HKSAR v. Villarreal Juan Antonio Martin

DCCC 207/2020

[2020] HKDC 782

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 207 OF 2020

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REASONS FOR VERDICT

1.The defendant pleads not guilty to one charge of burglary, contrary to section 11(1) (b) and (4) of the Theft Ordinance[1].

2.The particulars of the charge are:

“Villarreal Juan Antonio Martin, on the 3rd day of January, 2020, in Hong Kong, having entered as a trespasser part of a building known as the staircase between 7th Floor and 8th Floor, No. 15 Morrison Hill Road, Wan Chai, stole therein one vinyl record player.”

Introduction

3.The building situated at Nos. 15-17 Morrison Hill Road has eight floors and a rooftop.  Each floor had two flats and two staircases, one for No. 15 Morrison Hill Road and one for No. 17 Morrison Hill Road. 

4.Mr Lam lived in both flats on the 8th Floor.  On 28 December 2019 Mr Lam placed some of his belongings on the staircases outside his home including the vinyl record player.  Mr Lam placed the vinyl record player on staircase No. 15.  Mr Lam intended to take his belongings back later.

Prosecution case

5.The prosecution case in summary is that at around 4:15 a.m. on 3 January this year PC 10116 saw the defendant enter the building.  At around 4:23 a.m. PC 10116 saw the defendant exit the building carrying a brown bag.  PC 10116 therefore followed the defendant and after a short while intercepted the defendant.  PC 10116 found Mr Lam’s vinyl record player inside the brown bag. 

6.The prosecution relies on oral statements attributed to the defendant on interception and two records of interview.  The records of interview are mixed statements, the defendant admitting he entered the building and took away the vinyl record player and explaining that he took the vinyl record player because he thought it was rubbish.   

Defence case

7.The defence case as put in cross-examination of PC 10116 and contained in the records of interview is that the defendant entered the building to urinate and that he took the vinyl record player because he thought it was rubbish.

Defendant acting in person

8.The defendant is Spanish and has conducted his defence in person.  At the beginning of the proceedings on the first day of the trial the defendant said he did not require a Spanish interpreter and elected to proceed in English. 

9.Pursuant to Rule 8 of the Legal Aid in Criminal Cases Rules[2], the Director of Legal Aid refused the defendant’s application for Legal Aid because the defendant did not accept the offer of legal aid made on 12 June 2020[3].  The defendant says he was unable to pay the contribution.

10.On the first day of trial I asked the defendant whether he wished to be legally represented. The defendant said he wished to proceed unrepresented.   

11.Before asking the defendant to enter his plea to the charge I ensured all papers had been served on the defendant and that he had them with him in court.  I explained to the defendant the elements of the offence and the trial procedure.  As the trial proceeded I explained each stage of the proceedings to the defendant including how to cross-examine witnesses; submission of no case to answer; the right to give evidence and call witnesses and how to make a final submission.

Evidence

12.The prosecution called four witnesses: Mr Lam (PW1); PC 10116 (PW2); WDPC 24320 (PW3), who conducted the records of interview and Ms Sin Kam Ling (PW4), the English interpreter in the records of interview. 

13.The defendant only cross-examined Mr Lam and PC 10116.  I explained admissibility of oral and written statements to the defendant.  The defendant made no allegations of violence, threats, promises, inducements or other impropriety on the part of the police officers[4]. The defendant did however challenge the accuracy of the questions and answers upon interception.

14.The defendant elected not to give evidence or call witnesses.   No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt. 

15.Ms Alva informed the court the defendant had a clear record.  I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[5].

16.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 before I can convict.  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.  

17.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.  

Consideration of the evidence

18.I have carefully considered all the evidence and the final submission of the defendant.

19.The main issue in the case is whether the defendant believed the vinyl record player was abandoned.  I will therefore first briefly summarise the evidence relating to the other elements of the offence. 

Entered as a trespasser part of a building - the staircase between the 7th Floor and 8th Floor, No.15 Morrison Hill Road

The building

20.The building situated at Nos. 15-17 Morrison Hill Road has eight floors and a rooftop (“the building”).  The ground floor and the first floor are commercial premises whereas the 2nd floor to the 8th floor are domestic premises.

21.Each floor had two flats and two staircases, one for No. 15 Morrison Hill Road and one for No. 17 Morrison Hill Road.  Mr Lam, who lived in both flats on the 8th floor and was the chairman of the Owner’s Corporation of the building, gave evidence of the layout of the building. 

22.The staircase for No. 15 leads to the rear of the building whereas the staircase for No. 17 leads to the front of the building.  The main entrance is on Morrison Hill Road as shown in photographs 8 and 9, exhibit P15[6]. 

23.A staircase leads from the main entrance to a metal gate between the 1st floor and the 2nd floor.  The metal gate is secured by a passcode which is only given to the owners and occupants of the building.  CCTV cameras are installed at the top of the staircase and by the metal gate. 

24.After the metal gate is the staircase for No. 17.  There is a connecting fire door on each floor linking staircase No. 17 with staircase No. 15.  Mr Lam drew a floor plan showing the flats and the staircases (exhibit P21). 

25.Mr Lam said he placed the vinyl record player (exhibit P2) between the 7th and 8th floors on staircase No. 15.

Entered as a trespasser

26.In summary PC 10116 testified that at 4:15 a.m. on 3 January this year he saw the defendant looking around at Sharp Street West.  From a distance of about 10 meters PC 10116 observed the defendant turn right into Morrison Hill Road and walk to the 7-11 convenience store on Tin Lok Lane.  The defendant then turned around and walked back to the junction of Morrison Hill Road and Sharp Street West where PC 10116 saw the defendant looking at the roller shutters of the buildings. 

27.After observing the defendant for about three minutes PC 10116 saw the defendant enter the building at Nos. 15-17 Morrison Hill Road.   At 4:23 a.m. PC 10116 saw the defendant leaving the building carrying a brown bag.  PC 10116 followed the defendant and intercepted him at Bowrington Road.  PC 10116 found inside the brown bag (exhibit P1) the vinyl record player (exhibit P2). 

CCTV footage

28.Mr Lam operated the CCTV system.  No one else had access to the CCTV system and no one interfered with the system. Mr Lam described the CCTV system as having six cameras.  Mr Lam made a copy for the police of camera 1 and camera 6 which footage was played in court[7].

29.Camera 1 shows the staircase leading from the main entrance to the metal gate and camera 6 shows the metal gate.  Camera 1 between 04:19:16 and 04:19:24 shows a person entering the building and walking up the stairs towards the metal gate.  Camera 6 between 04:19:43 and 04:20:06 shows the same person entering the metal gate and walking upstairs.  Camera 6 between 04:26:29 and 04:26:42 shows the same person walking down the staircase and exiting the metal gate.  Camera 1 between 04:26:53 and 04:26:57 shows the same person leaving the building.

30.PC 10116 identified the defendant as the person seen on the CCTV footage entering and leaving the building.  Camera 6 shows the clothing of the person is the same as the clothing worn by the defendant as seen in photograph 35[8]. 

31.In the records of interview the defendant told the police that he lived in Paterson Street in Causeway Bay[9].

32.I am satisfied on this evidence that the defendant entered as a trespasser part of a building, namely the staircase between the 7th Floor and 8th Floor, No.15 Morrison Hill Road.

Theft of the vinyl record player (exhibit P2)

33.Mr Lam had purchased the vinyl record player in Sheung Wan in 2017 for a few hundred dollars.  The vinyl record player was second hand and was quite dirty.  Mr Lam regarded the vinyl record player as an antique because it was not produced anymore.  Mr Lam decided to buy the vinyl record player because he thought the vinyl record player was quite valuable, worth about $1500-$2000.

34.Mr Lam testified that on 28 December 2019 he started clearing out miscellaneous items in his flat and tidying up his flat.  Mr Lam moved out items which were dirty and not quite tidy and put them on the staircases.   The items shown in photographs 11-14, exhibit P15 were placed on the staircase of No. 17 and the items shown in photographs 15, 17 and 18 were placed on the staircase of No. 15.

35.When asked what he intended to do after placing the items outside his home, Mr Lam replied that he would leave them there for some time and that when he had the time he would put some back inside his home and some on the rooftop.

36.Mr Lam testified that he placed the vinyl record player on the staircase underneath the green case which contained a guzheng.  The green case is shown in photographs 17 and 18, exhibit P15[10]. Mr Lam said he had never moved the vinyl record player.  In cross-examination Mr Lam disagreed that the vinyl record player was not placed underneath the green case. 

37.Mr Lam explained that to remove the vinyl record player the green case had to be taken down or something had to support the green case to stop the green case falling down whereby you could then slide out the vinyl record player from underneath the green case.    

38.Mr Lam had never seen the brown bag (exhibit P1) in which the defendant was carrying the vinyl record player when he was intercepted by PC 10116.

Oral statements

39.PC 10116 testified that after intercepting the defendant he conducted a body search.  The defendant was wearing a black waist bag across his chest (exhibit P3).  Inside the waist bag PC 10116 found a damaged combination lock (exhibit P4), a black torch (exhibit P5), a blue screwdriver (exhibit P6), a pair of gloves (exhibit P7), a silver manhole cover lifting key (exhibit P8) and a re-sealable plastic bag containing items of jewellery (exhibits P9-P14). 

40.After conducting the body search PC 10116 questioned the defendant in English:

Q. Where you go before?

A. I find my friend.

Q. Where your friend live?

A. Morrison Hill Road.

Q. Where you live?

A. Haven Building

41.PC 10116 then pointed to the vinyl record player and asked:

Q. Where you take this?

A. Take from my friend.

Q. I saw you before you haven’t taken this box.

A. No reply

42.PC 10116 then asked the defendant about the content of the waist bag. PC 10116 asked “Where you take this?” to which the defendant did not reply.  When asked by the court what “this” referred to, whether the waist bag, all the contents or just one item, PC 10116 was unable to say and explained that he asked about each item individually but had forgotten the sequence.  Asked again “Where you take this?” the defendant replied “Bought from Causeway Bay”.  PC 10116 did not say which item this answer referred to.  

43.PC 10116 took the defendant to the building where the defendant said he did not know the code to enter the metal gate.  The defendant was then arrested for loitering. 

Records of interview

44.In the records of interview the defendant told the police, inter alia, that he was on his way home when he went into the building to urinate and that when he was walking up the stairs he saw on the ground of the staircase, among rubbish like waste paper and packaging, an old style disc player which he picked up because he thought it was a piece of rubbish and had been thrown away[11].   

Discussion

45.The defendant’s claim in the records of interview that he thought the vinyl record player was rubbish and had been thrown away is different to what he told PC 10116 that he took the vinyl record player from his friend who lived in Morrison Hill Road.

46.In cross-examination the defendant challenged the accuracy of this conversation.  PC 10116 said he could not remember the defendant telling him he was going home and disagreed that the defendant told him that the vinyl record player had been thrown away and that he had picked it up from the staircase of the building and that the tools were used for fixing things.

47.The answers attributed to the defendant were not made under caution.  In answer to the court PC 10116 said he never cautioned the defendant and explained that based on section 54 of the Police Force Ordinance[12] he had the right to ask a series of questions.  PC 10116 said because he was not fluent in English he did not caution the defendant[13].

48.Taking into account that when PC 10116 saw the defendant enter the building it was 4 a.m. and the defendant was not carrying anything, I am satisfied PC 10116 on seeing the defendant leave the building carrying a bag was entitled to intercept the defendant and ask questions without first cautioning the defendant (see for example HKSAR v Fung Wing Ching[14]).

49.What concerns me is that the defendant was not shown a record of this conversation to see whether he agreed that was what he said.  In answer to the court PC 10116 said he did not make a record of the conversation in his notebook to show to the defendant[15]. The records of interview do not recite the conversation.

50.The courts have said that judges and magistrates will need to scrutinise very hard any reliance by the prosecution on alleged oral admissions which are not recorded in writing and shown to the suspect for his acknowledgement (see R v Chan Chi Fai & another[16], HKSAR v Lau Ho Yin[17] and HKSAR v Chan Yuk Ling[18]). 

51.Heeding the caution of the Court of Appeal and taking into account that the defendant was not cautioned; PC 10116 was not fluent in English; PC 10116 did not record the conversation in his notebook and the conversation was not recited in the records of interview, I am satisfied in the circumstances that it would be unfair to rely on this evidence.  In this regard I also note that in paragraph 5 of the prosecution opening statement Ms Alva’s recital of the conversation is different, namely that the defendant said he had taken the vinyl record player from home. 

Abandoned property

52.Mr Lam had only placed the vinyl record player on the staircase temporarily and did not give permission to anyone to take away the vinyl record player.

53.If the defendant however had a genuine belief that the vinyl record player had been abandoned, whether that belief was reasonable or unreasonable, he would not be acting dishonestly.  An unreasonable belief may be an honest one although a court may infer a lack of honest belief from the unreasonableness of that belief (see R v Small [19]and R v Wood[20]).

54.The issue for the court therefore is whether the defendant did have a genuine belief or might have had a genuine belief that the vinyl record player was rubbish and had been thrown away.

55.Photographs 20, 21 and 22 (exhibit P15), which were taken in the police station, give the appearance that the vinyl record player is in good condition.  A look at the actual exhibit shows otherwise.  The vinyl record player is very old, dirty and parts are cracked and broken.  

56.Notwithstanding the suspicious circumstances in which the defendant was arrested, having closely inspected the vinyl record player I find that I cannot reject that the defendant had a genuine belief or might have had a genuine belief that the vinyl record player was rubbish and had been thrown away. 

57.In reaching this finding I have considered the location where the vinyl record player was placed by Mr Lam.  This was challenged in cross-examination by the defendant.  The defendant told the police in the record of interviews that the vinyl record player was on the ground[21].

58.Placing the vinyl record player under the green case shown in photographs 17 and 18 does seem an unlikely place to put the vinyl record player. 

59.Even if that was where the defendant found the vinyl record player this does not cause me to doubt the finding that the defendant had a genuine belief or might have had a genuine belief that the vinyl record player was rubbish and had been thrown away.  The other items shown in photographs 17 and 18 also largely appear to be old and dirty.  I note in the record of interview the defendant said the vinyl record player was put among rubbish like waste paper and packaging materials[22].

60.The benefit of the doubt is given to the defendant and he is acquitted of the charge.