HKSAR v. Muhammad Ilyas

DCCC 960/2017

[2018] HKDC 597

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 960 OF 2017

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

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

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

REASONS FOR VERDICT

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

Introduction

1.According to the prosecution case, this is a non-domestic burglary.

2.A tenant[1], who rented a unit[2] for storing of goods, returned one day only to find the presence of a total stranger, the defendant, inside her premises; police were notified. As attending officers knocked on the door without any response, they then decided to wait in ambush outside the unit, about half an hour later the defendant came out with his hand holding a bag full of tools; on seeing the police, the defendant turned around and hurried back into the unit but was intercepted by the officers in the doorway.

3.The defendant originally faced 2 counts of burglary. On the first day of trial, the prosecution offered no evidence against him in respect of charge 1 which was then dismissed. Insofar as charge 2[3] was concerned, the prosecution would proceed with it.

4.The defendant denied the charge and chose to act in person. Enquiry made with the defendant by the court showed that it was the defendant’s intention to represent himself at trial without the help of a lawyer.

5.The evidence including prosecution witness statements had been supplied to the defendant[4] but he declined to look at any of them.  When asked by court as to the reasons, the defendant kept saying words to that effect that he was innocent and all the prosecution witnesses were lying.

6.Initially, the prosecution would rely not only on live witnesses but also the interview the defendant had with the police after his arrest, but having reviewed the situation, Mr. Cahill, the prosecutor, informed the court that he would only call live witnesses to testify.

7.The trial eventually commenced with the court explaining the trial procedures and his rights to the defendant and for that matter, as the trial proceeded, the court continued to do so at different stages as and when required.

Evidence

8.The prosecution called 4 witnesses to testify before me, namely,

PW1 – Madam Cheng, the tenant;

PW2 – PC Man, the arresting officer;

PW3 – PC Chan, who drew a sketch of the scene;

PW4 – SPC Hui, who took photographs of the scene.

9.The defendant elected not to give evidence personally nor did he call any witnesses on his behalf.

Analysis

10.There is no denying the fact that the defendant was inside Madam Cheng’s unit at the time. Madam Cheng testified that when she returned to the unit in the evening on 27 August 2017, she felt strange as she approached the unit because there was light inside.

11.The unit had only one entrance which was secured by a locked wooden door and an iron grille added with a padlock; but when Madam Cheng got to the outside of the unit, contrary to what she had seen last time, the grille was closed but the door was left open. She looked into the unit, saw a stranger[5] inside, and asked who he was; the stranger retorted with the same question. Madam Cheng went on to ask him if he rented the place; without answering, the stranger immediately slammed the door shut.

12.Police were called. One of the attending officers, PC Man, had tried but failed to gain entry into the unit because both the door and the grille couldn’t be opened, he then knocked on the door but no response. PC Man and his colleagues decided to wait in ambush outside.  

13.About half an hour later at around 8:39 p.m., the defendant came out of the unit with a yellow traveler’s bag in his hand. On seeing this, PC Man shouted, “Police”, the defendant then turned around intending to get back into the unit but the officers moved fast and managed to stop him in the doorway.

14.In the bag, officers found various decoration tools, including an electric drill, a nailer, a grinder, a heat gun and 3 screwdrivers. Madam Cheng was asked by the officers to look at the tools and she confirmed these were the tools belonging to Mr. Wong, a co-tenant whom she had sublet the unit to for him to store decoration tools.

15.The defendant did not dispute that he was the person inside the unit but denied that he was holding the bag in question at any time. He further suggested that he was the one who opened the door and the grille of the unit.

16.In fact, that part of the evidence where the defendant opened the door and the grille is supported by the testimony of the officer, PC Man, who saw him leaving the unit. The question I need to ask is in what capacity the defendant entered the unit in the first place and for what purposes.

17.Madam Cheng said she did not know the defendant who was a total stranger to her. I think she is telling me the truth for if it were otherwise, I wouldn’t expect her to call the police.

18.Although the co-tenant, Mr. Wong, had not been called as a witness, I have no difficulty in coming to the conclusion on the evidence before the court that the defendant was not authorized by either of them (Madam Cheng and Mr. Wong) to enter the unit. His entry was unauthorized and so the defendant was a trespasser.

19.Madam Cheng said although the unit was used for storage, it was furnished with TV set and fridge. Looking at the photographs, one can see that the unit has other furniture as well such as bed, sofa, writing table etc. The unit and the belongings as a whole could not have given the impression to public of being abandoned.

20.I have no doubt in my mind when the defendant gained entry via the door to the unit, he had had the intention to steal therein. Up to this point, there is sufficient evidence to found a conviction of a Section 11(1)(a) burglary (hereinafter called 1A burglary), but the defendant was charged with a section 11(1)(b) burglary (1B burglary) - the particulars are that the defendant stole therein one electric drill, one nailer, one grinder and one heat gun.

21.There are two forms of burglary. In the context of the present case, an 1A burglary is one which is committed upon entering a building as a trespasser with intent to steal; an 1B burglary is committed when, whatever the initial intention, a person, having entered premises as a trespasser, commits theft.    

22.Apart from the furniture, there are decoration tools being stored there by Mr. Wong who rented the place for such purpose. Those tools found in the yellow traveller’s bag are very saleable items indeed and are very attractive to thieves.  I have no doubt in my mind that PC Man was telling me the truth when he said he saw the defendant leaving the unit with this yellow bag in his hand and later found to contain the various tools as he had described which included the stolen property as particularised in the charge.

23.Having heard all the evidence, basically I accept the prosecution witnesses to be truthful and reliable and am satisfied that they are telling me the truth.

Conclusion

24.For the reasons given above, I am satisfied that the prosecution has proved the charge against the defendant to the required standard, i.e. beyond all reasonable doubt; the defendant is duly convicted as charged.