HKSAR v. Tse Chun Wah and Another

DCCC 465/2021

[2022] HKDC 285

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 465 OF 2021

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Reasons for Verdict

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1.The 1^st and 2^nd defendant are jointly charged with burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Both are accused of entering as trespassers a shop on the ground floor of 17A Luen On Street, Fanling, New Territories, on 11 January 2021, and stealing $102.

The prosecution’s case

2.The prosecution’s case is that the police had a tip-off or information that a shop in this area in Fanling would be burgled on 11 January 2021.  They then mounted an anti-burglary operation and laid ambush in the vicinity of Luen Wo Market.  This market comprises of several streets. A team of police officers scattered themselves around this area.

3.At about 2.54 am, the defendants were seen approaching this particular fruit and vegetable shop at No. 17A Luen On Street.  They were put under observation and were seen lifting up the roller shutter of the shop without any difficulty.  They entered the shop and pulled down the shutter behind them.  They were in the shop for about 5 minutes before they came out. 

4.The 1^st defendant was seen holding a long object which he dropped by some Styrofoam boxes piled up outside the shop.  As they began to walk away, the anti-burglary operation turned overt, and both were intercepted on the carriageway as they appeared to cross the road.

5.The 1^st defendant was wearing gloves, a cap and a face mask.  The 2^nd defendant was wearing gloves, a cap, a face mask and sunglasses.  They were separated and upon a search, a bag of coins amounting to $102 was found on the 1^st defendant. 2 pairs of gloves were found on the 2^nd defendant.  A crowbar was found between the Styrofoam boxes where the 1^st defendant was seen dropping a similar object.

6.The 1^st defendant was arrested and cautioned at the scene.  He said he had burgled the shop with the 2^nd defendant because they had no money for Chinese New Year.  This verbal admission was subsequently post-recorded in the arresting officer’s notebook, PW3. 

7.The same officer then conducted a video-recorded interview with the assistance of PW2, the exhibits officer.  These admissions, as well as the 2^nd defendant’s video-recorded interview, were challenged and dealt with as a special issue in the alternative procedure.

8.In that video-recorded interview, which I found to have been made voluntarily, the 1^st defendant admitted that he and the 2^nd defendant took a taxi from Mong Kok to the shop in Fanling. Because the roller shutter of that particular fruit and vegetable shop was not secure or locked, they lifted it and entered the shop.  He had brought a crowbar with him and prised open one of the lockers inside the shop.  He found and stole a bag of coins.  He then placed the crowbar the police later found outside the shop between Styrofoam boxes just before he was intercepted by the police. 

9.The 2^nd defendant was also interviewed with the assistance of a Nepalese interpreter.  In his video-recorded interview, he made admissions that were similar to those made by the 1^st defendant; in fact, he gave more details.  Although, I found it was an interview conducted voluntarily, I exercised my discretion to exclude it.  I will refer to those admissions and their voluntariness in due course.

10.A shop supervisor later gave a witness statement that he worked at the fruit and vegetable shop and confirmed that 2 locked compartments of a locker cabinet inside the shop had been prised open.  A bag of coins totalling $102 which was locked in one of those compartments had been stolen.  In another locker that had not been prised open was a sum of $7,000 petty cash which was the daily operating float; it was not discovered by the burglars.  It was confirmed that the total loss to the fruit and vegetable shop was $102.  His witness statement was not challenged and read into evidence, P12.  It was not in dispute that the fruit and vegetable shop was burgled in the early hours of that same morning.

11.A Government forensic scientist examined the crowbar, a locker compartment door, and a loose locker door handle.  He examined these items and was of the opinion that there could have been a contact between that crowbar and that locker door which rendered a paint transfer from the locker door to the crowbar.  His witness statement and findings were not challenged.  His statement was Exhibit P19.

The defence case and evidence

12.It was not disputed that the defendants were stopped at about 3 am on 12 January 2021 on Luen On Street, Luen Wo Market, in Fanling, New Territories.  They deny entering the fruit and vegetable shop and stealing from within.

13.They both allege that they were intercepted and assaulted by unknown people who ran at them as they crossed the road.  They were separated, handcuffed and accused of entering the shop and stealing money.

14.The 1^st defendant never had possession of a bag of coins.  PW3, his arresting officer, forcibly took off his glove on his left hand and told him to hold the bag and put a bag containing coins into it.  He then said he had stolen that bag of coins and now had his fingerprints on a bag so he could not deny the burglary.  He was told he had no choice but to admit the offence.  He was coached by PW3 how to admit the burglary and what to say. He was never arrested and cautioned at the scene, nor did he make any verbal admission.

15.Because of the assaults and threats, the 1^st defendant agreed to admit a burglary he did not commit.  He was not advised of his rights at the police station as alleged, and he did not sign the Pol.153 notices as described by PW3.  He was forced to sign and write the declaration in the post-recorded statement in PW3’s notebook.  He was coached and taught what to say in his subsequent video-recorded interview.  It was not conducted voluntarily.

16.The 1^st defendant gave evidence in the special issue to challenge the post-recorded statement and video-recorded interview. He elected to give evidence in the general issue after I ruled that the defence had a case to answer.

17.In evidence, he said that he was in Fanling at 3 am even though he lived in Mong Kok, to assist a man called “Man Chai” to collect money for him and with him.  He would be paid $1,000 after the job was done.  He, the 2^nd defendant, “Man Chai”, and a man called “Bar Si” took a taxi from Mong Kok at about 2 am together. “Man Chai” told him and the 2^nd defendant to get out outside the shop of 17A on Luen On Street and wait there. Apparently the job was nearby, but “Man Chai” had to go and collect someone else and would come back shortly.  It was whilst they waited for “Man Chai” to return that they were arrested.  Neither defendant entered shop 17A, nor did they steal anything.  He did not have a bag of coins on him.  He was framed by the police. 

18.The 2^nd defendant did not give evidence in the special issue or the general issue.  Any defendant has a right not to give evidence.  The failure of any defendant to give evidence is no evidence of his guilt; it proves nothing.

19.It was put to the police officers who gave evidence that the defendants were framed for this burglary.  It was suggested that their evidence was inconsistent and contradictory in material facts.

The prosecution’s evidence

20.The prosecution called 5 police officers to give evidence.  PW1 was the 2^nd defendant’s arresting officer.  His evidence was that his team from West Kowloon Regional Crime Unit left their station after a briefing ended at about 11 pm on 10 January.  They arrived at the material location in Fanling at about 11.40 pm.  He patrolled the area on his own with others similarly on patrol nearby with the objective of conducting an anti-burglary operation.  They had had information of possible burglaries in that area and were looking for suspicious people and suspicious activity.

21.Just before 3 am, he was on Luen On Street near shop 17A when he saw 2 people outside shop 17A looking around.  He stopped to observe them.  He hid himself behind a vehicle to watch.  He saw them both pull up the metal shutter and enter the shop.  He then informed his other team members nearby of his observations.  He saw the lights of the shop illuminate for a few seconds and then were turned off.

22.Less than 5 minutes later, he saw the same 2 people come out of the shop.  He saw one of the men holding a long object which he appeared to discard amongst some Styrofoam boxes stacked up outside the shop.  They were both wearing a face mask and hats.  The other male was even wearing sunglasses.  After the long object was discarded, both walked into the middle of the road before he and other police officers who were kept informed of their activities had come to assist him intercepted the 2 men.  They were both separated and brought back to the pavement.

23.He and PW4 intercepted the 2^nd defendant who appeared to want to resist and escape, so he was handcuffed.  After that he was calm and told the officers that he was a Form 8 holder.  He did speak Cantonese but with an accent.  He was identified as Nepalese and did not answer PW1’s question posed in English as to why he was there.

24.PW1 described how long they were at the scene waiting on board a vehicle with the 2^nd defendant for the photographer from the Identification Bureau to arrive.  They did not proceed to Sheung Shui Police Station until much later arriving there at 4.50 am.  Both defendants were taken to see the duty officer.

25.The defence case was put to PW1 as set out in the grounds of objections to the admissibility of the alleged admissions and statements for both defendants; MFI-1 for the 2^nd defendant, MFI-2 and MFI-2A for the 1^st defendant.

26.PW1 denied the allegations of assault, threats, coercion and oppression.  He was not the officer who dealt with the 2^nd defendant’s request to make Methadone or took him to hospital for such treatment which was ultimately not available.  He did not tell him that if he admitted the offence, he would be given Methadone. 

27.PW2 was the designated exhibits officer. Essentially, his evidence was the same as all other officers in regard to their briefing to go to that area due to intelligence received relating to burglaries targeting street shops that evening.  Whilst he was on patrol on his own in the early hours of the morning he heard PW1 communicate to him and other team members about observing 2 men at the fruit and vegetable shop.  Once he heard that news he immediately rushed to that location.  He was the officer that drew a sketch of the area, P7.  He was the officer who, according to information from PW1, went to the boxes stacked outside the shop and found the crowbar, P9, on the ground between boxes.  He was the officer who entered the shop to find mess and obvious signs of ransacking.  In a cabinet of lockers he found the lower locker had been prised open.  He took the photographs in photograph albums P1 comprising of 3 books of photographs.  He later seized the actual locker door and a loose locker door handle for forensic examination.  He also accompanied the photographer from the Identification Bureau when he arrived to take the photographs at the scene, as well as an officer who lifted fingerprints all over the shop.  He was one of the last to leave the scene to go to the police station.

28.He denied sitting with the 1^st defendant in a vehicle and accusing him of burglary.  He denied swearing at the 1^st defendant and saying he had to admit the burglary because he had found the crowbar.  He denied punching him several times.  He denied sitting in the vehicle twice with the 1^st defendant and speaking to him.  He denied the allegations of threat that forced the 1^st defendant to admit the offence.  His evidence was that he never boarded the vehicle with either defendant at the scene. 

29.It was suggested to him that he was present when PW1 threatened to assault the 2^nd defendant in a room in the police station. He heard him tell the 2^nd defendant he had to admit the burglary.  He denied all allegations of police impropriety. 

30.PW3 was the arresting officer of the 1^st defendant and like PW2 heard a message from PW1 at about 2.56 am whilst he was on patrol alone nearby.  He went to await instructions near the fruit and vegetable shop mentioned.  From his observation point, he saw the 2 defendants walk from outside that shop onto the road and towards the direction of Luen Wo Street.  He went forward to intercept the men when the 1^st defendant saw him and turned to run.

31.He and PW5, another officer, caught the 1^st defendant who had to be subdued on the ground.  As he struggled, PW3 decided to handcuff him.  He then searched the 1^st defendant and found a plastic bag of coins in his left coat pocket and an identity card.  He put the coins back into that pocket.

32.He did later arrest and caution the 1^st defendant at the scene who replied that he and the 2^nd defendant had no money, so they went to the vegetable store to burgle it to get some money for Chinese New Year.  He was taken on board an unmarked police vehicle to wait for the officers from the Identification Bureau to arrive.  Much later he was then taken back to Sheung Shui Police Station after photographs were taken, exhibits were seized, and fingerprints lifted. 

33.He explained the procedure at the police station and how he later served a Pol.153 for post-recording his verbal admission at the scene into his notebook.  By then he had taken the bag of coins from the 1^st defendant’s pocket.  He had custody of it, and it was on the table at that time.  All of the defendant’s clothes were seized, including the gloves he was wearing when he was intercepted. 

34.PW3 explained how he dealt with the coins, setting them on cardboard and in a tamper-proof envelope.  Until he gave them to the exhibits officer, these coins were either in his physical custody or locked in his desk drawer.

35.During the whole time PW3 dealt with the 1^st defendant, he did not request Methadone from him, nor say he needed it.  There were no symptoms of drug withdrawal he saw either during the post-recorded statement or the video-recorded interview.

36.During cross-examination, he denied all allegations of assault, threats, coercion and oppression.  He denied fabricating his evidence and framing the 1^st defendant.  He denied the allegation he did not arrest or caution the 1^st defendant at the scene and that the verbal admission he attributes to the 1^st defendant was fabricated.

37.It was suggested to him that the bag of coins he forced the 1^st defendant to hold was not seized from his pocket.  This allegation does mean that either it was the police who stole the bag of coins totalling $102 and framed the defendants, or that the store manager later lied about this bag of coins belonging to the business.  These coins were seized before this witness confirmed this loss was suffered as a result of a break-in.

38.Similarly, he denied allegations put in the 2^nd defendant’s cross-examination.  He denied that the officers acted inappropriately at the scene and in the police vehicles.  He denied the defendants were falsely accused of burglary and made to admit the offence.  He denied the 2^nd defendant cried in the vehicle when accused of burglary.

39.PW4 was an officer tendered for cross-examination.  He had assisted PW1 to stop and subdue the 2^nd defendant. He too denied all the allegations put to him of impropriety, fabricated evidence and collusion between the police officers to frame the defendants.

40.PW5 was another officer tendered for cross-examination.  He had assisted his colleagues by helping to guard the defendants after they had been stopped, subdued and handcuffed.  He too denied all allegations put to him of impropriety, fabricated evidence and collusion between police officers to frame both defendants.

The special issue

41.I need say no more where the 2^nd defendant’s video-recorded interview is concerned.  I found it was voluntary, but I exercised my discretion and excluded it from evidence.  I explained fully the reason behind that decision in my ruling.

42.The 1^st defendant gave evidence of how he was stopped by a group of police officers, assaulted, framed and coached into making an admission of burglary.  He thought he had no choice and thought that their actions amounted to a threat to his safety.  Later he said he was actually verbally threatened as opposed to that this was his own thinking and belief.

43.The issue to be resolved was one of credibility.  Discrepancies between the officers’ evidence were highlighted, but I found no material discrepancies that were so serious as to cause me to doubt their evidence.  There was no likelihood of fabrication and collusion.

44.I had difficulty believing the 1^st defendant’s evidence and whilst evidence that sounds rehearsed is not because of that unreliable, however, in this case I had little difficulty in dismissing it as not credible.  I found the 1^st defendant’s account of what he said happened was inherently suspect, untruthful and, essentially, unbelievable.

45.His video-recorded interview, which we watched in open court, flowed very naturally and did not smack of a story that was partly coached and partly made up by the 1^st defendant himself.  There was no hesitation nor any answers that appeared rehearsed.

46.PW3 agrees that he did not give the 1^st defendant a copy of his post-recorded statement in his notebook before he began the video-recorded interview.  The submission was that he was in breach of direction 8 of the Rules and Directions where it states that:

“A copy of the statement should be supplied as soon as possible after each interview. The only exception is where hindrance is reasonably likely to be caused to the administration of justice.”

47.There is little in this submission when this officer started the video-recorded interview by repeating in its entirety the contents of that post-recorded statement which was not a long answer or admission.  I have considered this breach and find no harm or prejudice to the 1^st defendant.  It is not a ground in which I would have considered excluding the video-recorded interview.

48.I rejected the evidence that the 1^st defendant was assaulted, framed, threatened or oppressed.  I rejected the evidence he was denied Methadone treatment in a timely manner.  I found the evidence of the officers credible and reliable.  I found the prosecution proved beyond reasonable doubt that the defendant voluntarily and verbally admitted the burglary at the scene and confirmed it in a post-recorded statement followed by a video-recorded interview given voluntarily.

My findings

49.The burden to prove guilt is always on the prosecution and the standard is beyond reasonable doubt.  The defence have nothing to prove.  The 1^st defendant elected to give evidence and I have taken into account everything he has said.  I have carefully considered the evidence of each witness, the discrepancies and inconsistencies relied upon by each party as well as submissions made.  The fact I do not repeat here every argument, submission and allegation made does not mean I did not take them into account in my decision-making process.

50.I accepted the evidence from the prosecution witnesses as truthful and credible.  I found no discrepancy or inconsistency so serious and material as to make me doubt the evidence.  I am sure they received information about possible burglaries at the material time in that district which led their team to conduct this anti-burglary operation.

51.I believe that PW1 covertly observed both defendants entering the fruit and vegetable shop before they came out a few minutes later.  I am sure the 1^st defendant discarded or hid the crowbar later found just outside the shop, the same crowbar that very likely had traces on paint on it that matched the damaged locker door from inside the shop.

52.I am sure the police found a bag of coins totalling $102 in the 1^st defendant’s pocket.  The manager of the shop confirmed later on, after the arrests that the shop had a bag of coins of that amount locked in a locker which had been stolen.

53.If, indeed, as the 1^st defendant suggested that the coins were planted on him, then he can only be suggesting that the police either burgled the premises themselves or that they were in collusion with the manager to ensure that any loss suffered in the burglary tallied with the amount found on the 1^st defendant.  This is completely unbelievable.

54.Mr Chong for the 1^st defendant has submitted that the admissions made by the 1^st defendant did not tally with the evidence or reasonable and, therefore, must mean they were not credible nor capable of supporting guilt.  He submits that the observation evidence did not make sense in that the defendants did not need to rush whilst inside the shop and could have spent much longer looking for valuables.  It made no sense that they missed the $7,000 in a locker.  It was submitted it was unreasonable for them not to have found it and, therefore, casts doubt on the prosecution’s evidence.  With respect, I do not see how these hypothetical submissions exonerate or assist the 1^st defendant or cast any doubt on the prosecution’s evidence.

55.I found the 1^st defendant’s admission and video-recorded interview given voluntarily and the prosecution can rely on that evidence to support their case.  It is a full admission of burglary that incriminates the 1^st defendant.  It cannot be used to incriminate the 2^nd defendant.  However, I believe the evidence of PW1 that the 2^nd defendant was with the 1^st defendant when they entered and left the premises.  As I said, there is no doubt the premises were ransacked in the course of a burglary.  Two lockers were prised open with a crowbar in the 2^nd defendant’s presence if not opened by him.

56.The 2^nd defendant was wearing a cap, gloves and sunglasses at 3 am which I am sure was to evade any detection, for example, by CCTV cameras.  Both defendants were wearing gloves which are basic tools for a burglar.  In light of the strength of the observations and the evidence on the whole when considered together, I rejected the 1^st defendant’s evidence that the cold weather necessitated a cap and gloves.

57.Mrs Remedios for the 2^nd defendant submits that if they had entered the shop, there is no evidence that the 2^nd defendant knew they were trespassers in the shop, especially when the roller shutter was not locked.  There was no evidence that he knew the 1^st defendant was carrying a crowbar on him to enter the shop.  There was no evidence that he knew he was part of a joint enterprise to burgle and no evidence he knew he was participating in a burglary inside the shop. There was insufficient evidence to prove an irresistible inference that he had the necessary mens rea. 

58.With respect, I reject those submissions and find the 2^nd defendant must have known he was participating in a joint burglary.  With how he was dressed at that time of the morning, coupled with the searching and damaging of property inside what was a closed shop, clearly for the purposes of finding valuables, makes me sure he had the necessary mens rea and is jointly culpable.

59.I am sure the prosecution has proved all elements of the offence beyond reasonable doubt against each of the defendants.  I am sure they jointly burgled the fruit and vegetable shop at the material time.

60.Accordingly, I find the 1^st and 2^nd defendant guilty as charged and convicted after trial.