HKSAR v. Kwan Sai Kit

DCCC 318/2022 [2023] HKDC 1528 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 318 OF 2022 ________________________   HKSAR     v     KWAN SAI KIT   ________________________ Before:  Deputy District Judge K Lo Date:  20 October 2023

Present:	Mr Philip William Swainston, solicitor on fiat, for HKSAR
	Mr David Boyton, instructed by Fu & Cheng, for the defendant

Offence:

Burglary (入屋犯法罪)

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REASONS FOR VERDICT

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1.The defendant is charged with a count of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. He pleaded not guilty.

Prosecution Case

2.In this case, prosecution relied on the Admitted Facts (Exhibit P32), evidence from prosecution witnesses, production of CCTV footages at the material times covering the exterior of the warehouse, the adjoining corridor and the vicinity where the defendant’s car was parked (Exhibit P26-P28). Prosecution also relied on the production of the video-recorded interview of the defendant. The disc was produced as Exhibit P24, transcript as P31 and the certified English translation as P31A.

Admitted Facts

3.It is agreed that on the date of offence, ie 14 January 2022, at around 9:02 pm, the defendant drove an unknown male and an unknown female to a location near the warehouse burgled.

4.The two persons alighted first and they went to the warehouse. At around 9:04 pm, they used an unknown object to tamper with the lock and bolt mechanism securing the door to the warehouse and gained access to the warehouse. The defendant later joined them at 9:05 pm and he helped remove items.

5.At 9:29 pm, the three left the warehouse and the defendant helped transport these items to his car parked outside the warehouse. The defendant also closed the door to the warehouse but did not secure it. The three boarded the defendant’s car and left.

6.It is also agreed that the owner of the warehouse found 80 empty packaging boxes, 2 brand new CCTV cameras, 2 sets of copper wire and some miscellaneous items missing, the total value of which was HK$10,800.

7.On 17 January 2022, at around 10:40 pm, the defendant was arrested for burglary at his home. The car key of the car in question was found on him. Upon search of the car, some packaging boxes (containing user manuals, discs and receipts)  and 8 pages of receipts were found in the trunk of the car. The owner of the warehouse identified these items to be part of the stolen properties from the warehouse.

Prosecution Witnesses

PW1

8.PW1, owner of the warehouse, confirmed that he had exclusive possession of the warehouse and that he used the same for storage. He said the same was secured with a padlock and a bolt, and he needed to use a flathead screwdriver to open the door.

9.He said no one was authorised to enter and/or take anything from the warehouse. He also said that the items taken from the warehouse belonged to him and they were of value to him.

PW2 - DPC25520

10.PW2 was the arresting officer of the defendant. He testified that he met the defendant at 10:25 pm on 17 January 2022 at the defendant’s home and that he proceeded to arrest him at 10:40 pm for burglary.

11.He said that after he cautioned the defendant, the defendant said, “Yuen Yee only asked me to drive”. Then PW2 asked the defendant who that Yuen Yee was and the defendant took out his phone and showed PW2 four telephone numbers. The defendant told PW2 these telephone numbers belonged to Yuen Yee.

12.PW2 made a post-record of the happenings on his police notebook but he did not ask the defendant to sign. Instead, he made a post-record statement back at police station in the form of Pol 857, which the defendant refused to sign. PW2 therefore asked his team leader, Inspector Ng, to sign instead.

13.Later, PW2 also conducted a video-recorded interview with the defendant in the presence of the defendant’s lawyer Wu.

14.PW2 said on 17 Jan 2022 after the defendant arrived home, PW2 and the defendant went to the defendant’s bedroom where PW2 made enquiries with the defendant. PW2 could not recall most of the conversation between himself and the defendant. He denied that the defendant told him that the defendant wanted to rent a place at Champagne Court, which he failed to record.

15.PW2 said after he made record of the incident in the statement, he showed the defendant the 2 declarations. He did say to the defendant that if he had any correction or addition or deletion to the post-record statement he could do so, but if he had nothing to add or amend or delete, then he could put the 2 declarations at the end of the statement, which the defendant did. He said however the defendant refused to sign.

16.PW2 said on 17 May 2022, he understood that his team did receive call or calls from the defendant during which the defendant said that he spotted Yuen Yee. PW2 said later at around 9 pm, they arrived the outside of the 1^st floor of 84-86 Java Road, North Point, where the defendant was.

17.They were told by the defendant that Yuen Yee was inside the unit, but after knocking at the door, no one opened the door. Police then did not have a search warrant of the premises. PW2 said that the defendant later told the police that Yuen Yee had escaped through the window and the police then immediately patrolled the rear lanes near the building. PW2 also recorded the North Point incident in Pol 155.

18.PW2 denied that someone opened the door to the premises upon knocking.

PW3 - Inspector Ng Ka Wai

19.PW3 was tendered for cross-examination by defence counsel. He was the officer in charge in this case. He denied having gone to the Java Road, North Point address. He said he only learned of the happenings at the Java Road address by reading the investigation report. He said that according to his recollection, the report said that someone did open the door and said Yuen Yee was not there.

20.This is the case for the prosecution.

21.After the court ruled there is a case to answer, defence counsel then confirmed the defendant, having been explained of his rights, elected to give evidence but called no other witness.

Defence Case

22.The defendant has no previous convictions except for gambling offences.

23.He said he was running a shop in January 2022 in Chungking Mansions selling electrical appliances and watches. He said that the tenancy agreement of the shop expired on 9 November 2021, but he was still in possession of the shop at the material times as he wanted to carry on with his business. He said he closed the business only in January 2022. He said there were still 8-10 cartons of goods left when the business ceased, so he wanted to rent a place to store the goods.

24.He said on the day in question, his girlfriend had arranged with her friend Chan Yuen Yee (“Yuen Yee”)  to meet up with them for dinner at Java Road, North Point. Yuen Yee brought along a landlord (a male)  and there was a discussion of a warehouse in Tsim Sha Tsui that could be leased to the defendant.

25.After dinner, the defendant drove the car to Champagne Court in Tsim Sha Tsui bringing along Yuen Yee and the landlord.

26.The defendant parked his car. As the defendant received a phone call, Yuen Yee and the landlord alighted first. The two then asked the defendant to join them after the phone call. The defendant said he later went to the warehouse on his own, and by the time he arrived, the door to the warehouse was opened.

27.The defendant said he saw there was a hole in the door and the two said there was a lock above the hole to secure the door.

28.The defendant said Yuen Yee and the landlord told him that the boxes in the warehouse were obstructing the way and they were just empty boxes. The defendant said he never went inside the warehouse and looked. He said upon his inspection, he found the warehouse suitable for him because the rent was low and it was in the vicinity of Chungking Mansions.

29.The defendant said he helped the two to clear the rubbish, ie the empty boxes from the warehouse. The defendant also said that as he was going to rent the place, they had to vacate the warehouse.

30.He said that the three of them left the warehouse, boarded his car and he drove them back to North Point where the two left with the boxes. The defendant said he had no knowledge that some of the stuff were left in his car as he did not alight the car when the two left.

31.He said on the way back to North Point, he told the landlord that he was going to rent the warehouse. He paid the landlord HK$1,500. He also took a photo of the identity card of the landlord when they were in North Point. According to the defendant, no agreement was signed as he did not have a pen or paper in the car. He also said that the landlord told him that the landlord would give him an official tenancy agreement in 2 days’ time. The defendant said he did not ask for a receipt for the HK$1,500 payment, nor the telephone number of the landlord.

32.He said that on 17 January 2022, his mother rang him and said that police officers had come to his home to look for him. On his return, the defendant said he was taken into his bedroom and was enquired whether he did go to Champagne Court on 14 January evening, what he did there and with whom. The defendant replied he did go there as he wanted to rent a warehouse to keep his goods. The defendant also told police that he did not commit burglary and he provided the 4 telephone numbers of Yuen Yee to the police as well as a photo of Yuen Yee.

33.The defendant explained the reason why he refused to sign the post-record statement in police station was because when he was asked to copy the declaration, he was not given the chance to read the statement, not even after he wrote the declarations. The defendant said later another officer read over the statement to him and as a lot of things said by him was not recorded in the statement, he refused to sign.

34.The defendant was asked why in the video-recorded interview, when he was asked what he meant by saying under caution, “Yuen Yee only asked me to drive”, his answer was that he did not say so. The defendant explained the reason was that the alleged utterance was not complete as he had told the police also that Yuen Yee had asked him to drive to Tsim Sha Tsui to view the shop.

35.The defendant said on 17 May 2022, at about 8 pm, he saw Yuen Yee in a game centre in Java Road. He said Yuen Yee did not notice him at the time. He at once notified the police team that arrested him, asking them to come, and he was told that they were busy. Later, police returned call and asked the defendant if Yuen Yee was still there. The defendant told them the exact address and they came to the place later.

36.The defendant said when police knocked on the door of the game centre, the responsible person opened the door, and when police asked if Yuen Yee was there, the person replied “Yes”. Police then asked Yuen Yee to come out. The person then closed the door and later he replied that Yuen Yee refused to come out. The defendant also said that police did not ask this person to let them in.

37.Then the defendant said police told him that they could not arrest Yuen Yee as they needed to make an application through a lawyer, which the defendant said he could not understand. The defendant said police simply left after 5 minutes.

38.The defendant denied having told police that Yuen Yee had escaped through the window.

39.The defendant said someone had to open the door in order to enter this game centre. He said earlier, he himself pressed the bell and someone opened the door and allowed him in.

40.In cross-examination, when the defendant was asked several times why in those circumstances he would not go in himself and speak to Yuen Yee, the defendant explained because he was told that Yuen Yee could not be arrested in that way. The defendant also said he did not know what he should say to Yuen Yee. Later, the defendant said he did call out to ask Yuen Yee to come out.

41.At first, the defendant said he called the police when he saw Yuen Yee who did not notice him. Later, in his cross-examination, he said after he saw the police had arrived, the defendant did ask Yuen Yee to come out. The defendant said he then went out to the doorway and told the police Yuen Yee was inside. Then police knocked on the door.

42.The defendant further said after police left, he left also and he stood downstairs of the game centre waiting for his girlfriend.

43.The defendant said in fact he had vacated his shop in Chungking Mansions on about 7 or 8 January 2022 and he intended to find another shop to do business.

44.The defendant said Yuen Yee was a good friend of his girlfriend but he said both himself and his girlfriend did not know where she lived although he had known Yuen Yee for 2 years.

45.He said he met the landlord for the first time on the date of the warehouse inspection. He was told over dinner that the warehouse was about 100-odd square feet and the asking rental is HK$1,500 per month. He was not shown any title documents of the shop and he was told that if he would like to rent the warehouse, the landlord would prepare a formal tenancy in 2 days’ time. He said he was arrested 2 days later.

46.When the defendant was asked if this was his first time to the warehouse, at first he replied “No”. Later, he clarified that few years back he had been to other shops in the same basement of the warehouse but did not go to the warehouse.

47.He confirmed when the three of them left the warehouse, there were still items inside the warehouse.

48.When the defendant was asked why were all items in the warehouse not removed, the defendant replied that they would vacate the place if the defendant were to rent the warehouse. The defendant said the items were removed as they were obstructing him from viewing the warehouse.

49.When the defendant was asked whether the two persons were actually selectively taking items from the warehouse and not just clearing the place for him to view the warehouse, the defendant disagreed. However, the defendant said he just had a look at the warehouse and he left. He did not pay attention to what the two persons were doing at the time.

50.Concerning the photo of the identity card of the landlord, when the defendant showed the court the photo in his phone, the time of entry of the photo was 25 September 2023 as well as 1 June 2022. He said that he might have taken the photo using another phone which he had at the material times. He said that the same was seized by PW2, although he could not produce any evidence showing the seizure. He said he retrieved the photo online and kept the screenshot.

51.When the defendant was asked further how he got this photo, he said “Anyway, I retrieve it online and immediately I kept it in the phone”. When he was asked further on this issue, the defendant said, “I can’t recall. I don’t recall how I made it.”  He said that he bought the present phone only after his phone was seized by PW2.

52.The defendant was asked if he had the identity card photo of this landlord, why did he not show it to the police when he showed the police the 4 telephone numbers and the photo of Yuen Yee. The defendant said because police did not ask him and he was so nervous because he had never been arrested before.

53.The defendant said after arrest, he was remanded in custody for 3 months for this case. During this time, the defendant said his girlfriend had been trying to locate Yuen Yee but in vain. He said however that he himself did not try to locate Yuen Yee after his release on bail. He explained the reason was because he might not be able to find Yuen Yee.

54.He denied he went to the warehouse with intent to steal.

55.This is the case for the defence.

Discussion

56.Although the defendant has previous convictions of gambling offences, this court will treat him as a person of clear record and due consideration regarding his propensity to commit crime and credibility has been given.

Issue 1

57.The first issue is what did the defendant say under caution after arrest in the defendant’s home.

58.It is not in dispute that the defendant returned to his home on 17 January 2022 at about 10:25 pm and he was arrested at 10:40 pm. There is no dispute that the defendant was cautioned and investigated during this time.

59.Defence said that there was a time gap of 15 minutes which would allow the defendant to have uttered his version of the reply.

60.According to PW2, during this period, he did investigate the defendant and the defendant did give the reply that he was only asked by Yuen Yee to drive the car. The defendant also showed him the 4 telephone numbers of Yuen Yee from his own mobile. All these were recorded by PW2 in pages 43 and 44 of his police notebook (MFI-1). These entries were immediately followed by entries concerning seizure of shoes and denim jeans of the defendant at 10:42 pm.

61.The fact that PW2 failed to remember all the dialogues during the investigation was not unreasonable unless there was something extraordinary about the answers.

62.This court sees no good reason why PW2 would have refused and/or failed to put down the full reply of the defendant as alleged. As a result of the volunteering of information by the defendant, PW2 knew of someone called Yuen Yee. It appears strange that if the defendant volunteered the information concerning Yuen Yee including her photo, yet he did not also show PW2 photo of the identity card of the “landlord” if in fact he did have it at the time. The defendant’s explanation for his failure to do so is not believable.

63.Again, when the defendant was brought back to police station and PW2 then proceeded to post-record what happened earlier, if PW2 had not recorded the full reply from the defendant, it’s strange again, why would the defendant not ask that the answer be rectified, but instead write the 2 declarations and refuse to sign?  He did not voice out such complaint even after Inspector Ng had read over the contents of the post-record statements to him, nor did he ask that his alleged reply be recorded in a complete form.

64.Moreover, his answer on the issue in Entry 20 of the video-recorded interview (Exhibit P31), ie that he did not say so, is inconsistent with his present explanation. In court, he said what he meant in Entry 20 was that the answer was incomplete.

65.The defendant was actually given numerous opportunities to clarify. If what he said in the court was true, he would have asked for clarification, but he failed.

66.The court has no hesitation to find as a fact that the reply by the defendant to PW2 was as PW2 alleged.

Issue 2

67.The second issue is the inconsistent evidence of PW2 and PW3 as to whether someone did open the door to the game centre in Java Road.

68.PW2 was the officer who actually went to the place on the day, whereas PW3 did not take part in the visit and he only answered the question from recollection of his reading of the investigation report.

69.Further, the defence has never put to PW2 that the statement PW2 made regarding the Java Road visit was inconsistent with his evidence in court. Therefore, there is nothing to suggest that the statement made by PW2 concerning the Java Road visit is inconsistent with his evidence in court. If that was so, this court could not see how there could be an investigation report prepared which contradicted the statement of an officer who had been to the site, because the investigation report would be based on the statements of all the officers who attended the scene.

70.This court therefore would, in the circumstances, prefer the evidence of PW2 to that of PW3 as far as this Java Road visit happenings is concerned.

71.Furthermore, if PW2 and the other police officers took the trouble of coming all the way from Yau Tsim District to North Point, it is inconceivable that they would just leave without even asking the person in charge to let them go in and locate Yuen Yee. They could of course also ask the defendant to go in and invite Yuen Yee to come out when they waited outside.

72.The other issue is had the defendant been tricked by Yuen Yee and landed himself in trouble, would he not go in the game centre and try to bring her out to clear his own name?  Had the girlfriend been trying in vain to locate Yuen Yee for months, would the defendant not wait for the girlfriend to come, then the two of them went in and talked to Yuen Yee to clarify what was going on? 

73.It is also strange the defendant said that he did not even try to locate Yuen Yee upon his release on bail.

74.The version or the evidence given by the defendant is incredible and inherently improbable.

75.The defendant also gave different versions as to what he did upon noticing Yuen Yee in the game centre. He only told the court when cross-examined that he had actually notified Yuen Yee when police arrived and he went out of the game centre to meet the police. Earlier he testified that Yuen Yee did not notice him and he called the police.

76.On this issue of the Java Road incident, the court accepts the evidence of PW2 that actually no one answered the door, and they were told by the defendant that Yuen Yee had escaped. Police then proceeded immediately to search the rear lanes of the building.

Issue 3

77.Coming to the knowledge and intent of the defendant at the time of his visit to the warehouse. The defendant said he has never been to the warehouse in question but from the CCTV footages one could see that when he was on his own way to the warehouse, he went straight to the warehouse without having to look at the shop numbers. He knew exactly the location of the warehouse.

78.The footages also showed that during his stay outside the warehouse, most of the time he stayed away from the doorway to the warehouse. He did not go inside the warehouse and inspect as an interested tenant would normally do. Most of the time he appeared to be just an onlooker of the two persons picking things from the warehouse. His conduct did not support his version of a visit by a prospective tenant.

79.Further, according to the defendant, he only told the two that he would rent the place on his way back to North Point. If that was the case, why would these people remove the so-called no value empty boxes and other items from the warehouse before they knew the answer?

80.The defendant said he paid HK$1,500 to the landlord without asking for a receipt or even a telephone number. This is again something incredible.

81.In addition, the defendant said the landlord would give him the formal tenancy agreement in 2 days’ time. The defendant was actually arrested on the third day. It appears that he did not have a tenancy agreement, nor did he explain why or what happened within these 2 days when he was expecting a formal tenancy agreement.

82.If what the defendant said was true, did Yuen Yee and the “landlord” took all these trouble to trick him just to help them transport the low/no value stolen property?  When the defendant was at the warehouse, he would have noticed that the two not just removed the items from the warehouse, but they were actually selecting the items to be removed, putting some of the items back to the warehouse after taking them out.

83.One could also see that they had pondered and discussed along the process. This is not consistent with the saying of the defendant that they took the items out in order for the defendant to see clearly the inside of the warehouse. In any event, they did not put all these items back after his inspection as the defendant has then not yet replied that he was going to rent the place.

84.The defendant testified and said he helped to remove the empty boxes which he understood to be rubbish. If that was the case, should he not move these rubbish to some garbage collection point in Champagne Court or nearby, and instead transport them back all the way to North Point?  Again, not to a garbage collection point?

85.The defendant in court said he had vacated from his shop in Chungking Mansions actually on 7 or 8 January 2022. If that was the case, the goods unsold from his shop would be stored already somewhere at the time. So why would he still need the warehouse?  The defendant also was not correct when he testified in court that he was still operating a shop in Chungking Mansions on the date of the offence.

86.The defendant’s version of PW2 having seized his mobile phone was not supported by any documentary evidence, and a question on this issue was never put to PW2.

Issue 4

87.On the issue of the photo of landlord’s identity card, the defendant said initially that he might have taken this photo with the seized phone. But if he only bought the new phone that he now have after his phone was seized, why would he say “might”? 

88.As I said earlier, his explanation of his failure to volunteer the photo of identity card of the landlord was not believable. This court finds as a fact, on considering the above, that the defendant actually did not have the photo of the identity card of the “landlord” on the date of the offence as he alleged.

89.The first entry to his present phone of the photo of this landlord’s identity card was on 1 June 2022. There was no photo in his photo album of this new phone between August 2021 and 18 May 2022 while there were photos in this new phone for other periods prior and subsequent to these dates.

Conclusion

90.This court finds the defendant’s evidence self-contradictory, devoid of common sense and inherently impossible. He clearly is not an honest nor a reliable witness. The evidence before this court clearly shows that the defendant was not present at the warehouse for the purpose that he mentioned.

91.However, this court reminds itself that the burden of proof lies on the prosecution. The defence does not need to prove anything. The prosecution needs to prove the charge beyond reasonable doubt.

92.This court has no hesitation to accept the evidence of PW1, PW2 and PW3 for that matter save for PW3 on the issue of the Java Road incident.

93.The prosecution’s case is well supported by CCTV footages, in particular those capturing the corridor leading to the warehouse as it showed the defendant well knew the way to the warehouse himself; those capturing the outside of the warehouse as it clearly showed the conduct of the defendant, standing afar from the door to the warehouse looking disinterested to the inside of the warehouse, which is inconsistent with one inspecting a warehouse for possible rental. It is also supported by the reply from the defendant when investigated by PW2 at his home, and the acts of the defendant taking all this trouble of moving the “rubbish” from Tsim Sha Tsui to North Point.

94.Moreover, according to the defendant, after he has parked his car near Champagne Court, the landlord and Yuen Yee went to the warehouse first only because the defendant then received a call. Therefore he joined the two after his call ended. It meant that had there not been the phone call, the three of them would have proceeded together to the warehouse. The other two persons did not mind the defendant there watching them tampering with the bolt and lock in order to find a way to open the door of the warehouse, which would have revealed clearly to the defendant that they have no lawful right to enter the warehouse.

95.The only necessary inference was therefore that the defendant knew actually that the other two persons had no lawful right to enter the warehouse and that the three of them had planned to enter the warehouse as trespassers with intent to steal therefrom.

96.In the circumstances, the court finds the charge proved beyond reasonable doubt. The defendant is convicted of the charge.

	( K Lo )
	Deputy District Judge