HKSAR v. Jarmanjit Singh

DCCC 95/2018

[2019] HKDC 712

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 95 OF 2018

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of attempted burglary of Flat B3 on the 2nd Floor of Sui Ying Industrial Building, No 1 Yuk Yat Street in Hung Hom, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2].

Introduction

2.Flat B on the 2nd Floor of Sui Ying Industrial Building consists of eight subdivided flats, B1-B8 (“Flat B”).  The main entrance of Flat B was a metal gate with an electronic combination lock. 

3.Mr Chiu Chung Kin rented flats B3 and B8.  Flat B3 was used by Mr Chiu as the business office of his company Compact-Tai On Joint Venture Limited (“Flat B3”).

Prosecution case

4.The prosecution case in summary is that at 8 p.m. on 13 October 2017 Mr Chiu locked the wooden door of Flat B3 and left work.  At around 11 p.m. SPC 52778 and PC 22394 went to Flat B to conduct an anti-burglary operation.  At around 2:58 a.m. on 14 October 2017 SPC 52778 heard the sound of someone pressing the electronic keyboard.  Shortly after SPC 52778 saw the defendant trying to open the door of Flat B3.  On seeing SPC 52778 the defendant ran towards the main entrance of Flat B.  SPC 52778 gave chase and arrested the defendant in the lift lobby.

Defence case

5.The defence case in summary is that the defendant went to Flat B together with Manpreet Singh Mandy to visit an amusement game centre.  The defendant did not attempt to enter Flat B3 and that the police have mistaken him for Manpreet Singh Mandy.

Evidence

6.The prosecution called one witness SPC 52778[3]. Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance, including photographs (exhibit P4)[4]; CCTV footage (exhibit P5) [5]; and the arrest of the defendant[6]. I will refer to the admitted evidence as I review the evidence. 

7.Also admitted in evidence is a video recorded interview (exhibit P3) in which the defendant admits going to Flat B but denies attempting to enter Flat B3[7]. 

8.The defendant elected to give evidence.  No witnesses were called on his behalf. Admitted in evidence is that the defendant has a clear record[8].  I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[9].

9.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.  

10.I remind myself 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

11.Admitted in evidence is that Flat B on the 2nd Floor of Sui Ying Industrial Building consists of eight subdivided flats, B1-B8[10] and that the main entrance of Flat B was a metal gate with an electronic combination lock[11].  Photograph 2, exhibit P4 shows the metal gate and electronic combination lock. 

12.Admitted in evidence is that Mr Chiu Chung Kin (“Mr Chiu”) rented flats B3 and B8 and used Flat B3 as the business office of his company Compact-Tai On Joint Venture Limited[12].

13  October 2017

13.Admitted in evidence is that at 8 p.m. on 13 October 2017 Mr Chiu locked the wooden door of Flat B3 and left work; only Mr Chiu and his brother had a key to Flat B3; there was no spare key and Mr Chiu had not lost his key previously[13]. Photographs 4-6, exhibit P4 show the wooden door to Flat B3.

SPC 52778

14.Admitted in evidence is that at around 11 p.m. on 13 October 2017 SPC 52778 and other officers went to Flat B to conduct an anti-burglary operation[14].

15.In summary SPC 52778 testified that after entering Flat B he checked all the flats to see if there were any signs of prizing.  At the beginning of cross-examination SPC 52778 said he checked by looking at the doors from the outside; did not know if all the doors were locked; did not know who rented or owned room 7; did not know whether a gaming centre was run out of room 7 and did not know whether the police had raided room 7 prior to 14 October 2017.  In answer to the court SPC 52778 said he was unable to tell from outside the rooms what the premises were[15].

16.SPC 52778 then positioned himself in the toilet together with another colleague, PC 22394[16]. In cross-examination SPC 52778 said that while in the toilet he recalled that he did peer out of the door down the corridor but not continuously and that he mainly tried to listen to sounds. 

17.At around 2:58 a.m. on 14 October 2017 while still positioned in the toilet SPC 52778 heard the sound of someone pressing the electronic keypad, followed by the sound of footsteps and the metal gate closing.  SPC 52778 continued to listen and heard more footsteps followed by a scraping sound and the turning of a doorknob. 

18.SPC 52778 then informed PC 22394 that he would go out to look.  SPC 52778 walked along the corridor to a corner from where he could see a male around five meters away outside Flat B3 facing the door of Flat B3[17]. 

19.SPC 52778 produced a sketch he drew of the layout of Flat B (exhibit P7).  The toilet is shown in the left top corner of the sketch.   Rooms (flats) ①, ②, ③, ⑥, ⑦ & ⑧ are marked on the sketch. SPC 52778 explained that he only marked the number of the rooms (flats) where the number was on the door of the rooms (flats).  SPC 52778 also explained that the note to room ③ at the foot of the sketch and translated as “Room ③ was the flat in which the case occurred” was to indicate the room where the case happened. 

20.SPC 52778 marked on a copy of the sketch the route he took from the toilet to the corner, marking the corner with a red X (exhibit P7B).  SPC 52778 said photograph 4, exhibit P4 shows the door of Flat B3 and the corner where he was standing, which is at the far end of the corridor on the left hand side, the same side as the door of Flat B3.  At the end of the corridor SPC 52778 said he turned left to go to the toilet.  In answer to the court SPC 52778 said that one could also turn right at the end of the corridor. 

21.SPC 52778 described the male as being of fat build and wearing a long sleeved brown check shirt, blue jeans, black sports shoes and a silver bangle on his right hand.  In cross-examination when asked if he was more focused on what the male was doing rather than what the male was wearing SPC 52778 disagreed and said that both matters were important. 

22.SPC 52778 described the lighting as sufficient, explaining that the lighting in the corridor of Flat B was on.  In cross-examination SPC 52778 disagreed that the lighting in the corridor was off and that it was very dark.

23.SPC 52778 saw the male holding two cards in his right hand, one black and one white.  The male used the black card to slip inside the gap of the wooden door and at the same time turned the doorknob with his left hand.  This took ten odd seconds. The male then used the white card and again turned the doorknob with his left hand.  This took about ten odd to twenty seconds. 

24.While observing the male nothing blocked the view of SPC 52778. 

25.In cross-examination SPC 52778 said that he never saw the male hold the cards in his left hand.  When put that it was very difficult, if not impossible to use one card while holding the other card in the same hand SPC 52778 replied that he did not know how difficult that was but that was what happened.  SPC 52778 said he did not know if the door handle was examined for fingerprints as that was not part of his job. 

26.When the male noticed the presence of SPC 52778 the male immediately ran in the direction of the exit.  In cross-examination SPC 52778 said from the time he saw the male facing Flat B3 to the time the male ran was about thirty to forty seconds and that he only saw the face of the male for around one second when the male looked in his direction. 

27.SPC 52778 gave chase.  In cross-examination when asked whether during the chase he said anything or PC 22394 or the male he saw at Flat B3 said anything, SPC 52778 replied that he said “chase” to indicate to PC 22394 to give chase. 

28.SPC 52778 stopped the male at the lift lobby.  In cross-examination SPC 52778 agreed that when the male went round the corner he lost sight of him; he did not see the male leave Flat B and that the next time he saw the male was in the lift lobby.  SPC 52778 estimated that the male was out of his sight for about one second.

29.SPC 52778 asked the male in both Cantonese and English why he ran and why he was there. The male did not respond.  The male was sweating and appeared nervous.  SPC 52778 then revealed his identity.  SPC 52778 identified in court the male he intercepted was the defendant. 

30.Admitted in evidence is that shortly after 3:00 a.m.SPC 52778 conducted a body search of the defendant and found on his person a white card (exhibit P1) and a slightly damaged Bank of East Asia card (exhibit P2)[18].  SPC 52778 testified that he found the cards in the right front pocket of the defendant’s trousers and believed they were the two cards he had seen the male use to slip into the door of Flat B3.

31.In cross-examination SPC 52778 disagreed that the two cards were found in a wallet in the right back pocket of the defendant’s trousers.  SPC 52778 agreed that the black card was damaged and said that he checked Flat B3 and the area where he gave chase but could not find the broken piece.   

32.Admitted in evidence is that at 3:10 a.m. SPC 52778 declared arrest on the defendant[19].  In cross-examination SPC 52778 agreed that the defendant was not panting or out of breath when he was arrested. 

33.SPC 52778 also agreed that after the defendant was arrested the defendant received a telephone call.  SPC 52778 said that he only recalled that the phone rang and had no recollection that the caller display showed the name “Mandy”.   Later two South Asians males and two Chinese males arrived.  SPC 52778 recalled that one of the South Asian males was called Manpreet Singh and that he was dressed similar to the defendant. 

Authorisation

34.Admitted in evidence is that Mr Chiu did not know the defendant; did not authorise the defendant or anyone to enter Flat B3 after he left work on 13 October 2017 and did not give the electronic combination code of the metal gate to the defendant[20]. 

CCTV footage

35.Admitted in evidence is CCTV footage showing the lift lobby outside Flat B (exhibit P5)[21].  The CCTV footage was played at the beginning of the trial and during the evidence of SPC 52778. Admitted in evidence is that the times on the CCTV footage are slow by 30 minutes[22].

36.In summary between 02:24:12 and 2:24:24 (02:54:12 and 2:54:24) the CCTV footage shows two men exiting the lift on the 2nd Floor.  SPC 52778 identifies the second male leaving the lift as the defendant.  SPC 52778 testified that during his observation he did not see the first male.  In cross-examination SPC 52778 was not sure whether the person Manpreet Singh who arrived after the defendant was arrested was the other male seen on the CCTV footage. 

37.The first male is seen opening a door which SPC 52778 identifies as the metal gate of Flat B.  The first male and the defendant then enter inside Flat B. 

38.At 02:27:16 (02:57:16) two males are seen leaving Flat B.  One male leaves by the staircase whereas the other male stands waiting for the lift.   SPC 52778 identifies the defendant by his clothing and build as the male closest to the lift.  

39.In cross-examination SPC 52778 agreed that one man was running and said that the other man was walking at a relatively rapid pace.  SPC 52778 agreed that the man who escaped and was not intercepted by him was the man who was running. 

40.At 02:27:22 (02:57:22) two more males are seen leaving Flat B.  SPC 52778 says that he is the first male and that PC 22394 is the second male.  The CCTV footage next shows the defendant being intercepted by SPC 52778 and PC 22394 and taken back into Flat B. 

Video recorded interview (exhibit P3)

41.Admitted in evidence is a video recorded interview conducted on 14 October 2017[23]. 

42.In summary the defendant told the police that he did not go outside room 3 but was stood near the entrance gate of a game centre at room 206 (see counters 203-232; 245-250); he went to the game centre to play there (see counters 233-238; 251-258); the game centre was open (see counters 239-244) and he knew the password for the metal gate because he goes to the game centre everyday (see counters 259-274).

43.The defendant was asked about the two cards (exhibits P1 and P2).  The defendant disagreed the cards were found in the right front pocket of his trousers (see counters 275-283); and said that the two cards were his (see counters 284-298); the ATM card (exhibit P2) was in his mother’s name and that his mother had given him the card to use quite a long time ago (see counters 299-336); the white card (exhibit P1) was used for playing games in the Knockout game centre in Jordan (see counters 337-364) and that he did not use the two cards to try open the wooden door of Room 3 (see counters 365-369).

44.The defendant did not know what kind of place room 3 was and did not know anyone from room 3 (see counters 370-381) and told the police that he went to the game centre at 3 a.m. because it was open day and night and that before going to the game centre he had been to the Green Villa Guesthouse on Chi Kiang Street in To Kwa Wan (see counters 430-488).

45.The defendant also told the police about his background and where he lived (see counters 382- 429).

46.In reaching my verdict I have considered the content of the video recorded interview in accordance with the decision in R v Sharp[24].

Defence evidence

47.In summary the defendant testified that he came to Hong Kong on 4 October 2010 on a family visa. 

14 October 2017

48.At about 2:30 a.m. together with his friend Manpreet Singh Mandy the defendant went to a game centre on the 2nd floor of the building where he was later arrested. The defendant said that Manpreet Singh Mandy was dressed similar to him in a long sleeve shirt with the sleeves folded up whereas he wore his shirt with “full sleeve”[25].

49.After exiting the lift on the 2nd floor the defendant followed his friend.  After his friend pressed the password for the gate the defendant followed his friend into the premises. 

50.The defendant passed his friend on the corridor and turned right to go to the game centre.  The defendant said that the room number of the game centre was 207. The defendant explained that he told the police in the video recorded interview that the room number was 206 because he was confused and was only sure of the number of the room after he saw the sketch (exhibit P7) in court[26].   

51.The defendant stopped outside room 207 and pressed the doorbell for a long time but nobody opened the door.  The defendant was able to open both the gate and the wooden door which were not locked.  The defendant saw there was nothing inside and that it was dark.  The defendant called out “Mandy” and showed his friend that there was no game centre. 

52.The defendant then closed the wooden door and gate and walked very fast towards the exit.  The friend followed very fast and when the defendant opened the door his friend ran out and left by the staircase.  In answer to the court the defendant said that when walking to the exit he passed his friend who was standing three to four steps from Flat B3[27].

53.At no time did the defendant stop outside Flat B3[28]. The defendant said that after he entered he saw Manpreet Singh stop in the centre of the corridor where Flat B3 was.  The defendant did not pay attention to what Manpreet Singh was doing because he turned right at the end of the corridor to go to the game centre.   

54.The defendant said the two cards (exhibits P1 and P2) were found in his purse which was in the right back pocket of his trousers.

55.After he was arrested the defendant’s telephone rang.  The name on the caller display was “Mandy”.  Shortly after his friend Manpreet Singh Mandy returned to the 2nd floor together with two Chinese males.  Manpreet Singh Mandy was still dressed similar to the defendant.  The police checked their identities.  

56.In re-examination apart from telling the police the room number of the game centre was 206 and that the game centre was open the defendant adopted what he told the police in the video recorded interview as part of his evidence.

Discussion

57.I have carefully considered all the evidence and the submissions of Ms Mohamed and Ms Herbert.

58.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 went to Flat B at 3 a.m. to go to a game centre.

59.The defendant testified that when he went to Flat B he found there was no game centre and left[29] whereas he told the police in the record of interview that the game centre was open for business[30].   

60.In cross-examination the defendant agreed that he had given a different version to the police and said whatever he told the court was correct.  Asked by Ms Mohamed why he gave a different version to the police, the defendant replied he was told by his friend the game centre was open otherwise he would not have gone there. 

61.Asked by the court why he did not tell the police that he found there was no game centre the defendant replied that whatever questions the police asked he answered.  After the court repeated the question the defendant replied that the game centre was closed after being raided by the police.  I do not find the defendant’s replies credible.

62.This was not the only difference between what the defendant told the court and what he told the police in his record of interview.  The defendant told the court the game centre was in room 207 whereas he told the police the room was 206[31].  

63.As summarised earlier the defendant explained that he was confused when he told the police the room number was 206[32].

64.In cross-examination the defendant confirmed that he told the police that he went there everyday[33] and agreed that the number of room 7 was on the door, saying that it was written B7.  When Ms Mohamed put that since he went there everyday he should not have been confused about the room number, the defendant replied that although he went there everyday he did not count how many rooms were there.  I do not find this explanation credible.

65.I do not find credible the defendant’s assertion to the police that he went there everyday.  In answer to the court the defendant said that he had not gone to the game centre for two days prior to his arrest; that he had been going to the game centre for six months; that he went one day and then did not go for four days and that sometimes he went there regularly[34].

66.  I do not agree with Ms Herbert that these differences are minor[35], in particular that the defendant told the police the game centre was open for business whereas he told the court that there was nothing inside and that it was dark.  If there was a game centre and the game centre was open for business the defendant would not need to leave within three minutes of entering Flat B[36].   

67.I am satisfied the defendant’s evidence that he went to Flat B to go to a game centre was entirely contrived in an attempt to give an innocent explanation for going to Flat B at 3 a.m.

68.I reject the defendant’s evidence that he went to Flat B to go to a game centre in room 207 and that he pressed the doorbell and opened and closed both the metal gate and the wooden door of room 207.  I am satisfied no weight is to be attached to the defendant’s denials in the record of interview that he did not go to Flat B3 but went to room 206. 

69.In rejecting the defendant’s evidence I have carefully considered the submission of Ms Herbert that it is possible that because SPC 52778 did not continuously look down the corridor and mainly tried to listen to sounds[37] he may not have seen the defendant go to room 7[38].

70.I have no hesitation in rejecting this submission.  I accept the evidence given by SPC 52778 in cross-examination that he did not hear the sound of someone talking; did not hear someone ringing the doorbell of room 7; did not hear the sound of the metal gate of door 7 being opened and closed and did not hear someone shouting the name “Mandy”. 

71.I have also carefully considered the submissions of Ms Herbert that the male and the defendant clearly knew the passcode indicating that they had been there before or had been told the code by someone; that SPC 52778 did not know if all the doors were locked or unlocked and that SPC 52778 not knowing what business was run from room 7 the prosecution have failed to rule out that a game centre was run out of room 7[39]. The submissions of Ms Herbert do not cause me to doubt the findings I have made. 

72.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.

Identification

73.From the CCTV footage the defendant is seen entering Flat B together with another male.  The defence case is that SPC 52778 has mistaken the defendant for the other male who entered Flat B together with the defendant and who was dressed very similarly to the defendant[40].

74.The prosecution case depending on the correctness of the identification of the defendant by SPC 52778, I direct myself in accordance with the principles established in R v Turnbull[41]. I warn myself of the special need for caution before convicting the defendant in reliance on the evidence of identification. 

75.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[42]. I remind myself even where presence is agreed a full Turnbull direction should be given where a mistaken identification is clearly possible[43]. 

76.In summary SPC 52778 testified that he saw a male from five meters away; the lighting was sufficient and nothing blocked his view.  When the male noticed SPC 52778 the male immediately ran towards the exit.  SPC 52778 chased after the male and stopped the male in the lift lobby.  SPC 52778 identified the male he stopped as the defendant[44].

Lighting

77.In evidence the defendant described the lighting in the corridor as a little dark, saying there was not enough lighting whereas in cross-examination he said the lighting was dark.  In answer to the court the defendant explained by a little dark he meant that there was lighting in the corridor and with reference to photograph 4 said that the light nearest to the door of Flat B3 was on[45]. 

78.I accept the evidence of SPC 52778 that the lighting in the corridor of Flat B was on.  I am satisfied the lighting was sufficient to make an identification.  

Observations

79.In cross-examination SPC 52778 said that he observed the male for thirty to forty seconds; he only saw the face of the male for around one second; he lost sight of the male for about one second when the male turned the corner and he next saw the male in the lift lobby[46].

80.Ms Herbert submits that the CCTV footage showing that there were two males exiting Flat B and that SPC 52778 only ever saw one male, who he lost sight of while chasing him, the court cannot be sure that the correct person was arrested and given the short duration of the observation and that SPC 52778 only saw the face of male for one second it is extremely likely that he mixed up the two males, who were similarly dressed and in error wrote the description of the man he arrested and not the man he saw outside Flat B3[47].

81.In determining whether the male SPC 52778 saw outside Flat B3 and who he chased after and the defendant who he stopped in the lift lobby seconds after the defendant had left Flat B are the same person depends on the accuracy of the description SPC 52778 gave of the male he saw outside Flat B3. 

82.SPC 52778 described the build of the male he saw outside Flat B3 and the clothing the male was wearing, including that the male was wearing a long sleeve shirt and a silver bangle on his right hand[48].

83.In cross-examination when asked if the shirt sleeves of the male were rolled up in order for him to be able to see the silver bangle SPC 52778 replied that to his recollection the sleeves were rolled up.  SPC 52778 demonstrated the sleeves rolled about half way up the forearm.  In re-examination when asked what was the condition of the sleeves when he intercepted the defendant SPC 52778 replied that they were folded up but having viewed the CCTV footage said they were not folded up as high as he had thought. 

84.From the CCTV footage the clothing of the defendant and the other male can be seen.

85.In cross-examination SPC 52778 said that from the CCTV footage the defendant was obviously taller and a bit fatter than the other male; agreed that the clothing was similar and that the only difference was one had a long sleeve shirt and one had the sleeves of the shirt rolled up above the elbow but disagreed that the sleeves of the male he saw outside Flat B3 were rolled up above the elbow. 

86.The CCTV footage shows that when the other male exits the lift and enters Flat B he appears to be wearing a short sleeve T-shirt and not a long sleeve shirt folded up.  When the male exits Flat B he again appears to be wearing a short sleeve T-shirt. The clothing worn by the male is best viewed by pausing the footage, in particular just after the male and the defendant leave Flat B at 2:27:16. 

87.When the court drew this to the attention of the defendant and asked if he had anything to say the defendant replied that when he bought the shirts together they were full sleeve shirts[49]. The defendant was given the opportunity to view the CCTV footage before answering but replied without viewing the footage.

88.The CCTV footage shows that when the defendant exits the lift and enters Flat B he appears to be wearing a long sleeve shirt with the cuffs folded back.  When the defendant leaves Flat B the cuffs of his shirt again appear to be folded back. Again the clothing worn by the defendant is best viewed by pausing the footage.

89.When the court drew this to the attention of the defendant and asked if he had anything to say the defendant replied that he did not remember and that normally he wore his shirt folded a little bit and demonstrated the cuffs being folded back[50]. The defendant was again given the opportunity to view the CCTV footage before answering but replied without viewing the footage.   

90.Although the clothing of the defendant and the other male was similar there was a clear difference in the shirt sleeves, whether the other male’s shirt is described as a T-shirt or a long sleeve shirt with the sleeves rolled up above the elbow/just below the shoulders. 

91.I accept the evidence of SPC 52778 in cross-examination that the male he saw outside Flat B3 did not have his sleeves rolled up above the elbow.  Having carefully considered all the identification evidence, I am satisfied so I am sure the defendant was the male that SPC 52778 had seen outside Flat B3 and who he chased to the exit of Flat B.  SPC 52778 was able to observe the build and clothing of the male in good lighting, from only five meters away for thirty to forty seconds at which time his view was not blocked.  

Odd coincidences

92.SPC 52778 having only seen the face of the male for around one second; having lost sight of the male during the chase, which from the CCTV footage was for about six seconds, and not seeing the other male who entered Flat B together with the defendant and who was dressed similar to the defendant, I have looked for evidence which goes to support the correctness of the identification. 

93.The court in Turnbull said that odd coincidences can, if unexplained, be supporting evidence[51].

94.Admitted in evidence is that a white card (exhibit P1) and a slightly damaged Bank of East Asia card (exhibit P2) were found on a search of the defendant[52].  The Bank of East Asia card is a black coloured card. 

95.I accept the evidence of SPC 52778 that he found the two cards in the right front pocket of the defendant’s trousers; that the male he saw outside Flat B3 was holding two cards in his right hand, one black and one white, which the male used to slip inside the gap of the wooden door and at the same time turn the doorknob with his left hand; and that he believed the two cards found on the defendant were the two cards he had seen the male use to slip into the door of Flat B3. 

96.It is an odd coincidence that a white card and a black card were found together in the right front pocket of the defendant’s trousers.  After careful consideration I am satisfied this evidence supports the evidence of SPC 52778 that the defendant was the male he had seen outside Flat B3 and who he chased to the exit of Flat B.  

97.In reaching this finding I have considered that SPC 52778 was unable to find the broken piece of the Bank of East Asia card.  The fact that SPC 52778 could not find the broken piece of the card does not cause me to doubt that the defendant was the male SPC 52778 had seen outside Flat B3 and who he chased to the exit of Flat B.

98.In addition, I am satisfied that the only inference to draw from the fact that the defendant entered Flat B and within three minutes left Flat B was because he was a trespasser and had been seen by SPC 52778. 

99.Having carefully considered all the evidence and the circumstances of the identification I find I am satisfied so I am sure that the prosecution have proved beyond reasonable doubt that the male SPC 52778 saw outside Flat B3 was the defendant.   

100.In reaching this finding I have carefully considered the submissions of Ms Herbert, including that the CCTV footage showed that the other male ran out of Flat B and that the defendant walked to the lift and was not running as described by SPC 52778; that walking to the lift was not consistent with someone being chased; and that there was no fingerprint evidence[53].  Nothing said by Ms Herbert causes me to doubt that the male SPC 52778 saw outside Flat B3 was the defendant.

Attempt

101.SPC 52778 testified that the male he saw outside Flat B3 was holding two cards in his right hand, one black and one white which he used to slip inside the gap of the wooden door and at the same time turned the doorknob with his left hand[54]. 

102.Ms Herbert submits that it is somewhat improbable, if not impossible that the male could have swiped one card while holding the other card in the same hand[55]. 

103.I have no hesitation in rejecting this submission.  I accept the evidence of SPC 52778 given in cross-examination that he did not know how difficult that was but that was what happened[56].

104.I accept the evidence of SPC 52778 that the male he saw outside Flat B3 was holding two cards in his right hand which he used to try open the door of Flat B3.  I am satisfied so I am sure that by using the two cards to slip inside the gap of the wooden door and at the same time turn the doorknob the actions of the defendant were more than merely preparatory and amount to an attempted burglary of Flat B3. 

105.In reaching my verdict I have carefully considered everything said on behalf of the defendant by Ms Herbert, both individually and collectively.  Nothing said by Ms Herbert causes me to doubt the findings I have made.

106.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 burglary.