HKSAR v. Mohammed Abdul Jalil

DCCC 52/2022

[2023] HKDC 791

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 52 OF 2022

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REASONS FOR VERDICT

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1.The defendant has been charged with 1 count of burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap. 210 (first charge)  and an alternative charge of criminal damage, contrary to section 60(1)  of the Crimes Ordinance, Cap. 200 (second charge).  He pleaded not guilty to both charges.

Prosecution’s case

2.Prosecution only called Ms. Ho Chau Fa to give evidence.  According to Ms. Ho, her family has a storage room at the rooftop of the building in which they reside.  In the morning of 3 February 2020, Ms. Ho heard some noise from the storage room.  She was scared and returned to her flat and called the police.  Subsequently, the police arrived and arrested the defendant at the 7/F of the building.  At that time, the defendant was carrying a plastic bag containing a cutter and a pair of scissors.

3.Investigation reveals the padlock on the door of the storage room was damaged. A used cigarette butt with the defendant’s DNA and 2 masks were found in the storage room.

Defence case

4.After I ruled a case to answer, the defendant elected not to give evidence and not to call any witnesses.  From the cross-examination, it appears the defence case is there were strangers entering and leaving the building all the time as the main entrance door and the back door of the building were left open, the padlock was not damaged by the defendant, the defendant might have entered the storage room to get shelter from the cold weather and had cigarette there.

Analysis

5.Prosecution has the burden to prove the requisite elements of the offences beyond reasonable doubt.  The defendant has no burden of proof.

6.The first charge and the second charge are alternative counts.  I have to first consider the first charge.  If I find the defendant guilty of the first charge, I do not have to consider the second charge.  But if I find the defendant not guilty of the first charge, then I will have to consider whether the defendant is guilty of the second charge. 

7.The defendant did not give evidence and did not call witnesses.  That is his right.  I must not assume he is guilty because he has not given evidence. On the other hand, it means there is no evidence from the defendant to undermine, contradict or explain the evidence put by the prosecution.

8.I also remind myself that if I am to draw inference, the inference must be drawn from facts proved and that the inference is the only irresistible inference to be drawn from the proved facts. 

9.Ms. Ho’s evidence was not seriously challenged by the defence.  I find her evidence clear and simple.  I find her an honest and reliable witness.  I attach full weight to her evidence.

10.According to Ms. Ho, the padlock (exhibit P5)  was intact on 2 February 2020, the day before the incident.  So, the padlock was damaged prior to the incident in question.  Judging from the way the padlock was damaged, that the defendant only had a cutter and a pair of scissors with him at the time of arrest and there was no contact evidence of the padlock with any of the tools found on the defendant, I accept Mr. Boyton’s submissions that there is no evidence to prove it was the defendant who damaged the padlock.  Instead, the evidence suggests that the padlock would have been damaged by someone other than the defendant.

11.Given a used cigarette butt with defendant’s DNA was found in the storage room and the defendant was found in the building shortly after the incident, the only irresistible inference is that the defendant was present in the storage room at that time.  As Ms. Ho seldom entered the storage room and she did not inspect the storage room after the incident, there is thus no evidence of ransacking in the storage room.  If someone entered the storage room with intent to steal, I would expect that person to have ransacked the storage room instead of spending his/her time smoking there.  Given there is no evidence of ransacking and the padlock was not damaged by the defendant, I am not sure about the defendant’s intention when he entered the storage room, whether he entered with intent to steal or because he was curious about what was inside the room on seeing it being unlocked or for some other purpose.  In the circumstances, I find the prosecution has not proved beyond reasonable doubt that the defendant entered the storage room with intent to steal.  I therefore find the defendant not guilty of the first charge.

12.As I have already found the padlock was damaged by someone other than the defendant, I also find the defendant not guilty of the second charge.