HKSAR v. Saeed Asif Shezad

DCCC 737/2017

[2018] HKDC 396

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 737 OF 2017

----------------------

----------------------

---------------------

Reasons for Verdict

---------------------

1.The defendant faces a single charge of burglary.

2.The defendant was found by police adjacent to a garden store hut that had evidence of being broken into.  Arresting officers found some items from inside the hut in his possession.

3.The defendant denied possession of these items, and says he was merely walking home.

4.The issue is simply whether there is sufficient evidence to prove to a criminal standard that the defendant entered the premises as a trespasser and took items from within it.

5.The premises in question in this burglary is a hut used for storing gardening and farming implements on the outskirts of a village called Kak Tin Village in Sha Tin that is described as being No 27 Pine Path.  The premises are possessed by an elderly gentleman, who was the first prosecution witness.

6.On 3 July 2017, he had gone there to work on his business of gardening and farming, and at around 3 o’clock in the afternoon he had left the premises locked by way of a padlock on a hasp.  The electric light in the hut had been turned off at that time.  Later that afternoon, between 3 and 4 o’clock, the second prosecution witness was driving home to his home in Kak Tin Village, and he saw what he described as a South Asian male beside the roadway near the hut brandishing a garden implement described in these proceedings as a sickle, but which is in fact a pruning implement.  PW2 was so concerned by this he called the police.

7.The police attended in the form of two units, a taskforce and an emergency unit.  A police officer saw the defendant outside the hut holding what is described as the sickle.  This officer, who was PW3, asked the defendant to put down the sickle, which he did.  He also asked the defendant for proof of identity.  PW3 says the defendant produced a photocopy of PW1’s identity card and a police report card of the loss of some items which is a POL 720.  These were produced from the defendant’s left front pocket.  The defendant was further searched.  A key bag and two car keys were also found on him.

8.PW1 later identified all these items as having been taken from inside the hut where they were stored in a metal cabinet.

9.A further search discovered that the hasp of the hut’s door was broken, with an intact padlock left on the ground, and the hasp had been secured by PW1 on leaving the hut earlier that afternoon.  There were also some signs of ransacking, and the electric light was switched on.

10.The defendant was arrested and interviewed on video the following day.  He said at that time he had gone to Fo Tan to meet a friend and was walking home, which is in Kowloon.  He had stopped at Kak Tin to drink water.  He said he had not entered the hut in question, did not break the hasp of the door, and had not turned on the light.  He said the items said to be found by police on him were not recovered from him and did not belong to him.  In a somewhat confused dialogue during the interview, the defendant said he had turned on lights of a hut on a hill.  In relation to the items found on him, he said “Return these things to whom it belongs”, and if he did wrong, he wanted to apologise.

11.It is the case the context of those utterings is somewhat unclear due to the double translation.  The prosecution does not appear to place great reliance upon them.

12.In the course of the trial, the defendant gave evidence.  He is a Form 8 holder seeking asylum and came to Hong Kong in 2009.  His explanation for being out in the New Territories that day was that he had a friend come to his home the previous evening, the defendant living in Kowloon.  In the morning the defendant had mistakenly put on his friend’s T‑shirt in order to go to the mosque at something like 6 o’clock in the morning to conduct prayer.  After prayers the defendant received a call from his friend, who he said had to go to work.  The defendant was at a garden or park nearby at that time.  Later they decided or they were told to exchange T‑shirts.  In order to do that he would have to go to Fo Tan where his friend was.

13.The defendant then said he went there to Fo Tan by minibus and East Rail.  At Fo Tan he called his friend, but received no reply.  Accordingly, he decided to walk home.  Whilst walking back, he found a place to drink water from a spring on a mountain, and it was at that time the police arrived.

14.They searched him, found nothing on him, walked away and let him go.  Then he was called back again as he was walking away. They made him sit down by the hut and later put him in a vehicle and took him to the police station.

15.He said in his evidence he had never handled the sickle or possessed any of the items the police say they found on him.  He also gave evidence that on a number of occasions he had returned lost property to the police, and these occasions were verified by the prosecution, and that is to show that he says his general attitude towards property was responsible.

16.As I have said, the defendant faces a single charge of burglary.  The prosecution must prove that beyond a reasonable doubt, and it must prove all the elements of that offence, the first being the defendant entered the hut at 27B Pine Path as a trespasser and therein stole the items particularised.

17.Stealing requires the dishonest appropriation of property belonging to another with the intention to permanently deprive the other of it.

18.Proof of all these elements must be to a criminal standard - that is, beyond reasonable doubt - and the burden to prove these remains on the prosecution at all times during this trial.

19.In this case there is no direct evidence of the defendant’s entry into the hut and taking of the items therein.  In order to prove this, the prosecution must rely upon the court being able to draw an inference as to that fact.

20.An inference to be drawn as a fact must, of course, satisfy the standard of proof.  That is, can it be drawn beyond all reasonable doubt?  This formula is also sometimes articulated as being the only reasonable inference that can be drawn.  If any other competing inference is possible, then of course the inference of guilt cannot be drawn beyond reasonable doubt.  The resolution of these issues is purely by way of fact.

21.The defendant denies he entered the property and took the items.

22.I believe it cannot be disputed that if it is proved that he did so, then guilt would necessarily be established, the act of entering being a trespass given that the door was locked by a padlock, and the defendant had no permission from PW1 to take any of the items within that property.

23.The defence submits that the prosecution evidence is contradictory and confused as to the arrest and search of the defendant and cannot be relied upon.  They also say or observe that PW2 was not in a position to identify the defendant and his evidence cannot therefore implicate the defendant.  They also say that the defendant’s evidence is believable and should be accepted by the court.  In terms of the evidence, the defence argue that the evidence shows that two teams of police officers went in response to PW2’s call to the police.  They included PW3 from the taskforce and PW4 and 5 from the emergency unit.

24.PW3 in fact said in his evidence that taskforce officers approached the defendant first, but he searched the defendant after the defendant put down the sickle.  In his search, PW3 told us that he found the property from the hut but did not recover the defendant’s Form 8 from the wallet or the two mobile phones in the defendant’s possession.

25.The defence say that PW3’s account is contradicted by PW4’s notebook.  It was said that the EU team approached the defendant first, that he was not holding anything in his hands, that the defendant produced his Form 8 on request, and nothing suspicious was found on him when there was a body search.  The defendant was confirmed by them not to be wanted, and that during this time the taskforce arrived and the taskforce officers took over the investigation.  They also point to an entry in PW5’s notebook that said that the EU’s case inquiry revealed no suspicion.  They say this cannot comfortably lie with the evidence of PW3 as to what he said he saw and did.

26.In fact, PW3 said he approached the defendant first.  The defendant held the sickle.  He was told to put it down.  The defendant produced PW1’s ID card and Form 720 in response to a request for identity.  During the search, PW3 said he found the defendant’s wallet and his Form 8.  He said the EU were not conducting inquiries with the defendant when he arrived.

27.PW4 in fact also said in her evidence that the other team - that was the EU and the taskforce - arrived at the same time, that the taskforce had entered from the other side and the EU followed them in.  She said that the notebook entry relied upon was not what she personally did but was in fact a form of resume of the outcome of the investigation; that in fact the taskforce did not come subsequently; that in fact when she saw the defendant, he had been stopped by the taskforce.

28.PW5 said that the taskforce had dealt with the defendant first, but that their timings were very close.  In fact, all the officers at the scene said that the taskforce - ie, PW3 - was the first to deal with the defendant.  Clearly, the EU had also later searched the defendant, with no result.  However, the evidence of PW4 and 5 did not in fact impugn PW3’s evidence that he was the first person to stop and search the defendant and that the items were received from him that he gave evidence of and that at the time of interception, he had possessed the item described as a sickle.

29.There was, in fact, on analysis of the evidence, no contradictory evidence amongst PWs 3 to 5, and the evidence was consistent with the basic chronology of events.

30.I did in fact find these witnesses, PWs 3 to 5, to be truthful and reliable as to how the defendant was in fact intercepted, searched and later dealt with.  I also found there was no basis on which to not accept the evidence of PW1 and PW2 as also being truthful and reliable.

31.In contrast to this, I found the defendant’s evidence to be difficult to credit.  His account of picking up the wrong T‑shirt and then going to Fo Tan to exchange it, yet failing to actually do so - in fact, failing to actually meet the person he was supposed to be meeting - seemed to me simply a piece of evidence that was given in order to account for his presence in the New Territories far from his actual home which is in fact in To Kwa Wan, because clearly normally the defendant, given his status here, would have no reason to be wandering around near Sha Tin.  I found the defendant simply made this up to account for his presence at this location.  His account of walking back seems to me to be far-fetched given the nature of the route that is necessary to do so - he had in fact got to cross over Lion Rock in what appeared to be Birkenstock sandals in the middle of summer.

32.I found it to be untruthful, and I found that I was in a position where I must reject the defendant’s evidence on these issues.

33.Given that I reject the evidence of the defendant, I am simply left with the prosecution evidence as it stands.  I accept the evidence of PW3 the defendant was holding the sickle, which PW1 had told us was inside the hut when he left it.  I also accept that PW3’s search of the defendant unearthed copies of PW1’s ID card, the POL 720 form, the key bag, the two keys and the two car keys that PW1 had identified as being his and having been left in the hut when he locked it.  Clearly he had not given anyone permission to access or enter the hut to take these items.

34.This is all proved to a criminal standard.

35.I also accept that it was in fact PW2 who had seen the defendant earlier holding P1, the sickle, in his hand.  Although PW2 does not and could not identify the defendant, the proximity of what he described as a South Asian male, which the defendant is, holding the sickle in the near vicinity of the hut as evidenced later by PW3 as well, leads me to the irresistible inference that it must have been the defendant who PW2 had seen earlier.

36.I also accept PW1’s evidence that he had left the hut locked and the items seized inside there, that the hasp had been broken and the hut entered; and the cumulative nature of these facts leads to an irresistible inference that the defendant must have entered the hut and taken the items particularised in the charge from inside.

37.The defendant was clearly scouring around the farmland that afternoon, and I find the evidence shows that it must have been him who broke into the hut by breaking the hasp and gaining entry that way in what was an opportunistic fashion to see if there was anything of value here. There clearly was little of value, but he took what little there is.

38.I am satisfied that inference can be clearly drawn on the basic facts proved.  I am satisfied the offence of burglary is proved on this evidence against the defendant, and convict him accordingly.