HKSAR v. San Esteban Leah De Leon

DCCC 773/2021

[2022] HKDC 924

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 773 OF 2021

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REASONS FOR VERDICT

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1.The 2^nd defendant faces a single count of burglary in the case. The particulars of offence say as follows:-

On 9 May 2021, the two defendants entered as trespassers part of a building known as the Ground Floor, No 287 Hennessy Road, Wanchai with intent to do unlawful damage to the building or anything therein.

2.Now the case came to light after PW1 in the case, Madam Sin, discovered in the afternoon of 9 May 2021 that some cable wires and their plastic tubings on the 1^st floor of the building were damaged.  They were intact the day before when she looked.  She said she had this practice of keeping an eye on the cable wires because the wires outside her flat on the 5^th floor had also been damaged prior to the Chinese New Year in 2021.

3.After police were called in, footages taken by the CCTV cameras installed outside and at the staircase landing on the 1^st floor of the building in question were examined.  These footages have been produced in this hearing and have been respectively marked as P1 and P2. 

4.Having viewed the CCTV footages, it was found that the two defendants had appeared outside PW1’s building at around 1:24 in the morning of 9 May.  According to the time stamp on the video footage this was 1:34:07, but we have been told that this was actually 10 minutes ahead of the real time, so the time was actually around 1:24.

5.Having walked past the entrance to the building, the 1^st defendant turned to the 2^nd defendant who was walking a little behind and said something to her.  The two then turned around and D1 sat down on what appeared to be the first step at the doorway of the building. 

6.In the meantime, the 2^nd defendant inserted her right hand into the knapsack she was carrying at her chest and rather surreptitiously came out with what looks like a pair of pliers, which she immediately handed to the 1^st defendant.

7.Armed with that thing, the 1^st defendant went up to the staircase landing on the 1^st floor and, as we can see from the video record, pulled down the wires and caused damages to the tubings. 

8.The two defendants were arrested on 11 May 2021 outside the hotel they were living in called the Charterhouse on Wanchai Road.

9.Prosecution’s case is that the two defendants were acting in concert in the said burglary. 

10.The 1^st defendant has of course pleaded guilty to the charge and the prosecution says that the 2^nd defendant must have been a party because: 1)  she had handed what the prosecution said was a pair of pliers to the 1^st defendant 2)  that given the time in question and bearing in mind what the 1^st defendant did after he gained entry into the building, the only reasonable inference is that the 2^nd defendant was supplying the 1^st defendant with a piece of equipment which the latter had or could have used to take down the wires in the building, and in doing that, causing damage to both the wires and the plastic tubes.

11.Although a total of four prosecution witnesses have been called, I do not think there is a need for us to go into their evidence in any detail here.  I have mentioned already the role of PW1.  As to PW2 to 4, it will suffice for me to say that they were officers involved in the investigation and/or arrest of the defendants.  There is no eye-witness for the offence, and as such there can be no doubt that the prosecution’s case against the 2^nd defendant stands or falls with what one could make of the CCTV footages.

12.On the prosecution’s evidence the court has found that there is a case for the 2^nd defendant to answer.  Exercising her right the 2^nd defendant elected not to testify in the trial. 

13.Now with what I have said earlier in mind, the first and foremost issue in the present trial must be whether one can be sure that it is a pair of pliers which the 2^nd defendant was handing to the 1^st defendant. 

14.Having looked at Exhibits P1 and P2 with care a good number of times, I think all that one can say is that the thing which the 2^nd defendant handed to the 1^st defendant looks terribly like a pair of pliers.  It would appear that she was holding the head section, ie the section of the gripping jaws with the handles of it hanging down, when she handed it to the 1^st defendant.

15.But can I be sure that that was indeed a pair of pliers?  Having thought long and hard about this, the answer I am afraid is no. 

16.In their final speech, the prosecution says that even if the court is not satisfied that the 2^nd defendant was passing a pair of pliers to the 1^st defendant, it must still something for use by the 1^st defendant in committing the offence. 

17.Also the prosecution says that being outside the building for six minutes in the small hours of the morning, the 2^nd defendant was also acting as a lookout. 

18.Now these are clearly arguments not entirely without force.  However, having pondered upon these arguments, I am of the view that whilst they are both valid arguments for finding that there is a prima facie case against the 2^nd defendant, it is doubtful whether they are sufficient to make one sure that that is indeed the case.  For one thing, both arguments are dependent on the 2^nd defendant having the requisite knowledge that the 1^st defendant was going to commit an offence inside the building.  But where is the evidence for that? 

19.Prosecution says that unless she knew that the 1^st defendant was up to something inside the building, why would she have agreed to wait outside at this time of the morning?  My view on this argument is that whilst there is again some force in it, one cannot at the end of the day dismiss the possibility that, insofar as the 2^nd defendant was concerned, the 1^st defendant was going in for maybe an innocent reason, like looking for a friend, or picking up something which he had left or hidden inside the building, or finding a spot maybe to answer the call of nature. 

20.All in all, my view is that on what is before me it is unsafe to find that the 2^nd defendant must have had the requisite knowledge or intent.   And without that I cannot see how one can come to the conclusion that whatever that was passed by the 2^nd defendant to the 1^st defendant it must have been an appliance to be used by the 1^st defendant for committing the offence of burglary, or that the 2^nd defendant must have been acting as a lookout whilst waiting outside the building.

21.On the basis of the above discussion, I find that the charge against the 2^nd defendant is not proved beyond all reasonable doubts and accordingly the 2^nd defendant is acquitted of the 1^st count on the charge sheet.