The bamboo poles were close together to prevent outsiders from peeping inside the garden from outside the garden.  The door between Room C and the garden was the only entrance to the garden. It was for the exclusive use of the occupants of Room C. At the time the case happened, repair and maintenance works were being carried out on the external walls of Kelford Mansion. The building had scaffoldings erected around it for the use of the workers. Part of the scaffoldings was erected inside the back garden of Miss Harrison. If the workers had to enter the back garden, they must contact Miss Harrison in advance to obtain her approval before they could go into the back garden from the sitting room of Room C.

30.As far as Miss Harrison knew, the tenancy agreement her boyfriend had entered into with the landlord stipulated that Room C included the back garden. Mr Kwok asked the prosecution to provide the tenancy agreement of Room C for verification. The prosecution gave a copy of the tenancy agreement to Mr Kwok and produced it as a prosecution exhibit. The tenancy agreement did not expressly provide that Room C included the back garden, but clause 2(b) provided that the tenant was responsible for the maintenance of the fixtures and furniture in the premises which included the three foldable doors, washing machine and dryer and the manual type canvas awning on the terrace where the garden was situated.

31.Mr Kwok argued in submission that first, the tenancy agreement was a piece of hearsay evidence that could not prove that Room C included the back garden. Besides, it did not expressly provide that the premises known as Room C was rented to the boyfriend of Miss Harrison with the back garden included. Finally, Mr Kwok argued that whether or not the title of Room C covered the back garden or not was a question of law which should be decided by the floor plan etc. of the Mansion. In the view of Mr Kwok, the prosecution had not been able to prove that the Room C particularized in the charge included the back garden and therefore had also failed to prove that Miss Harrison or the landlord himself/herself had the right to deny or allow anyone from entering the back garden.

32.As regards the argument that the tenancy agreement was a piece of hearsay evidence, this court of the view that it did not affect the admissibility of the evidence at all: During the hearing, Mr Kwok asked the prosecution to supply the tenancy agreement that Miss Harrison mentioned in her evidence. The prosecution handed the tenancy agreement to Mr Kwok for inspection at his request. At common law, Mr Kwok could not object to the production to the court of the tenancy agreement by the prosecution on the ground that it was a piece of hearsay evidence.

33.The only purpose of the production to court of the tenancy agreement was to test the credibility and reliability of Miss Harrison, there was no question that it would become a piece of factual evidence to prove or disprove the statement that Room C included the garden. In my view, there is basis for Miss Harrison to say in the evidence she gave that the garden was rented to her boyfriend with Room C: the tenancy agreement mentioned that the tenant was responsible for the maintenance of the fixtures and furniture and expressly provided that these pieces of furniture were inside the premises. In my view, as far as the tenancy agreement is concerned, Room C definitely included the terrace, and judging by the overall evidence, it is a matter of course that the terrace also needed anti-burglar fixture and it took the form of this 7 to 8 feet high fence. No matter what the witness called it or how she used it, this terrace was clearly for the use of the landlord and was rented to the tenant.

34.In my view, the understanding of Miss Harrison was accurate and correct, and the relevant circumstantial evidence also lent strong support to her evidence in this regard: (1) The back garden was formed with the erection of a 7 to 8 feet high fence; (2) The fence was designed in such a way that peeping into the back garden by outsiders could be prevented; (3) Normal ingress to and egress from the back garden must be made by means of Room C; (4) The management company of the Mansion had agreed with Miss Harrison that if the workers had to enter the garden, they would have to get the approval of Miss Harrison first.

35.I do not accept that dispute over title or relevant matter is a question of law. The dispute does not involve any legislation or regulations but rather the title or right to use of the back garden. This is purely a factual dispute that turns on the factual evidence. Not only that, Mr Kwok did not refer the court to any legislation or regulation to point out that it was not possible for the back garden in question to be an extension of Room C at law.

36.I find Miss Harrison an honest and reliable witness and attach full weight to her evidence.

Police Constable Lai

37.There is no doubt that when Police Constable Lai was observing the two suspects from Hollywood Road, he did it for a relatively short time and from rather afar. At that time, there was traffic and rain. The overall situation was not favourable to the observation he was conducting. Nonetheless, the two suspects were on the whole coming towards his direction, and during that time, they had paused to look at the scaffoldings at Kelford Mansion. I accept his evidence that the clothing and colours of the two suspects were not hard to remember, and he had sufficient opportunity to see that one of them was carrying a backpack on his back. I find that the evidence he gave that he was able to recognize the two suspects at the back door of Kelford Mansion later to be the two defendants in this case is a piece of honest and reliable evidence that can be given full weight. I also accept his evidence that when he observed that the second defendant was in Hollywood Road, the latter was already carrying the backpack of the first defendant on his back.

38.In my view, it is entirely reasonable for Police Constable Lai to immediately suspect that the first defendant was committing a criminal offence when he saw the way the first defendant was dressed and acted at the back door of Kelford Mansion. As regards the questions of whether or not Police Constable Lai suspected the first defendant before or after the incident and how much he suspected him, they are not material at all as far as the facts of the case are concerned. Nor does the point of whether or not the security guard of Kelford Mansion had told Police Constable Lai when he arrived at Kelford Mansion that the workers had long been gone have any significance at all. Besides, whether the first defendant had used the mobile phone once or twice when Police Constable Lai was making enquiries of him is also not a material consideration in the case. In any event, the indisputable fact is the first defendant was not able to produce his identity card at that time and needed the second defendant to bring his identity card to Kelford Mansion.

39.However, on the question of whether the lower body of the first defendant had entered the back garden at the material moment, I am of the view that the evidence of Police Constable is not entirely clear: (1) he made no mention of the lighting condition at the back door; (2) he gave no description of defendant having to raise both legs to step over the top of the fence in order to return to the outside of the fence. He only said that the first defendant obeyed his instruction and immediately came down from the fence. There is no way that this court could be sure that the lower half of his body had in fact entered into the fenced off area.

40.It could however be sure that the hands of the first defendant were holding a horizontal pole of the scaffolding for repair and maintenance inside the bounds of the back garden and above the top of the fence. The evidence of the Police Constable was clear on this point. And the position of horizontal pole could also be seen clearly from a photograph. Nevertheless, the court has no way to be sure that the body of the first defendant had by this time already entered the garden. He had both arms lifted high and was holding the horizontal pole; it was possible that he was going to go inside, but it was also possible that he was still observing the situation inside the back garden.

41.I am of the view that Police Constable Lai was an honest witness. Other than the points set out above, full weight could also be attached to his evidence.

Police Constable Ting

42.I accept that Police Constable Ting was an honest and reliable witness. Mr Bok mainly queried Police Constable Ting on the question of whether the second defendant was agitated when he was being intercepted. The second defendant did not challenge the voluntariness of the cautioned statement. Whether he was subdued by the police with force when he was being intercepted is not a material consideration in the case. In any event, I do not think that the second defendant had tried to escape when he was being intercepted. Police Constable Ting only said that he walked forward; he did not say he ran at full speed.

The evidence of the first defendant and the cautioned statement

43.Although this court does not accept the evidence of the first defendant on the special issues, it does not mean that he must have lied on the general issues.

44.Having considered the overall evidence, I reject the evidence the first defendant gave on the general issues for the following reasons: (1) He lied to Police Constable Lai that he was instructed by Ah Man to go to Kelford Mansion. I take the view that the suggestion that given the way the first defendant was dressed and acted, he did not immediately arouse the suspicion of Police Constable Lai is inconceivable; it could not be the fact and the truth.  Similarly, the court cannot accept the evidence of the first defendant that Police Constable Lai did not immediately reveal his police identity, even less so to accept that he was fobbing the police off. (2) This court is of the view that the statement that the first defendant had to urinate could not possibly be the truth of the matter. This statement is in serious contradiction with the statement he made in the post-recorded cautioned statement that he had signed. Further, this court takes the view that if the first defendant was only looking for a place to urinate, there was in fact no need to pass the backpack to the second defendant for safe-keeping. On the contrary, without burdening himself with a backpack, it was easier for the first defendant to enter the narrow lane in question or to climb up the scaffolding. (3) The court considers that rain in fact hampers both external wall repair work and scrap metal collection on the street. 

The cautioned statement of the second defendant

45.In his cautioned statement, the second defendant admitted that at the time the case occurred, he was acting together with the first defendant. He claimed that the first defendant told him that Ah Man instructed them to go to Kelford Mansion to do renovation work. The exculpatory part in the cautioned statement of the second defendant was not tested by cross-examination. The court does not accept that this part could possibly be the truth of the matter. On the contrary, based on the claim that it was Ah Man who instructed them to go to Kelford Mansion to do renovation work, I find that shows beyond reasonable doubt that there was a prior agreement between the first and the second defendants that should the need to explain arose, they were to give the same explanation.

Points of Law

46.Based on the above analysis of the evidence, and having considered the submissions of both parties, this court takes the view that the only point of law that has to be dealt with is whether the back garden in question itself was a “building” or “part of a building”.

47.The offence in question is named “入屋犯法罪” (burglary). The two characters “入屋” in the title of the offence are used with good reason. The Court of Appeal said in paragraph 11 of HKSAR v Khan Asif（[2010] 1 HKLRD 404,408）: “At common law, burglary came to be defined as breaking and entering the dwelling house of another in the night, with intent to commit a felony therein, whether such felony be actually committed or not: see Kenny’s Outlines of Criminal Law 18^th ed., p.244.”

48.In Hong Kong, one of the elements of the offence of burglary was entering a “building” or “part of a building”. The word “building” in English is an ordinary word that does not have any specified statutory interpretation. Lord Esher said in Moir v Williams （[1982] 1 QB 264,270）: “… … what is ordinarily called a building is an enclosure of brick or stonework covered in by a roof”. Lush J also said in R v Manning （[1871] LR 1 CCR 338,341）: “I do not think four walls erected a foot high would be a building.”

49.The court takes the view that generally speaking, a “building” for the purpose of the Ordinance has to have an enclosure of walls, with doors for use and covered in by a roof. It is not possible for the legislative intent of the enactment of the law to include an open-air garden into the scheme of the Ordinance (whether or not there was an independent “building” in the garden that is applicable to this Ordinance is not a question that this case has to deal with). This finding is supported by the proposition the author of JC Smith, Law of Theft 9^th ed made in paragraph 8.31: “The meaning of ‘building’ in various statutes has frequently been considered by the courts. Clearly the meaning of the term varies according to the context and many things which have been held to be buildings for other purposes will not be buildings for the purpose of the Theft Act - for example, a garden wall, a railway embankment, or a tunnel under the road.”

50.In Hong Kong, what the Court of Appeal said in paragraph 20 of HKSAR v Emran（[2012] 3 HKLRD 535,539）also supports the above finding: “In the case before us, the air-conditioning units from which the applicant stole the copper wire were placed on the outside of the building on the roof. The applicant scaled an outside wall in order to get on to that roof. He remained always on the outside of the building. At no time did he make any form of effective entry into the building. He did not therefore commit the crime of burglary.

51.Having considered the further submission the prosecution made, this court exercises its function as a jury to find that the open-air garden in this case is not a “building” within the meaning of the Ordinance, less so “part of a building” as referred to in the Ordinance.

52.On this question, paragraph 8.40 of JC Smith’s Law of Theft 9^th ed said: “It would seem that the whole reason for the words ‘or part of a building’, is that D may enter or be in part of a building without trespass and it is desirable that he should be liable as a burglar if he trespasses in the remainder of the building with the necessary intent.” The author’s point of view in this regard is clearly also supported in R v Walkington（[1979] 2 All ER 716）.

Verdict

53.Having considered the overall evidence, this court finds that it is beyond reasonable doubt that the first and the second defendants had the intent to steal at the time the case occurred. However, this court cannot be sure that the second defendant must have known that the first defendant would enter a building as a trespasser and not try to steal from the outside of a building. I find that the back garden in question was part of Room C, but that garden was not a “building” within the meaning of the Ordinance, less so “part of a building”. This court cannot be sure that the lower half of the first defendant’s body had already entered the back garden, and when he held his arms high and held the horizontal bamboo pole, he might still be observing the situation inside the garden. Although his hands/arms were already inside the back garden, I take the view that taking it at its highest, it could only be the preparation made preceding his entry into main body of the building covered in by a roof.

54.I find that the prosecution has not been able to prove that the first defendant had entered as a trespasser into a “building” or “part of a building”. On the other hand, the second defendant did not necessarily know whether the first defendant had the intent to enter the building or not.

55.I find both defendants not guilty. The charge is dismissed.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.