HKSAR v. Ilyas Muhammad and Another

DCCC 135/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 135 OF 2017

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REASONS FOR VERDICT

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1.D2 pleads not guilty to one joint charge of attempted burglary of domestic premises together with D1, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2]. D1 pleaded guilty to the charge on 1 August and admitted the summary of facts on 2 August 2017.

2.The particulars of the charge read:

“Ilyas Muhammad and Saeed Ur Rehman, on the 27th day of December, 2016, in Hong Kong, attempted to enter as trespassers part of a building known as 7th Floor, No. 38F Kweilin Street, Sham Shui Po, Kowloon, with intent to steal therein.”

3.The part of the building was a flat.  Mr Ho, the owner of the flat, testified that the flat was on the 8th tenement floor.  Mr Ho identified his flat by reference to the photographs[3]. The admitted facts were that the photographs were of the 7th floor[4].  I note the Chinese version of the charge refers to both the 7th and 8th floors.

4.Mr Ho explained the difference in the floor numbers was because in a tenement building the ground floor was taken as the first floor.  Photograph 1 shows the entrance to the building and is described as the ground floor.  When the numbering of the floors commences with the ground floor the flat would be on the 7th floor. 

5.The prosecution witnesses all referred to the floor shown in the photographs as the 8th floor. Unless otherwise stated all references in my verdict to the 8th floor are to the floor shown in the photographs. 

Prosecution case

6.In summary at about 7:30 p.m. on 27 December last year Mr Ho was at home when he heard the sound of metal banging coming from the kitchen.  Mr Ho also heard two males talking in a foreign language.  Mr Ho checked the kitchen.  On seeing the body of a person moving outside the kitchen window; something like a tube moving and the kitchen window moving Mr Ho called the police, who arrived a few minutes later. 

7.When the police reached the 8th floor PC 11620 saw two males.  One male was looking around while the other male was using a crowbar to prise open a window.  When PC 11620 approached to reveal his identity the male looking around shouted whereupon the two males fled towards the rear staircase with the second male dropping the crowbar on the ground.  The two males were intercepted and arrested.    

8.The prosecution case is that D1 was the person using the crowbar to break into the flat and D2 the person keeping lookout. 

Defence case

9.In summary the defence case is that D2 did not know D1; D2 went to the building to collect money he had lent to a friend who lived in the building; and on finding his friend was not at home walked down the stairs when he was stopped by the police. 

Evidence

10.The prosecution called three of sixwitnesses on the list of prosecution witnesses attached to the prosecution opening: Mr Ho (PW1), PC 15607 (PW2), who arrested D1; and PC 11620 (PW3), who arrested D2[5].

11.Photographs (exhibit P1) and a video recorded interview (exhibit P2) have been admitted pursuant to section 65C of the Criminal Procedure Ordinance (exhibit P3)[6].  In reaching my verdict I have considered the content of the video recorded interview in accordance with the decision in R v Sharp[7].

12.D2 elected to give evidence and called D1 as his witness.      

13.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  D2 has to prove nothing.  I direct myself that I must be sure of the guilt of D2 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 D2 entitled to be acquitted.  

14.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.  

Prosecution evidence

Mr Ho

15.The evidence of Mr Ho was not challenged and can therefore be briefly summarised.  With reference to the photographs Mr Ho described the location of his flat.  The metal gate of Mr Ho’s flat is shown in photograph 7.  This can also be seen in photographs 2-6.  The metal gate is close to the door to the front staircase. The door to the rear staircase is shown in photograph 2 on the right hand side at the far end of the corridor. 

16.At about 7:30 p.m. on 27 December last year Mr Ho was at home when he heard the sound of metal banging coming from outside the kitchen.  Mr Ho also heard the sound of two males talking.  Mr Ho was not clear what language they were speaking but said they were not speaking Cantonese or English. 

17.When Mr Ho went into the kitchen to look he saw outside the kitchen window the body of a person moving and something like a tube moving.  The outside of the kitchen window is shown in photographs 6, 8 & 9 and the inside of the window in photograph 10.

18.The banging sound continued.  Mr Ho noticing the window was moving called the police, who arrived a few minutes later.  During the incident the exhaust fan was knocked out of the frame into the kitchen.  This can be seen in photograph 11. 

19.In cross-examination Mr Ho was referred to the black plastic zip tie on the inside of the kitchen window as shown in photograph 10.  Mr Ho explained that the window was locked and that to enter through the window the lock would need to be broken.  The black plastic zip tie was for further security.   

20.Mr Ho pointed to a small white object on the ledge below the bottom window as seen in photograph 8 and explained this was the broken lock[8].  In re-examination Mr Ho said this window had all along been closed.

Police evidence

21.PC 15607 (PW2) and PC 11620 (PW3) together with PC 6985 and PC 6260 arrived at the building at around 7:37 p.m.  PC 11620 and PC 6260 entered the building from the front staircase whereas PC15607 and PC 6985 entered from the rear staircase.  Two minutes later the police officers reached the 8th floor.

22.When PC 11620 was between the 7th and 8th floors he heard the sound of metal being struck and the voices of two foreign males talking.  PC 11620 did not know what language they were speaking but said it was not Chinese.  

23.PC 11620 observed what was happening from a gap in the doorway at the top of the staircase leading to the 8th floor[9]. PC 11620 saw D2 diagonally opposite him facing towards the flats.  In answer to the court PC 11620 said that when he first saw D2, D2 was watching the surroundings of the corridor by moving his head and body. 

24.PC 11620 also saw D1 holding a crowbar with both hands trying to prise the bottom window shown in photograph 6.  In cross-examination PC 11620 was shown a sketch he drew on which was marked the position he first saw D1 and D2[10].

25.PC 11620 then went forward and shouted police.  D2 took a look at PC 11620, who was in plain clothes, and then looked at D1 and shouted.  PC 11620 did not know what D2 shouted because he shouted in a foreign language. 

26.D1 and D2 ran towards the rear staircase.   D1 immediately dropped the crowbar on the ground in the position shown in photographs 4 & 5.  PC 11620 identified the crowbar, exhibit P9. 

27.PC 11620 chased after D1 and D2.  PC 11620 intercepted D2 and shouted to colleagues to stop D1.  In cross-examination PC 11620 said he chased after D2 for about half a meter before intercepting him.  PC 11620 marked on a copy of photograph 4 the place where he first saw D2 and where he intercepted D2[11].

28.In the meantime, PC 15607 had reached the 8th floor from the rear staircase.   PC 15607 opened the door of the staircase and saw D1 running towards him.  Upon hearing PC 11620 call out “stop him” PC 15607 stopped D1.  PC 15607 also saw PC 11620 and PC 6260 intercepting D2 in the middle of the corridor[12].     

29.PC 11620 showed D2 his warrant card.  D2 spoke in a language PC 11620 did not understand.  PC 11620 declared arrest in simple English and searched D2.  PC 11620 found a wig in the pocket of D2’s jacket[13].

30.PC 15607 searched D1 and found in his left front shirt pocket a receipt for a crowbar[14] and in his jeans a torch[15], two screwdrivers[16] and a pair of scissors[17].

Defence evidence

31.In summary D2 testified that he went to the building to collect money he had lent to his Nepalese friend Limbu, who lived on the 8th floor[18].  Limbu was not at home therefore D2 walked down the stairs to leave.  As D2 was walking down the stairs three to four uniform police officers were coming up the stairs and told him in English not to move.  D2 stood there and asked what was the problem.  

32.The police then took D2 to the very end of the corridor on the 8th floor and told him to stand there. D2 again asked what the matter was.  The police asked D2 what he was doing there.  D2 replied he was meeting his friend to collect money. 

33.After three or four minutes while the police were talking to D2, D1 was brought up to D2 and told to sit on the floor in front of D2.  D1 was handcuffed at his back.  In cross-examination D2 said that when he was taken to the corridor no one else was there.  When asked who was the next person to arrive D2 repeated that after three or four minutes D1 was brought to the corridor from the rear staircase.   

34.D2 did not know D1, did not go to the building with D1; did not assist D1 to break into any flat and did not see D1 use a crowbar. 

35.The police asked D1 if he knew D2.  D1 did not respond at first because he was very frightened.  When the police asked D1 a second time D2 told D1 to tell the police whether or not he knew him.  The police told D2 to keep quiet.  The police asked D1 again if he knew D2.  D1 replied he did not know D2. 

36.The police also took one Nepalese male to the corridor.  The Nepalese male was not the one who borrowed money from D2.  D1 said the Nepalese male was his friend and that he had come to the building to meet him.  In cross-examination D2 said the police brought up the Nepalese male because D1 had told them his friend lived there. 

37.Later during cross-examination D2 explained that the police first asked D1 in Chinese and then in English but D1 did not reply.  D2 therefore told D1 that they were asking him what he was doing there.  D1 told D2 that he was there to meet his Nepalese friend.  D2 then told this to the police. 

38.D2 said the wig was given to him by a friend as a sample to see if he could sell the wig.  In cross-examination D2 said he had been given the wig at between 6-6:30 that evening.

Video recorded interview (exhibit P2)

39.In the video recorded interview D2 exercised his right to silence when asked why he went to the building[19]. No adverse inference is drawn against D2 for exercising his right to silence.

40.D2 did however answer some of the questions asked by the police.   When asked by the police if he knew D1, D2 replied he did not know D1[20].  This answer is consistent with D2’s evidence in court.

41.D2 also answered questions about the crowbar and the receipt for the crowbar.  D2 replied he had not seen either the crowbar or the receipt[21].  D2 was not asked any questions about the crowbar or the receipt by Mr Polson or cross-examined on this by Mr McNamara. 

The evidence of D1

42.At the beginning of his testimony D1 confirmed that he had pleaded guilty to the charge and admitted the summary of facts were true and correct.  I direct myself that the fact D1 pleaded guilty to the charge and admitted the summary of facts is not evidence which can be used against D2.  The only evidence the court can take into account is the testimony of D1. 

43.D1 testified that at the time he was on the 8th floor he was with a Nepalese male he regarded as a brother.  D1 said he did not see D2 there; did not know D2 prior to the 27 December and did not know if D2 was arrested.  When asked if D2 ever assisted him to do anything that evening D1 replied yes.  This answer was not further pursued in evidence by Mr Polson. 

44.In cross-examination D1 said he saw D2 when the police brought him up.  At the time D2 was standing talking to the police.  When Mr McNamara put at the time the police arrived he was in the process of breaking into the flat, D1 replied he did not remember and went on to say that at that time he was sitting on the staircase with the Nepalese brother.  When Mr McNamara put that he ran away when the police arrived, D1 replied he ran away because he was asked by his Nepalese brother to run as it was not right to sit there.  D1 further explained this had happened several times before. 

45.Mr McNamara next asked D1 about the summary of facts he had admitted when pleading guilty.  D1 confirmed that the facts had been read to him by the interpreter and that he had agreed the facts were correct.  Mr McNamara then read out paragraphs 2 and 3 which are as follows:

2. At about 7:39 p.m. 2 police officers (PW’s 2 & 3) arrived to investigate. When PW3 reached the staircase at 7/F he heard the noise of something striking metal and 2 men speaking in a foreign language. He then saw the defendants. D2 was looking round whilst D1 was using a crowbar to prize open the window of the flat.

3. PW3 then approached the defendants and revealed his identity. When D2 saw PW3 he shouted and he and D1 fled towards the staircase. D1 dropped the crowbar which was later seized by police. PW3 intercepted D2 while D1 was intercepted by PW2. They were arrested.

46.After the two paragraphs were read to D1, D1 agreed that his evidence was totally different from what he had admitted when pleading guilty.  Asked by Mr McNamara which story was correct D1 replied he was not convinced by what was just read to him.  Asked again which story was correct, D1 replied what he said in court was the correct version and that what he had said earlier was the same. 

Discussion

47.I have carefully considered all the evidence and the submissions of Mr McNamara and Mr Polson.  I have no hesitation in rejecting the evidence of D2.  I do not find his evidence credible, in particular that he went to the building to visit a friend to collect money; he was stopped when walking down the staircase and that when he was taken by the police to the corridor on the 8th floor there was no one else in the corridor.  I am satisfied no weight is to be placed on D2’s answers in the video recorded interview that he did not know D1 and that he had not seen either the crowbar or the receipt.

48.I accept the evidence of PC 11620 that when he was between the 7th and 8th floors he heard the sound of metal being struck and the voices of two foreign males talking.  This evidence is consistent with the evidence of Mr Ho that he also heard the sound of metal banging and two males talking after which he called the police.  Although Mr Ho heard the sound of metal banging and the two males talking before the police arrived, the police arrived within a very short period of time. 

49.I accept the evidence of PC 11620 that he saw D2 watching the surroundings of the corridor by moving his head and body; D1 holding a crowbar with both hands trying to prise the bottom window shown in photograph 6; and that when he went forward and shouted police, D2 looked at D1 and shouted whereupon D1 dropped the crowbar and both D1 and D2 fled towards the rear staircase.  This evidence again is consistent with the evidence of Mr Ho having earlier heard two males talking and seeing the body of a person and something like a tube moving outside the kitchen window.    

50.I have no hesitation in rejecting the evidence of D1 that he was with a Nepalese male on the 8th floor; was sitting on the staircase when the police intercepted him and that he only saw D2 after he was brought up.  This evidence was materially different to the facts D1 admitted when pleading guilty, in particular that D2 was looking round when D1 was using a crowbar to prise open the window of the flat; and that when the police approached D2 shouted whereupon D1 and D2 ran towards the staircase.    

51.I remind myself that the rejection of the defence evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Verdict

52.I accept the evidence of Mr Ho and the police officers. Taking into account, inter alia, the following:

(a) around 7:30 p.m. on 27 December 2016 Mr Ho heard the sound of metal banging and the voices of two males coming from outside his kitchen;

(b) Mr Ho saw the body of a person moving outside the window; something like a tube moving; and a window moving;

(c) Mr Ho called the police who arrived at the building at 7:37 p.m.;

(d) when walking up the front staircase between the 7th and 8th floors PC 11620 heard the sound of metal banging and the voice of two foreign males;

(e) on reaching the 8th floor PC 11620 saw D1 and D2;

(f) D1 was holding a crowbar with both hands trying to prise the bottom window shown in photograph 6;

(g) D2 was standing close to D1 watching the surroundings of the corridor by moving his head and body; and

(h) when PC 11620 went forward and shouted police, D2 looked at D1 and shouted whereupon D1 dropped the crowbar and D1 and D2 fled towards the rear staircase.

I am satisfied so I am sure the only inference to draw is that D1 and D2 were party to a joint enterprise to break into Mr Ho’s flat with intent to steal and that the actions of D1 and D2 were more than merely preparatory and amount to an attempt to break into Mr Ho’s flat.

53.In reaching my verdict I have placed no weight on the evidence that D2 was found in possession of a wig.  Whilst this attracts suspicion that D2 possessed the wig for disguise, the fact remains at the time D2 was not wearing the wig to disguise his appearance. 

54.I have carefully considered everything said on behalf of D2 by Mr Polson, both individually and collectively, including that the presence of D2 on the 8th floor looking around and his fleeing when the police approach is insufficient to draw the inference D2 was part of a joint enterprise to break into Mr Ho’s flat with intent to steal.  Nothing said by Mr Polson causes me to doubt the findings I have made.

55.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 D2 is convicted as charged.