HKSAR v. Deepak Kumar

DCCC 80/2020

[2021] HKDC 231

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 80 OF 2020

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Reasons for Verdict

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1.Mr Kumar faces a single charge of attempted burglary at a premises known as the “5019 Premium Factory Japan” at No 46 Graham Street in Central. The allegation is that he committed this burglary together with the 2nd defendant, Mr Sidhu, the date being 13 November 2019.

2.The facts that the prosecution case rely on should be considered.  The 5019 Premium Factory Japan is a premises at Graham Street with a main entrance and a glass rear door set inside what appears to be an indoor and outdoor dining area.

3.We heard evidence from the first prosecution witness that he had been told that the rear door of the premises had been locked on the evening of 12 November 2019.

4.Prosecution case as opened relied on the evidence of PW2, who resided in a building nearby and had a view over the rear courtyard area.  Based the prosecution case as advanced in their opening was that she observed what would have been the 1st and 2nd defendants wandering in a sitting-out area at Graham Street and then climbing over the wall into the outdoor dining area and then going to the rear door using a tool to knock on the door and then exiting the outdoor area.  The two defendants, including the 1st defendant, were later said to have been arrested by PW3 and a rucksack seized which contained items that could be used in a burglary.

5.Now, the evidence that I heard largely came from the second prosecution witness.  This witness confirmed that at around 2 o’clock in the morning, 2.05 am, on 13 November 2019, she went to the washroom in her premises.  The window was open and she said she saw two people looking out from the park, two people - one was on the ground - then she said the first one climbed the high wall into the restaurant.  “It was strange,” she said.  “The restaurant was closed.  I thought they wanted to answer a call of nature.” That is because there is a toilet in that area.  She said, “It drew my attention.  It was strange.”  Then she said, “After climbing into the restaurant, walked to the backdoor and bumped the door.”  Then she said, “It seems they were bumping the door.  I saw after that he knocked.  He climbed out.  After he climbed back out, there was another behind the other one who was looking at the high wall.  He didn’t climb up.  The two were sitting in the park.”

6.Now, that is my note of the evidence.  You can see from that it is somewhat disjointed.

7.Later on, she gave further evidence about that. She said she reported the matter to the police.  She saw the two men intercepted.  Later on she said, in answer to questions by the prosecution, she said, “They climbed over the wall.  They went to the backdoor.  They walked to the position of the backdoor.  They jumped down off the roof.”

8.However, in cross-examination, she returned to the issue of the separation of these two men again.  She said, “The first one climbed over, the one below waited.  He stayed and had a cigarette.”

9.I note when going through PW2’s evidence that she was what I call a truculent witness.  She was unwilling to answer questions put to her by the defence counsel about her viewing location as she feared she might be a victim of reprisals.  She was difficult and uncooperative and aggressive at times.

10.The other evidence in the case came from PW3. He was the arresting officer of the 1st defendant.  He said he came to the Graham Street sitting-out area at about 2.15 am on 13 November.  He said, “I went to a park at Graham Street to handle a case.  I saw two South East Asian males sitting in the park.  I made enquiries.  They did not speak.  One wore a grey rucksack.  The one I enquired of I was certain had a rucksack.”  He said he investigated Deepak Kumar, checked his ID documents and found he had a Recognizance. The defendant did not reply when he was asked what he was doing there.  He searched the rucksack. 

11.The contents of the rucksack can be seen from the photographs that have been produced.  In summary, they are items which could be used in the course of a burglary, breaking into the premises and such like.

12.The defendant gave evidence.  His evidence can be simply stated.  He said he had been drinking that evening.  He resided in Kowloon and he had come into Central in order to go drinking that evening.  He had met a Filipino woman, talked to her, then went on to 7-Eleven, bought drink there.  He eventually ended up in the park and decided to rest in the park.  He said he was drunk.  He sat on a bench in the park.  There was a man opposite him.  The 2nd defendant was one of those men.  The 2nd defendant was wearing a rucksack.  Eventually, the police arrived.  Mr Kumar said he was pushed to the ground, handcuffed.  The police searched around with a torch.  They looked in the flower pots, found a bag, showed it to him and asked if it was his bag.  He said no.  That would be the grey rucksack.  They also showed him a long iron rod.  He said it was not his.  They then took him off to a police vehicle.  The purpose of the defendant going to Central from his home was that he was celebrating the marriage of a relative.

13.That is a brief summary of the evidence I heard.  The question is how is this applicable and what findings should I make in respect of this evidence.

14.As far as the charge this defendant faces on attempted burglary is concerned, the prosecution’s evidence on that charge relies entirely upon the evidence of PW2. 

15.I have noted some of what I call the material and internal inconsistencies in her evidence. 

16.What was never attempted in her evidence, and perhaps could not have been attempted, given her attitude, was to fix in the timeline of the narrative, the point at which she says the two men were involved, because she gave conflicting evidence about this.  She gave a description of the men being separated.  One man, she said, did not go into the premises.  Yet, later in her evidence, she said he did.  Her evidence is contradictory.  It may well be that a narrative can be established within it, that the two men went into the premises and then pushed on the door, but another narrative is equally capable of being discerned from her evidence. 

17.In order to convict the 1st defendant on this charge, I would need to be sure beyond a reasonable doubt that I can rely on her evidence.  With it being internally inconsistent, that simply cannot be achieved and I shall make my conclusions as to what that means on the 1st charge after I have completed my assessment of the evidence.

18.The 1st defendant did give evidence on this matter.  Of course he said he had never entered the rear area.  I make it clear now that I did not accept the defendant’s evidence on any aspect of what he told me about that evening and I thought he had given me a clearly made-up story of going into Central from his home in Sham Shui Po.  I found it unconvincing and rejected it.  I rejected, in fact, the 1st defendant’s evidence in its entirety.

19.I also note that I accepted the 3rd prosecution witness’ evidence - that is the police officer’s evidence - about the defendant being in possession of the rucksack at the time when he was enquired of by PW3.  It is clear from the items inside the rucksack, which can be seen from the exhibit list and also from the photographs, that these are items that could and would be used in the course of a burglary.  There are clippers, crowbars, gloves, a tool which appears would assist entry into a premises.  The defendant’s explanations insofar as the ones given in his evidence, I rejected entirely.

20.So my conclusions on the charge faced are as follows. 

21.I find that I cannot on the evidence of PW2 reach any conclusion as to what the 1st defendant’s involvement was in the attempted burglary that took place that evening.  So the 1st defendant will, by that conclusion, have to be acquitted of that charge.

22.I do however, find that the elements of the charge of going equipped for stealing are proved in respect of the 1st defendant, that he was not in his place of abode and had with him an article for use in the course or in connection with a burglary.  I find that that is proved on the evidence of the 3rd prosecution witness beyond a reasonable doubt.  That charge naturally is an alternative verdict that I can bring in on the charge under section 11(1)(a) of the Theft Ordinance and I do so. 

23.So the 1st defendant will be convicted of going equipped for stealing on that evidence.