HKSAR v. Kwok Ying Po
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DCCC761/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 761 OF 2011 ----------------------
--------------------- Reasons for Verdict --------------------- 1.Defendant, you pleaded not guilty to a single offence of attempted burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200. 2.The prosecution case was as follows. 3.The premises was a two-storey village house at No. 41A Nai Wai, Castle Peak Road, Lam Lei, Tuen Mun. The premises is owned by Long Fung-peng, PW2, and comprised two suites, Suite A1 and A2. They were separated by a wooden wall affixed by nails and a wooden door on the ground floor. The door could only be opened from A2. 4.Cheung Po-sum, PW1, was the tenant of A1 and Chan 5. Ka-sing A2. PW1 resides with her son and Chan with you. PW1 placed a large cabinet in front of the wooden wall. 5. On 14 May 2011, PW1 returned to A1 at about 1 am. She checked all was in order before going to bed at about 2.30 am. At about 7.30 am, she found the cabinet had been pushed away from the wall, which was broken and pushed open from A2. She informed PW2 of this. PW2 arrived at about 9.30 am and made inquiries of you. You admitted having prised the wooden wall. 6.PC11437, PW3, arrived at about 9.31 am. Inside A2, under caution you admitted that you pushed open the wooden wall and intended to steal. You failed to steal anything and asked for a chance. PW1 confirmed nothing had been taken. 7.The prosecution case comprised the Admitted Facts, which are P1, and three live prosecution witnesses. The facts which are admitted in accordance with section 65C of the Criminal Procedure Ordinance, Cap.221, were as follows:
The Witnesses 8.Cheung Po-sum, PW1, gave live evidence, to which there was little or no challenge. She confirmed renting A1, which comprised the ground floor storage area and the attic with two bedrooms where she lived with her son, that on 14 May of last year, she returned home at about 1 am and bathed before going to bed at 2.30 am, that her son was already asleep inside his room, both slept with their doors closed. At about 7.30 am, she found the cabinet in the ground floor pushed away and the wall behind broken. Photographs P2, 8 and 9 show this. 9.She informed PW2, the landlord, who arrived at about 9.30 and went next door. She heard PW2 ask a person if he pushed open the door and he replied yes, then she asked why and he did not reply. A report was made to police. Nothing was taken. She said she did not know the persons in A2. Defence made an admission. It was you who made the admission. 10.She was then cross-examined. She said she had bathed on the ground floor. When she entered, she could see as the area was small and her impression was the cabinet was in place. Her son had drawn her attention to its being moved the next morning. 11.Long Fung-peng then gave evidence as PW2. She was the landlord of the premises, renting A1 to PW1 and A2 to Mr Chan Ka-sing. She simply confirmed the evidence of PW1. 12.PC11437 gave evidence as PW3. He went to the premises at 0931 hours. He described the condition of the wall/door and went next door. He found you sitting on a sofa. He cautioned you for burglary. You freely admitted pushing open the wooden door and the wooden wall. You did this by kicking and pushing. This had taken place the previous night but you could not recall the time. Your purpose, you said, was to see if there was anything to steal. 13.At 1020 hours, he arrested and cautioned you again. You replied to the same effect and added that Chan had nothing to do with it. You added that you had failed to steal and you asked for a chance. 14.You were taken to Tuen Mun Police Station, where a POL.153, P5, was issued. A copy was given to you after it had been explained. Then a post-recorded statement was made in PW3’s notebook and you signed it at various places. There was no challenge to this by way of voir dire. This is produced as P6, the translation being P6A. 15.PW3 was then cross-examined. PW3 never asked you why you did not steal anything. PW3 said you never told him that in the middle of night you had heard male and female voices from the door, then you had heard the female talk of slashing her wrists, nor had you said that you had rushed to open the door, kicked and pushed the wooden door open to rescue the girl. You did not say when you got a view into the flat that you saw no girl, nor did you say that you heard voices in your brain at which PW3 was alleged to have said, “Don’t talk such a rubbish. You’ve been stealing.” 16.PW3 agreed that you said it had nothing to do with Chan. PW3 did not ask if you did steal, nor after you allegedly said “However I did not steal anything” did PW3 ask you why you had not stolen. Also, PW3 denied that all signatures to P6 were attached at the police station. He denied that when P5 was given to you, you claimed not to be well. PW3 confirmed that his understanding was that you were admitting entering the premises but not stealing anything. 17.There was no re-examination. The prosecution case was then closed. In the absence of any contrary submission, I found that there was a case for you to answer. 18.You, having had your rights explained by counsel, elected to give evidence and ultimately also called three defence witnesses. 19.You said you were aware of others in the next flat but you did not know them. You accepted that the evening before your arrest you did open the door in the flat. You heard a female voice say, “I’m doing something you dare not.” Then a male voice asked, “What is it?” The female voice said, “Cutting hands.” Then you had an image of a female close to the side of the wall and blood all over the floor. You then forced your way into the other the flat, opening the door, kicking and pushing the plank and then moving the cabinet. Your intention, you said, was to effect a rescue. You found no one on the ground floor and went up and checked the bedrooms. Finding no one, you returned to A2, leaving the connecting door open. This was sometime after 6 pm when Chan was still at work. 20.You said the unusual experience, that is the voices, began some 10-odd days prior. This was the first time, however, you had images. Next day, you admitted damaging the door to PW2. When the police came, you told them you damaged the door trying to rescue someone. They questioned you further and said you wanted to steal and you replied, “If you say it, so be it.” You claimed you had not been cautioned and not asked at the scene to sign the notebook. At the station, you told PW3 you had electric waves in your brain. Then you signed as directed. 21.Later, you were taken to Tuen Mun Hospital. You refused to make a video-recorded interview. You were remanded in Lai Chi Kok and were then sent to Siu Lam after a few days. You were given medicine. Eventually you were given bail and you are still under the care of Castle Peak Psychiatric Centre. You ended your evidence by saying that you never intended to steal. 22.You were cross-examined at length, but you were largely unshaken. You confirmed being employed at the time of the incident. On the day before, you had gone to bed at about 8 pm. You confirmed the voices and images sometime after 6 pm. You had heard the voices for about 10 days plus. 23.You were then asked about and you described the events in more detail. You accepted it was your decision to go in to save the female. She did not ask you to do so. After checking, you returned to your home and listened to some music before going to sleep. You heard the male voice ask you to move the cabinet to its original position and close the door, but you did not do so as you had been fooled by them. You said you were angry but relaxed because nothing had happened. 24.You agreed you admitted the breaking in but did not mention the voice. You accepted you knew what both PW2 and PW3 were asking you. You disagreed you said you wanted to see if there was anything to steal next door and never asked for a chance. You also challenged the accuracy of some of the answers recorded in P6. You insisted you did tell PW3 you went in to rescue someone. You claimed that you signed on P6 when told to do so by PW3 without reading the contents. As regards the declaration, you just wrote what you were told to and you said you did not know it was such a serious matter. 25.You felt that it seemed there were voices in your head during the taking of the post-recorded statement, but you were not sure. You agreed you consulted doctors at Siu Lam, Castle Peak and Dr Benjamin Lai. You were questioned about the symptoms and what you told the doctors. You disagreed with the prosecution case as put to you by Miss Leung. There were some re-examination. 26.Dr Benjamin Lai then gave evidence as DW1. He was accepted without challenge as an expert in the field of psychiatry. He produced as D1 his report on your mental condition based on an examination of about 1 hour and 35 minutes on 9 February of this year. He had at that time before him for that purpose the brief facts, a memo from Siu Lam dated 24 July, a report from Lai Chi Kok on 6 October, and a medical report from Castle Peak Hospital dated 28 October. The conclusion Dr Lai comes to based on the contents of these documents, the information you provided, and his expertise and experience is that you are suffering from schizophrenia, which commenced prior to the incident. 27.Further, on the day of the incident, you were suffering from this condition and acting under the influence of a psychiatric illness at the time. Dr Lai was of this opinion, that he had no reason to doubt what you told him. Your mental functions were not normal and he considered you unfit to make a statement taken from you or to sign such. Your need for psychiatric treatment continues, although currently he described you as being neither a risk to yourself nor to others. 28.Miss Leung very properly cross-examined Dr Lai, but despite her best endeavours, he was unshaken as to his opinion and findings. He at one point said in this case he had no doubt that what you said was genuine, although that was for the court to decide. 29.Dr Oliver Chan(?) gave evidence as DW2. He too was accepted as an expert in psychiatry without objection. He produced D2, his report on you dated 28 October 2011. His findings at the time of the examination were that you were indeed suffering from paranoid schizophrenia and continued treatment was necessary. He said he had no reason to doubt the truth of what you had told him and agreed with the diagnosis from Siu Lam. He was unshaken again by very proper cross-examination. 30.Dr W H Chau gave evidence as DW3. He produced a memo from Siu Lam to Lai Chi Kok dated 14 July 2011. He confirmed the diagnosis that you suffered from schizophrenia but took matters little further. The defence case was then closed. 31.I turn now to the actual verdict. 32.Miss Leung for the prosecution and Mr Haynes for defence provided written final submissions. I am obliged to both for the clarity and the help with which they provided me. In reaching my verdict I have taken their contents fully into account. 33.There was little or no dispute on the facts in this case. The only matter was as to whether the prosecution had proved beyond all reasonable doubt that your intention was to commit burglary, that is attempting to enter as a trespasser into Unit A1 and intending to steal from there. 34.You freely admit to pushing open the door, breaking the partition and moving the cabinet for access. You then made an actual entry but you deny any intention to steal. You claim that you were having a psychiatric episode resulting from the recent onset of paranoid schizophrenia and that you forced an entry in order to rescue the female whose voice you had heard and whose image you had seen in your head. The female was committing or attempting to commit suicide to the best of your belief. This was by cutting her wrists. It was a delusion caused by your mental condition. 35.The prosecution case rests on the opening of the door, wall and the movement of the cabinet, also on your admission to breaking both to PW2 as confirmed also by PW1. Also, your admission to PW3 of that and of having done so with an intention to see what you could steal. I am satisfied of the honesty and accuracy of all prosecution witnesses. 36.You gave evidence of what you say actually occurred. The defence case, and indeed the case taken as a whole prove to my satisfaction the following:
37.Therefore, given all the circumstances, I am of the opinion not just that the case is not proved beyond all reasonable doubt, but the defence version is almost certainly correct, and despite any admissions made by you, you had no intention to steal from A2. 38.Therefore, in all the circumstances, the case against you is dismissed.
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