HKSAR v. Gurung Niraj

DCCC 1071/2021

[2023] HKDC 132

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1071 OF 2021

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REASONS FOR VERDICT

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1.Defendant Mr Gurung pleaded not guilty before me to one charge of Attempted burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200. Particulars are that he, on 19 August 2021, in Hong Kong, attempted to enter as a trespasser part of a building known as 2 Floor, No 50 Bowring Street, Yau Ma Tei, Kowloon, with intent to steal therein.

Prosecution case in a nutshell

2.On 19 August 2021, sometime between 0055 and 0239 hours, defendant was caught by CCTV camera to have been acting suspiciously outside the premises known as 2 Floor, No 50 Bowring Street.  In particular, he was seen touching the door of the premises and apparently leaving some article(s)  on an attachment to the door.

3.At about 0800 hours, when the resident of the premises PW1 was leaving the premises on his way to work, he found on the digital doorlock attached to the outside of the door a cigarette bud and a lighter.  He threw them away.

4.After seeing the above CCTV footage on the same day, PW1 made a report to the police.

5.On 14 September 2021, in the evening, in the vicinity of the premises, PC 26865 (PW2)  declared arrest of the defendant for Attempted burglary and an unrelated offence (which I shall disregard).

6.Subsequently, on 15 September 2021, DPC 23672 (PW3)  with the assistance of a Chinese vs English interpreter (PW5 Wong)  and an English vs Nepalese interpreter (PW4 Rai)  served on the defendant a Notice to Persons in Custody (P6)  and conducted a cautioned Video Recorded Interview (VRI)  (P7)  with the defendant.

7.During the VRI, the defendant admitted that:-

(a)  he was the person captured by the said CCTV (#228 & #306);

(b)  he was there to see if there was anyone inside the premises and if there was none, to see if there was anything he could do (#240);

(c)  he might have taken something which he needed (#246);

(d)  he placed a cigarette and a lighter on the door lock in order to test out if there was anyone inside the premises (#272 & #312);

(e)  he had pressed the door lock twice that early morning (#288)  though he did not know the password (#294); and

(f)  he lived at the staircase below the floor on which the premises were situated (#348).

Defence case in a nutshell

8.Apart from a plea of not guilty, there was no defence case.

Procedural history

9.Prior to trial, there was a mention hearing in open court on 15 December 2022 to ascertain exactly what the defendant wanted to do as regards plea. Generally, the defendant kept silent but appeared to want to go through a trial.

10.On the first day of trial (and indeed throughout the trial), the defendant continued to keep silent and kept his head down most of the time.

11.Prosecution assured me that the prosecution papers had been served on the defendant as early as 3 January 2023 (but later acknowledged that the certified (as to transcription and translation)  sets of VRI transcript had not yet been served; so they were duly served in court).

12.As the defendant was unrepresented, I explained the charge to him.

13.An attempt to take plea was made but the defendant stood mute.  A short procedure was conducted to ascertain if it was mute of malice or mute by visitation of God.  Prosecution referred to two psychiatric reports taken of the defendant respectively dated 21 April 2022 by Dr Amy Liu and dated 25 April 2022 by Dr Shek Kei Fung obtained earlier when the defendant was going through the court process up to my court (I was told the original reports were in the court file).  Both reports concluded there was no overt evidence showing/suggesting the defendant was mentally unfit to plead.  I ruled there was a prima-facie case of mute of malice.  Defendant did not call evidence against or make comment on the prosecution case alleging mute of malice.  I ruled that the prosecution has proved the defendant stand mute of malice beyond a reasonable doubt.

14.I regarded the defendant as pleading not guilty and so entered the plea pursuant to section 51(1)(c)  of the Criminal Procedure Ordinance, Cap 221.

15.For the record, I did not regard any issue as to fitness to plead had arisen.

16.I ascertained from the prosecution that the defendant had not served on them any Particulars of Objection to Admissibility of Evidence ordered to be served at the time of the mention hearing.

17.The procedure of trial was explained to the defendant and he was asked if he needed pen and paper.  He kept his silence.

18.Prosecution called 6 witnesses, in that order, PW6 DPC 23613 (Investigation Officer), PW1 Hui (Informant), PW2 PC 26865 (Arresting Officer), PW3 DPC 23672 (Conducted VRI), PW4 Rai (English vs Nepalese Interpreter), and PW5 Wong (Chinese vs English Interpreter).

19.Despite invitation and attempts to assist from the court, the defendant did not cross-examine any of the prosecution witnesses.

20.After the prosecution has closed its case on the special issue of voluntariness of the VRI, there was no half-time submission on that issue from the defendant.  I ruled there was a prima-facie case.  His choice was explained to the defendant.  The defendant kept silent.  I ruled the defendant voluntarily signed on the Notice to Persons in Custody and voluntarily took part in the VRI.  There was also nothing which would lead me to exercise my discretion to exclude those parts of the evidence. The provisional exhibits therefore became formal exhibits.

21.Prosecution then closed its case on the general issue.  Defence did not make any half-time submissions.  I considered the prosecution evidence and I ruled there was a case to answer.  His choice was explained to the defendant. He kept his silence.  I ascertained from the prosecution that there was nothing favourable in the background of the defendant that I should know about.  I considered defence case was closed.

22.Prosecution did not make any closing speech; neither did the defence even upon invitation by the court.

My consideration

23.I bear in mind the burden and standard of proof.  I acknowledged the defendant has to prove nothing and certainly not his innocence.  I drew no adverse inference from the fact that the defendant has given no meaningful response throughout the trial.

24.I realized the heavy responsibility on me because the defendant was unrepresented and I therefore scrutinized the prosecution evidence as much as I could.

25.Part of the prosecution case relied on the correct identification of the defendant by PW1 from the video footage.  I note that PW1 said that even prior to the day of the alleged offence, he had seen the defendant often sleep at the staircase between his floor and the floor below.  Although this is a case more of recognition than otherwise, I bear in mind the Turnbull warnings.  I took into account the lighting condition of the stairwell and the subject floor from the CCTV captured photo exhibits (P2).  For my part, I also took opportunities to compare the looks of the person captured in P2, the person interviewed in the VRI, and the defendant in the dock when he temporarily took off his mask.  I am satisfied they are one and the same person.

26.The positive identification of the defendant is reinforced by his admissions on this subject in the VRI.  I give full weight to these admissions and to other admissions against interest made by the defendant in the VRI.

27.Despite one or two confusions on the subject of conversion from Chinese reckoning to Western reckoning on floor numbers in the evidence of PW2, I give full weight to the evidence of all the prosecution witnesses.  Indeed, there had been no challenge to any of their evidence from the defence.

28.I note the impossibility of the attempt because there is no evidence that the defendant knew the password of the digital doorlock.  Indeed, he denied knowing the password in the VRI (#294).

29.However, I find that the defendant’s pressing the digital doorlock trying out his luck on the password is action which was more than mere preparation for entering the premises as a trespasser.  In this connection, I noted that although there was a sliding iron gate outside the door, PW1 said it was unlocked.  By the defendant’s admission, I also find a clear intent to steal on his part.

30.The prosecution has proved all elements of the offence charged beyond a reasonable doubt.

Conclusion

31.For the above reasons, I rule that the defendant is guilty of the offence charged.