HKSAR v. Wu Paul Javi Calma

DCCC 110/2020

[2020] HKDC 762

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 110 OF 2020

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REASONS FOR VERDICT

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1.D1 is charged with one count of burglary. It is alleged that D1 together with D2, having entered as trespassers part of a building known as 7^th Floor, No 15 Temple Street, Yau Ma Tei, Kowloon (“the Flat”), stole therein 10 pieces of ink-painting, 3 books, one handbag, some jade ornaments and 4 coins.

2.D1 pleads not guilty but D2 pleaded guilty.  Here are the reasons for verdict concerning D1.

BACKGROUND

3.The prosecution says, and  D1 agrees, that D1 entered the Flat with D2, which is a domestic premises, at about 12 noon on 1 November 2019.  The Flat belongs to PW3 Chan Wai Yu, who inherited from his father, together with his belongings.  She did not live in the Flat but the Flat was used to keep the properties of his late father.  She visited the Flat once every few months.  The last time she paid a visit was half a year ago from 1 November 2019.

4.According to PW3, the Flat was secured by a wooden door with a lock and a metal gate.  The metal gate was secured by a metal chain and a combo lock.  She was informed by the police about a burglary occurred on November 2019.  She visited the Flat and found that the lock on the wooden door was broken and the combo lock was unlocked after the offence.

PROSECUTION CASE

5.On 1 November 2019 at about 12 noon, PW1 Ms So Choi On, who lived in 8^th Tenement floor, 17 Temple Street, across the Flat.  She heard a loud bang.  Then she watched from her door’s peephole and found two males, later known to be D1 and D2, went quickly up the rooftop which is a floor up.  Then PW1 saw them opened the door of the Flat and went in.  She immediately contacted her husband to call the police.

6.Then PW1 placed her mobile phone camera against the peephole and monitored the situation through the screen of her phone.  She had taken three video footages of what happened during the incident:

(i) The first video was taken at 11:58:14 am. It showed the front view of the Flat with the wooden door and the metal gate closed. The clip lasted for 3 minutes 41 seconds. According to PW1, the film was taken after the two males entered the Flat. Since nothing was going on, PW1 stopped filming.

(ii) The second video was taken at 12:03:25 pm. It lasted for 25 seconds. It captured how the two males subsequently left the Flat. D1 emerged first holding a Chinese ink painting and he walked down the staircase. D2 emerged a short while later. He was carrying a red, white and black nylon bag. After D1 had disappeared by this stage, D2 used a white cloth to wipe the metal gate. First, D2 made a few steps up the rooftop and then he headed down the staircase.

(iii) The third video was taken at 12:05:27 pm. D2 was seen running up the staircase towards the rooftop with the police in hot pursuit. D2 was no longer carrying the nylon bag he was holding when he left the Flat.

7.The police arrived upon receiving a report.  PW2 PC48933 intercepted D1 at street level in the vicinity of 15 Temple Street.

8.According to the Admitted Facts, it is admitted, inter alia, that:

(i) PW2 declared arrest of D1 and administered a caution upon him for the offence of burglary. After caution, D1 said “It was Alex who asked me to help him bring the nylon bag and paintings downstairs. I have no idea of what happened.”

(ii) The nylon bag contained 9 scrolls of paintings, three books and a Chinese ink painting (P8-11).

(iii) A voluntary VIR was taken from D1 on 1 November 2019.

(iv) The left little fingerprint of D1 was found on the main gate of the Flat.

9.In the VRI, D1 stated that it was Alex (D2) who asked him for help to move the stuff downstairs from 7^th floor of a tenement building at 15 Temple Street.  D1 followed Alex to go upstairs together.  Alex walked first.  Then Alex took out a red and white and blue bag and a painting from that unit and gave it to D1.  He did not know how Alex entered the unit as he came to the unit after Alex.  He was given one to two hundred dollars for helping.

DEFENCE CASE

10.D1 elected to give evidence.  He is a Hong Kong resident.  After he finished his secondary education in Hong Kong, he studied Architecture in a university in the Philippines.  He came back to Hong Kong in 2015 and his job involves renovation project, earning about $30,000 per month.

11.D1 came to know D1 (Alex) two months before he was arrested.  D2 said he works in the construction field.  D1 acquainted with D2 because he thought that D2 would assist in his job.

12.On 1 November 2019, D1 met D2 in an amusement game centre.  D2 asked D1 if he could help him to move something from the building for his boss.  It would take about 5 minutes and D2 would give $100 to $200 for his time.

13.Then they went to the building at 15 Temple Street.  When they got to the outside of the Flat, D2 opened the iron gate and then closed it.  This act caused a bang sound.  D2 suggested going up to the rooftop to look for his friend.  However, his friend was not there.  Then they proceeded back to the Flat on 7^th Floor.  He just opened the wooden door and pushed the iron gate.

14.When they got into the Flat, D2 went into the rooms.  D1 stood in the living room waiting for D2.  After 2-3 minutes, D2 passed him a framed Chinese painting (P8) and D2 took a nylon bag with something inside.

15.D1 left the Flat first and D2 followed.  He did not notice D2 wiping the door with a cloth.  D2 then caught up with him at the 4/F.  He handed the nylon bag to D1.

16.D1 got arrested by the police when he reached the ground floor.

ISSUE

17.There is no dispute that D1 had entered the Flat with D2.  The only issue in the case is whether the prosecution can prove that D1 had stolen the particularized properties or he just helped D2 to move the stuffs.

EVALUATIONS & FINDINGS

18.I have reminded myself of the prosecution’s duty to prove the elements of each charge against the defendant beyond reasonable doubt.  D1 has nothing to prove.  Even if I reject his evidence, the prosecution still has that burden to prove all elements of the offences to the prerequisite standard.

19.D1 elected to give evidence and I have warned myself he has a clear record.  I direct myself as to good character, both as to credibility and propensity as well as the likelihood of a man in his position committing the offences charged in accordance with the direction in HKSAR v Tang Siu Man 1997-98 1 HKCFAR 107.

20.I find PW1 to PW3 to be reliable and honest witnesses.  In fact, Mr Mcnamara did not challenge their evidence.

21.I have opportunity to see and hear D1’s testimony.  In his evidence, he tried to recall the particulars and answered the questions.  He never dodged any questions during cross-examination.  His evidence is clear and unambiguous. I accept his evidence to be the truth.  I attach full weight of what he said under caution.  The following is my assessment.

22.The first and foremost reason is from the second video clip.  It was seen that D1 walked out of the Flat in normal manner and pace.  It is inconsistent with the fact that he had committed a crime and flee the crime scene.  It was also noticed that only after D1 had left, then D2 used a white cloth to wipe the iron gate. Had there been evidence that D1 had knowledge that D2 broke into the Flat or wipe the gate with a cloth, the court can then be sure that D1 committed the burglary with D2. Now the court cannot draw an irresistible inference that D1 was acting in concert to break into the Flat.

23.Secondly, I find that there is no reason for me not to put full weight on the defendant’s mixed statement.  When he was first confronted by PW2 on the ground floor, he immediately blamed D2.  In his later video interview, he professed his innocence and explained how D2 had got him involved in what he thought was an innocent undertaking.  In his evidence in court he maintained the same stance.

24.Thirdly, Prosecution submitted that inference can be drawn the big bang sound which alerted PW1 was resulted from the fact that either one or both D1 and D2 were involved in a forcible entry.  However, PW1 only went to see the peephole after she heard the bang sound.  She could not have known how the noise of big bang came about. I cannot rule out the possibility as said by D1 that the heavy iron door was opened and shut when D1 and D2 first arrived there before they went up to the rooftop.  And if that is so, the court cannot draw an adverse inference against D1 from any noise there may have been.

25.Fourthly, PW3 the owner of the Flat stated that she visited the Flat about half a year ago before the burglary did happen.  So there was no evidence as to whether that the combo lock and the wooden door lock was operative on the date of the offence.  If it in fact had been operative about 6 months previously, there is no evidence regarding anything that may have happened to it in between.

26.Last but not the least, D1 impressed me as a well-educated and well-spoken young man who has never been in any trouble in his life.  He had a good business and was earning a steady income.  It is inconceivable that such a character would get involved in a burglary where the rewards were essentially worthless bits and pieces.

CONCLUSION

27.The background between the two men makes me think it is possible D1 himself believed he was only helping D2 to move the property for a reward.

28.Therefore, I am not convinced that prosecution can prove beyond reasonable doubt that D1 is a knowing party of D2’s plan to burgle the Flat.

29.The prosecution has a burden of proof and it must be that it proves beyond reasonable doubt all the elements of burglary. I find the prosecution here has failed to reach that standard, and the benefit of doubt goes to D1.

30.D1 is acquitted of this charge.