HKSAR v. Babar

DCCC 518/2018

[2019] HKDC 538

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 518 OF 2018

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of attempted theft, contrary to section 9 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2] (charge 1) and one charge of attempted burglary of domestic premises contrary to section 11 of the Theft Ordinance[3] and section 159G of the Crimes Ordinance.

Prosecution case

2.The prosecution case in summary is that on 24 March 2018 the defendant entered the fenced area on the ground floor of House No. 103 Yau Tam Mei Tsuen South District in Ngau Tam Mei and attempted to steal the property of Mr Lau Chi Kong (charge 1) and on 31 March 2018 attempted to burgle House No.187 Yau Tam Mei Tsuen East District, which is also in Ngau Tam Mei (charge 2).

Defence case

3.In summary the defence case is that on 24 March the defendant did not attempt to steal any property and only entered the fenced area of House No. 103 to look at a bicycle and a pair of gloves because he thought they looked nice (charge 1). On 31 March the defendant did not go to House No. 187 and attempt to burgle the premises but was riding home on his bicycle when he was stopped by a goods vehicle and was hit with a water pipe and tied up (charge 2).   

Evidence

4.The prosecution called three of four witnesses on the list of prosecution witnesses attached to the prosecution opening: Mr Lau Chun Ting (PW1) who witnessed the defendant inside the fenced area of House No. 103 and attempting to steal the property of his uncle Mr Lau Chi Kong; Mr Tseng Tak Kwong (PW2), who witnessed the attempted burglary of House No 187 and SPC 47135 (PW3), the arresting officer.

5.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance, including photographs[4]; the arrest of the defendant[5]; and seizure of exhibits[6]. I will refer to the admitted evidence as I review the evidence. 

6.Also admitted in evidence are three records of interview and a video recorded interview[7]. In reaching my verdict I have considered the content of the records of interview and the video recorded interview in accordance with the decision in R v Sharp[8].

7.The defendant elected to give evidence[9]. No witnesses were called on his behalf.      

8.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant on each charge before I can convict, each charge to be considered separately.  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 the defendant entitled to be acquitted.  

9.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.  

Charge 1

10.The particulars of the charge read:

“BABAR, on the 24th day of March, 2018, at House No. 103, Yau Tam Mei Tsuen South District, San Tam Road, Ngau Tam Mei, New Territories, in Hong Kong, attempted to steal from LAU Chi-kong.”

Prosecution evidence

11.Admitted in evidence is that Mr Lau Chi Kong resided at House No. 103[10].  Photographs 2, 3 & 4, exhibit P15, show the area outside the house within the fenced area[11].  On 24 March 2018 Mr Lau left home without locking the gate of the fence[12].

Mr Lau Chun Ting (PW1)

12.The prosecution called one witness Mr Lau Chun Ting (PW1) the nephew of Mr Lau Chi Kong and who resides in the same village about 50 meters from his uncle. 

13.PW1 is a police officer.  On 24 March 2018 PW1 was off duty when he walked past his uncle’s home at about 1210 hours.  PW1 was walking on the path shown in photograph 4.

14.As PW1 walked past his uncle’s house he saw a South Asian male inside the fenced area but outside the main house.  Admitted in evidence is that at around 1210 hours the defendant went inside the fenced area of House No. 103[13].

15.PW1 saw the defendant standing between the small red table and the ball shown in photograph 2.  PW1 stopped walking and watched the defendant from about 10 meters away.  PW1 marked a red cross on a copy of photograph 4 (exhibit P15 (4A)) indicating the position where he stopped on the path. 

16.PW1 could see the right side of the defendant’s body.  The lighting was sufficient and nothing blocked PW1’s view. 

17.The defendant was searching through items on the table on which there was a paper box and a white box as shown in photograph 2.  The defendant picked up a pair of black and yellow gloves from the table.  In answer to the court PW1 said the defendant picked up the gloves from the same position the gloves are shown in photograph 2[14].

18.PW1 identified the gloves, exhibit P14, as the gloves he saw the defendant pick up from the table.  Admitted in evidence is that on 9 April 2018 the police seized the pair of gloves, exhibit P14, which belonged to Mr Lau Chi Kong and had been placed on the table on 24 March 2018[15].

19.PW1 did not know the defendant and was not aware whether his uncle had invited any South Asian male to his home.  PW1 therefore shouted at the defendant “What are you doing?”  When the defendant realised PW1 had seen him he put down the gloves and left through the open gate shown in photograph 4.    

20.In cross-examination PW1 disagreed there was another lady near him on the path and explained that the lady came afterwards when the defendant started to leave.  PW1 said he knew the lady and explained that he did not mention the lady in his witness statement because the lady did not see what happened. 

21.PW1 disagreed that the lady said “Do you know the house owner Fei Chai” and asked “What’s happening?”  PW1 said he was the one who asked the defendant if he knew the house owner Fei Chai.  PW1 said that the defendant did not reply.  PW1 said he could not remember the defendant saying “I am just curious. I haven’t taken anything” and asking if the police needed to be called.  PW1 also did not remember that he or the lady said there was no need to call the police. 

22.PW1 agreed that the defendant said he saw a pair of gloves and went over to look at them.  PW1 said this was said by the defendant as he left the fenced area and before he left on his bicycle.  PW1 said he could not remember the defendant saying “I didn’t take anything, you need not be scared”.

23.As the defendant was leaving PW1, who was alone, used his mobile phone and took a photograph of the defendant.  Photograph 1, exhibit P15 is a photograph of PW1’s phone showing the photograph he took of the defendant.  In cross-examination when Mr Davies put the defendant did not try to stop him taking a photograph of him, PW1 agreed and explained that when the defendant lowered his head and used his mobile phone he took the opportunity to take the photograph of the defendant.

24.The defendant left on the bicycle shown in photograph 1.  In cross-examination PW1 agreed that the defendant just got on his bicycle and calmly rode away. 

25.PW1 said from the time he noticed the defendant, shouted at him and the defendant left the duration was about 10-20 seconds.

26.In answer to the court PW1 said he did not arrest the defendant because he was alone and concerned about his safety.  PW1 explained that he saw the defendant had some hard object in his windbreaker and trousers and feared the defendant might have weapons to attack him.

27.In further cross-examination PW1 said he did not immediately report the matter to the police because he was not sure if his uncle knew the defendant and therefore there might have been a misunderstanding.  

Records of Interview (exhibits P17, P18 & P19)

28.The defendant was arrested on 31 March 2018 in connection with charge 2.  Admitted in evidence are three records of interview (exhibits P17, P18 & P19)[16].  The first record of interview (exhibit P17) was conducted in Chinese only.  The defendant told the police he had no problem understanding and speaking Chinese[17].

29.Under caution the defendant said that when he went past a house on his bicycle he found the door of the house was opened and that there was a bicycle and cycling gloves inside.  The defendant thought that they were quite nice and therefore went inside to have a look.  The defendant said he did not touch anything inside there[18].

30.The defendant was then arrested and cautioned again.  The defendant was asked why he went to the offence location.  In summary the defendant told the police that:

Answer 4 – he travelled around by bicycle and happened to reach the location;

Answers 5 & 9 – because the door was open and there was a bicycle and a pair of red cycling gloves on a table he took a look out of curiosity because they were nice;

Answer 6 – a female aged around 30 and a male aged 20 appeared and asked if he knew the owner Fei Chai. The defendant said he did not know him;

Answer 7 – the defendant told the two persons he was curious; he did not take anything and asked if the police needed to be called. The defendant was told no;

Answer 8 – the defendant then left on his bicycle. Nobody stopped him; and

Answer 10 – the defendant did not inform the house owner; knew that it was wrong to enter other’s house and asked for a chance.

31.In the second record of interview (exhibit P18) the first record of interview was read over to the defendant again in Urdu and English.  No additional questions were asked of the defendant.

32.In the third record of interview (exhibit P19) it was pointed out to the defendant that in the first record of interview he was told the incident was 23 March 2018 when the correct date should be 24 March 2018.  The defendant replied that he knew the date was 24 March 2018 and that he did not point this out at the time because he only paid attention to the case summary[19].

Defence evidence

33.In summary the defendant testified that on 24 March he had been doing some demolishing work for a friend in Yuen Long and was on his way home when he cycled past House No. 103.  When asked by Mr Davies why he went past Yau Tam Mei Tsuen the defendant replied because he liked riding bicycle. 

34.In cross-examination the defendant said that prior to 24 March he had taken the route through Yau Tam Mei four to five times but that was the first time he went passed House No. 103. 

35.The defendant stopped outside House No. 103 because he saw a bicycle and a pair of gloves which looked nice to him.  The defendant said he was on the path outside the fence shown in photograph 4 (exhibit P15), when he saw the bicycle and gloves.

36.The gate of House No. 103 was open as shown in photograph 4.  The defendant put his bicycle in front of the gate and went in to check the bicycle and the gloves.  In cross-examination the defendant disagreed that he was searching the items on the table. 

37.When the defendant was checking the bicycle and the gloves a man and woman popped up.  The defendant explained that the man and woman were on the path shown in photograph 4 and looked as if they were walking home.  

38.The defendant did not notice them in the beginning.  A man shouted asking him if he knew the owner of the house, “Fei Chai”.   The defendant walked out to speak to them, telling them that he walked in because he noticed a nice pair of gloves and a bicycle.  The defendant went on to say he did not steal anything and asked them if they needed to call the police.   The woman said there was no need to call the police.

39.The defendant then left on his bicycle slowly.  Before leaving the defendant used his phone as shown on photograph 1 (exhibit P15) because he had received a WhatsApp message.  The defendant did not know a photograph was being taken of him.  In cross-examination the defendant agreed he left calmly because he thought nobody would call the police. 

40.Photograph 1 shows the defendant wearing a mask.  The defendant explained he was wearing a mask because he did not feel well having taken drugs.  In cross-examination the defendant disagreed that he was wearing a mask to avoid being recognised.

41.The defendant did not intend to steal anything from House No. 103 and never considered stealing anything.  In cross-examination the defendant agreed that he knew the gloves were the property of an owner.

Discussion

42.In his evidence the defendant said he was wearing a mask because he had taken drugs. The fact the defendant had taken drugs does not mean that he is not telling the truth about what happened on 24 March and does not mean that he is guilty of the charge[20].

43.I have carefully considered all the evidence and the submissions of Ms Alva and Mr Davies.

44.I have no hesitation in rejecting the defendant’s evidence and his explanation in the record of interview that he went inside the fenced area to look at a bicycle and a pair of gloves because they looked nice.  I do not find the defendant’s evidence credible, for example I do not find credible the defendant’s evidence that he just happened to pass House No. 103 and noticed a bicycle and a pair of gloves so he stopped and went in to look at them.

45.Mr Davies submits that the detailed account given by the defendant in the record of interview about what happened is more accurate and complete than both the evidence-in-chief of PW1 and PW1’s witness statement, in particular the reference to the presence of a woman at the scene and the conversation at the scene[21].

46.I accept the explanation given by PW1 in cross-examination that the lady only came when the defendant started to leave and that he did not mention the lady in his witness statement because the lady did not see what happened[22]. 

47.In cross-examination when Mr Davies put the defence case PW1 said he could remember asking the defendant if he knew the house owner Fei Chai but could not remember the defendant saying, “He was curious. I haven’t taken anything”.  PW1 also could not remember the defendant asking if the police needed to be called and could not remember that he or the lady replied no need[23].   

48.PW1 said that in his recollection these were not said.  Asked by Mr Davies “You cannot be sure?” PW1 replied “Right”.  The fact that PW1 was not sure about all the conversation does not cause me to doubt his evidence about what he saw the defendant doing inside the fenced area of House No. 103. 

49.In the record of interview the defendant said that he did not touch anything inside there[24]. In cross-examination the defendant agreed that he picked up the gloves.  When Ms Alva put that when he heard PW1 shout what are you doing he immediately put down the gloves, the defendant replied he put down the gloves slowly. 

50.In answer to the court the defendant said what he told the police should be correct[25].

51.I am satisfied no weight is to be placed on the defendant’s reply under caution that he did not touch anything.  I accept the unchallenged evidence of PW1 that the defendant was searching the items on the table and picked up the gloves. 

52.Further, when Ms Alva put that his intention was to steal the gloves the defendant replied “Agree”.  Asked by the court what he was agreeing with the defendant said it was a slip of the tongue.  Asked again what he was agreeing with the defendant replied he was asked whether he would like to take away the gloves. Asked what the slip of the tongue was the defendant said that he had mistakenly said agree[26].

53.I am satisfied the defendant’s evidence and his explanation in the record of interview that he noticed a bicycle and a pair of gloves so he stopped his bicycle and went in to look at them is entirely contrived to try explain why he went into the fenced area of House No. 103, which he told the police he knew was wrong[27].

54.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.

55.I accept the evidence of PW1. Taking into account, inter alia, the following:

(a) the defendant entered as a trespasser the fenced area of House No. 103;

(b) the defendant knew that it was wrong to enter other’s house;

(c) the defendant searched the items on the table and picked up a pair of gloves; and

(d) as soon as PW1 asked what he was doing the defendant immediately put the gloves down and left;

I am satisfied so I am sure the only inference to draw is that the defendant entered the fenced area of house no. 103 with the intention to steal. I am satisfied so I am sure that by searching the property of Mr Lau Chi Kong the actions of the defendant were more than merely preparatory and amount to an attempt to steal property from Mr Lau Chi Kong[28].

56.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Davies, both individually and collectively, including that the defendant did not immediately leave; engaged in a conversation with PW1 and allowed himself to be photographed[29]. Nothing said by Mr Davies causes me to doubt the findings I have made.

57.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 has proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted of charge 1, attempted theft.   

Charge 2

58.The particulars of the charge read:

“BABAR, on the 31st day of March, 2018, in Hong Kong, attempted to enter as a trespasser a building known as House No. 187, Yau Tam Mei Tsuen East District, San Tam Road, Ngau Tam Mei, New Territories, with intent to steal therein.”

Prosecution evidence

59.Admitted in evidence is that Mr Lai Wing Ki resided at House No. 187. On 30 March 2018 Mr Lai left Hong Kong locking the entrance gate before he left.  Mr Lai returned to Hong Kong on 1 April and confirmed nothing was lost or damaged[30]. 

60.Photographs of the location of House No. 187 and where the defendant was arrested have been admitted in evidence, exhibit P16 (1-24)[31].

61.The prosecution called two witnesses Mr Tseng Tak Kwong (PW2) who witnessed the attempted burglary of House No 187 and SPC 47135 (PW3), the arresting officer who explained the photographs (exhibit P16)[32].

Location

62.Mr Tseng described an incident when he saw a person standing at the door of the house shown in photograph 1.  Mr Tseng did not remember the date of the incident or know the name of the district where the house was. 

63.At the end of his evidence Mr Tseng said that he gave a witness statement to the police the same day as the incident.  Leave was given to Mr Tseng to refer to his witness statement.  Mr Tseng said the witness statement was dated 31 March 2018.

64.SPC 47135 said the address of the house shown in photographs 1, 2, 13 & 14 was No. 187, Yau Tam Mei Tsuen, San Tam Road in Ngau Tam Mei.  SPC 47135 did not know whether the house was in East District.  Photograph 15 shows a close up of the gate.  The address of the house can be seen in the right upper corner of the right hand side of the gate.   With the assistance of a magnifying glass SPC 47135 was able to read the address: 0187 Yau Tam Mei Tsuen, East District.

65.After SPC 47135 gave evidence the prosecution and defence admitted that photographs 1, 2, 3, 13, 14 & 15, exhibit P16 depict the outside of House No. 187, Yau Tam Mei Tsuen East District, San Tam Road, Ngau Tam Mei[33].

Sketch (exhibit P23)

66.Admitted in evidence is a sketch (exhibit P23) showing the layout of the vicinity of House No. 187 and the place where the defendant was arrested near lamppost H4102[34]. Admitted in evidence is that lamppost H4102 is somewhere around 150 meters from House No. 187[35].

67.SPC 47135 marked on a copy of the sketch (exhibit P23A)the direction shown in various photographs and the position of the photographer[36]. 

Mr Tseng Tak Kwong (PW2)

68.Mr Tseng gave his evidence on 4 March and 6 March[37]. In summary Mr Tseng testified that he was driving his car when he saw a male riding a bicycle.  Mr Tseng stopped his car when he saw the male standing by the door shown in photograph 1.  Mr Tseng saw the male was holding objects like a screwdriver trying to prize the lock shown in photograph 1. 

69.When Mr Tseng resumed his evidence on 6 March and repeated what he had seen the male doing the court clarified whether he saw the male get off the bicycle.  Mr Tseng said it seemed he had not said he saw the male standing and that he could not remember if the male got off his bicycle.

70.With reference to photographs 13 and 14 Mr Tseng said he was over 10 meters from the house just off the bottom of photograph 13.  In answer to the court Mr Tseng described the road as one way.  In cross-examination SPC 47135 said there was no limitation on the direction of travel on the road outside House No. 187 or on the road where lamppost H4102 was.   

71.Mr Tseng observed the right side of the male but did not see his face.  The male was wearing a mask.  Mr Tseng said the male was not Chinese and the colour of his skin was dark.  Mr Tseng was unable to remember the clothing the male wore and what shoes he was wearing.  Mr Tseng did not pay attention to the hairstyle of the male.  Mr Tseng said nothing obstructed his view and that the headlights of his car were on.   In cross-examination Mr Tseng agreed it was dusk and he could not see the bicycle clearly. 

72.Asked how long he observed the male, Mr Tseng replied within seconds. When Mr Tseng resumed his evidence on 6 March he said he observed the male for less than twenty seconds.  Later Mr Tseng said he observed the male for over ten seconds at the most. 

73.After prizing the lock, the male pocketed the screwdriver and left on his bicycle up the road.  Mr Tseng did not say anything to the male.  When asked if he saw what made the male leave Mr Tseng replied that the male saw his car[38].

74.Mr Tseng chased after the male keeping a distance of about 10 feet.  When chasing the male Mr Tseng did not see anyone else on a bicycle. 

75.To assist Mr Tseng in describing the route taken by the man on the bicycle a copy of the sketch (exhibit P23) was given to him, marking the three lanes as lanes 1, 2 and 3 (exhibit P23B).  House No. 187 was on lane 1. 

76.Mr Tseng said that the route taken by the male when he left on his bicycle was lane 1 and lane 3.  Mr Tseng said he lost sight of the bicycle for a few seconds at a bend on lane 1 shown in photograph 16. 

77.Mr Tseng next saw the male on the bicycle in lane 3 at the point marked X on the sketch.  The male had been caught by the villagers.  In cross-examination Mr Tseng said he did not see the villagers stop the male on the bicycle. 

78.Mr Tseng assisted other villagers to see if the male had any weapons.  The cutters and screwdriver shown in photograph 7 were taken out of the defendant’s waist bag by one of the villagers when checking whether the male had anything dangerous.  In cross-examination Mr Tseng disagreed the items found on the ground were taken from the bicycle. 

79.When Mr Tseng arrived the male was still wearing the mask.  A villager took the mask off and dropped it on the ground as shown in photograph 6. 

80.Mr Tseng estimated the time from when he first saw the male on the bicycle to the time he saw the male was caught by the villagers was less than one minute. Asked why he was sure the man he chased was the same man the villagers caught Mr Tseng replied, “That was not a long road.  That’s it”.

81.At the end of cross-examination when put that the man who was stopped by the villagers was not the same man he saw prying the gate Mr Tseng replied, “They are the same person.  In my view there are clothing.  I could remember that at that time”. 

Police evidence

82.Admitted in evidence is that SPC 47135 arrived at lamppost H4102 at 18:56 hours at which time he saw a few persons surrounding the defendant and that after investigation he arrested and cautioned the defendant for attempted burglary[39].  In cross-examination SPC 47135 said that from his perspective he could not say whether the villagers had tied up the defendant.  In answer to the court SPC 47135 said when he arrested the defendant he was not tied up. 

83.In evidence SPC 47135 said that before arresting the defendant he made investigation with a villager called Tseng Tak Kwong (PW2).  SPC 47135 identified photographs 4, 5, 20, 21, 22 & 23 as showing the place where he arrested the defendant.  After SPC 47135 gave evidence the prosecution and defence admitted that photographs 4, 5 & 22 depict the scene where the defendant was arrested[40].

84.Admitted in evidence is that at the time of arrest the defendant was wearing white gloves (exhibit P4) and a camouflage waist bag (exhibit P1) with a black torch sheath (exhibit P2) and a black box-shaped bag attached (exhibit P3)[41].

85.Admitted in evidence is that on the ground by lamppost H4102 the police found three screwdrivers (exhibits P5, P6 & P7), two folding sets of hex keys (exhibits P8 & P9); two cutters (exhibits P10 & P11), a face mask (exhibit P12) and a bicycle (exhibit P13)[42].

86.SPC 47135 said the items shown in photographs 6, 7, 8, 9 & 10 were on the ground when he arrived.  After SPC 47135 gave evidence the prosecution and defence admitted that photographs 6-10 depict exhibits P5-P13[43].

Video recorded interview (exhibit P21)

87.Admitted in evidence is a video recorded interview conducted on 1 April 2018.  For most of the questions the defendant exercised his right to silence and had nothing to say.  No adverse inference is drawn against the defendant for exercising his right to silence.

88.During the interview the defendant was shown exhibits P1-P13, one by one.  When asked if he knew who the exhibits belonged to the defendant replied each time “mine”. When asked if he had anything to say about the exhibits the defendant replied each time that he had nothing to say[44].

89.Also admitted in evidence is that exhibits P1-P13 belong to the defendant[45].

Defence evidence

90.In summary the defendant testified that on 31 March he had also been doing some demolishing work for a friend in Kam Tin finishing around 6-7 p.m.  After work the defendant cycled home.    

91.When the defendant passed Ngau Tam Mei a goods vehicle emerged from a corner nearly hitting the defendant head on.  In cross-examination the defendant marked X on a copy of photograph 20 indicating the point where the goods vehicle nearly hit him head on. 

92.The defendant was travelling on lane 3 in the direction of the junction (the opposite direction to which Mr Tseng said the male on the bicycle was travelling).  In cross-examination the defendant said this was the first time he had taken this route home.  The defendant said he did not choose the route and that he just cycled wherever he wanted to go. 

93.The goods vehicle stopped in front of the defendant’s bicycle.  The driver lowered the window and said to the defendant that he was going to steal and that he would call the police.  The defendant told the driver to go ahead and said he would wait there. 

94.Several minutes later the driver made a phone call.  Suddenly a seven seater car came and five people alighted, some carrying water pipes and one with a rope.  In panic the defendant stepped back.  One of the persons came forward and hit the back of the defendant’s right leg causing the defendant to lie prone on the ground. 

95.The defendant was then tied up. Before being tied up the defendant took of his mask and put the mask on the ground as shown in photograph 6.   In cross-examination the defendant said that he removed his mask so they could see his face to confirm whether they had made a mistake.  The defendant disagreed that he was wearing a mask to avoid being recognised.

96.The driver of the goods vehicle then took out everything from the defendant’s bicycle including the hex keys, the screwdrivers and the cutters shown in photographs 7, 8 & 9. 

97.The defendant kept the hex keys, the screwdrivers and the cutters in a bag on the crossbar of the bicycle shown in photograph 10.  The defendant said they had always been on his bicycle and were used for repairing his bicycle. 

98.At the end of his examination-in-chief when Mr Davies asked if he had ever seen Mr Tseng (PW2) before and whether he was one of the people at the scene when the police arrived, the defendant replied that he was one of them and remembered that PW2 had hit him on the head with a pole.  The defendant said that was the first time he had ever seen PW2. 

99.The defendant did not go past House No. 187 and never tried to prize open the gate of House No. 187. 

Discussion

100.At the beginning of his evidence when describing that he saw a person riding a bicycle Mr Tseng told the court that there had been many burglaries during that period of time and that CCTV footage captured the appearance of the burglar.  As indicated in court at the time I disregard all reference to other burglaries and reach my verdict on the evidence relating to the charge. 

101.In evidence the defendant said that he was going home to change before going to the police to answer his bail.  In cross-examination the defendant said he was wearing a mask because he had taken a little bit of cannabis that day.

102.The fact that the defendant may be a person of bad character by reason of answering police bail and taking dangerous drugs does not mean the defendant is not telling the truth about what happened on 31 March and does not mean that he is guilty of the charge[46].

103.I have carefully considered all the evidence and the submissions of Ms Alva and Mr Davies.

Identification

104.Mr Tseng says the person he saw prizing the gate of House No. 187 and who he chased after is the same person who was stopped by the villagers, namely the defendant[47].

105.The defence case is that the defendant was travelling in the opposite direction. Mr Davies submits that the evidence of Mr Tseng was unconvincing whereby the court cannot be sure that the defendant was the person seen by Mr Tseng near House No. 187[48].

106.The prosecution case depending on identification evidence I direct myself in accordance with the principles established in R v Turnbull[49].  I warn myself of the special need for caution before convicting the defendant in reliance on the evidence of identification. 

107.I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.  I remind myself of the possibility that a mistaken witness can be a convincing witness and that mistakes in recognition of close relatives and friends are sometimes made[50].

108.I have no hesitation in rejecting the defendant’s evidence.  I do not find the defendant’s evidence credible, for example I do not find credible that the defendant was on his way home, travelling in the opposite direction to what Mr Tseng said, when all of a sudden a goods vehicle pulled out from a corner and nearly hit him head on and that several minutes later a seven seater car came and five people alighted, some carrying water pipes and one with a rope, after which he was hit on the leg and tied up. 

109.In answer to the court the defendant said the corner where the goods vehicle pulled out from was not shown on the sketch (exhibit P23B)[51] and was unable to point out where the corner was on either photograph 20 or 21[52]. 

110.When describing what happened after the seven seater car arrived the defendant said he was hit on the right leg causing him to lie prone on the ground and was tied up.[53]. Only at the end of his examination-in-chief when Mr Davies asked if Mr Tseng (PW2) was one of the people at the scene when the police arrived, the defendant replied that he was one of them and remembered that PW2 had hit him on the head with a pole[54].

111.I do not find credible the defendant’s evidence that Mr Tseng hit him on the head with a pole, which I note was never put to Mr Tseng. 

112.I accept the evidence given in cross-examination by SPC 47135 that from his perspective the villagers had not tied up the defendant and in answer to the court said that the defendant was not tied up when he arrested him[55].

113.I do not find credible the defendant’s explanation that the cutters, screwdrivers and hex keys were for repairing his bicycle.  I reject this explanation.   

114.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.

115.In summary Mr Tseng said the male was not Chinese, had dark skin and was wearing a mask.  Mr Tseng could not remember the male’s clothing or shoes.  The headlights of Mr Tseng’s car were on and nothing obstructed his view of the male[56].

116.Mr Tseng observed the male for between 10 and 20 seconds after which the male left on his bicycle.  Mr Tseng followed the male at a distance of about ten feet but lost sight of him on a bend.  The next time Mr Tseng saw the male, the male had been caught by villagers.  Mr Tseng said the time from when he first saw the male to the time the male was caught by the villagers was less than one minute[57]. 

117.Mr Tseng having lost sight of the male, I am satisfied that I should look for evidence which goes to support the correctness of the identification.  The court in Turnbull said that odd coincidences can, if unexplained, be supporting evidence[58].

118.I am satisfied full weight is to be attached to the defendant’s admissions that the screwdrivers, the hex keys, the cutters and the bicycle were his. 

119.It is an odd coincidence that the defendant, who is non-Chinese and of dark coloured skin, was riding a bicycle, wearing a mask and in possession of three screwdrivers, two sets of hex keys and two cutters when he was stopped about 150 meters from House No. 187 within a very short time after a male, who was also non-Chinese,of dark skin, wearing a mask and riding a bicycle, used a screwdriver to prize open the gate of House No 187 and left on his bicycle towards the direction where the defendant was stopped. 

120.After careful consideration I am satisfied this evidence does support the evidence of Mr Tseng that the burglar and the person stopped by the villagers are the same person. 

121.Having carefully considered all the evidence and the circumstances of the identification, including that the distance from House No 187 was 150 meters; the time between Mr Tseng first seeing the male and the time he saw the villagers had caught the male was very short and that while chasing the male Mr Tseng did not see any other bicycle, I find I am satisfied so I am sure that the prosecution have proved beyond reasonable doubt that the defendant was the burglar. 

122.I am satisfied so I am sure that the actions of the defendant were more than merely preparatory and amount to an attempted burglary of House No. 187.  I reject the submission of Mr Davies that it is not clear what Mr Tseng saw the person doing was prising the gate[59]. Mr Tseng was clear in his evidence that he saw the male holding objects like a screwdriver trying to prize the lock of the gate to House No. 187[60].  

123.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Davies, both individually and collectively, including that there is no DNA or CCTV evidence, no scratch marks on the door or paint marks on the screwdriver[61] and that none of the villagers were called to contradict the evidence of the defendant[62].  Nothing said by Mr Davies causes me to doubt the findings I have made.

124.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 has proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted of charge 2, attempted burglary.