HKSAR v. Lau Kin Man

DCCC80/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 80 OF 2012

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Reasons for Verdict

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1.Defendant, you have pleaded not guilty to a single offence of burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2.The prosecution case was as follows:-

Mr Chan Kam-yin, PW2, was the proprietor of Kai Kee Godown, a company which delivered flour to customers. He rented Lot 1402, DD119, Pak Sha Tsuen, Yuen Long for the storage of flour. The lot was surrounded by metal railings and the entrance secured by a padlock. The warehouse itself was also secured by a padlock.

3.PW2 owned five medium goods vehicles which were kept outside the warehouse and locked. The keys to the warehouse were kept in the medium goods vehicles and the key to the medium goods vehicles in the warehouse. You had been a driver of the medium goods vehicle MN2670 but left the job in early July 2011. Mr Ng Kwok-wai, PW1, was the tenant of the opposite lot, that is Lot 1401, which was a garage. Around 7 pm on 29 August 2011, PW2 left his lot with the warehouse padlock locked but the other padlock not. Around 10 pm that day, PW1 returned to his garage. He found the door of the warehouse open with a male moving things inside. Being suspicious, he phoned the landlord who in turn called PW2.

4.Twenty minutes later, PW2 and his wife arrived at the warehouse to find the lights on.  They entered the warehouse and found you loading two boxes of flour, one in each hand, into the rear of MN2670.  PW1 asked you if you were stealing and you asked for a chance and promised to compensate PW1 by instalments.  PW1’s wife called the police.

5.Around 10.40 pm, PC6266, PW6, arrived.  PW2 found 125 boxes of flour valued at $12,500 had been loaded from the warehouse to NM26709.  PW3 arrested and cautioned you for burglary.  You asked for a chance as you were caught red-handed.  You stated you knew the key to the warehouse padlock was kept in the unlocked MGVs.  You got the key from NM2670 to open the warehouse and removed 125 boxes of flour to NM2670.  In a subsequent interview you remained silent.  You entered the warehouse as a trespasser.

6.The prosecution case comprised live evidence of three prosecution witnesses and admitted facts being P2.  P2 was read into the record and admitted to evidence in accordance with the provisions of section 65C of the Criminal Procedure Ordinance, Cap. 221.

1) Chan Kam-yin, PW2, was the proprietor of Kai Kee Transportation Godown which supplies flour.

2) He rented Lot 1402, DD119, Pak Sha Tsuen, Yuen Long where there was a warehouse to store flour.

3) He owned five medium goods vehicles including NM2670 which were kept and locked outside the warehouse. The keys to the warehouse’s padlock were kept in the vehicles and the keys to the vehicle inside the warehouse.

4) You were once a driver for PW2. You drove NM2670. You had not shown up for work since early July 2011.

5) Ng Kwok-wai, PW1, was the tenant of the garage opposite at Lot 1401.

6) Around 10.40 pm that day on the day in question, police arrested you at the warehouse.

7) Police took 10 photographs of the scene being P1, photographs 1 to 10.

(8) Your identity is not in dispute.

7.Ng Kwok-wai gave evidence as PW1, in fact he added little to the case.   He had the garage opposite the warehouse.  He saw someone loading things inside the warehouse at about 10 pm on 29 August so he notified the landlord.  Cross-examined, he said his garage was less than a 100 metres from the warehouse.  He saw someone moving goods inside the warehouse so went close.  When PW2 arrived he went with him and found the person to be someone who had worked there.   He confirmed there were occasions he stayed at the garage overnight and left the lights on.

8.Chan Kam-yin then gave evidence as PW2.  He is the owner of the warehouse and he took us through the photographs.  He told us the main gates to Lot 1402 was kept open but the warehouse was locked.  The medium goods vehicles parked there were usually unlocked and the keys to the warehouse kept inside.  He locked the warehouse at 7 pm on the day in question, no one else was there.  As a result of a phone call, he returned there at about 10.20 pm and found you holding two boxes of flour and throwing them up onto NM2670.  He cried out, accusing you of stealing and you said you were willing to compensate him with money and asked PW2 to not to call the police.  PW2 then checked NM2670 and found 125 boxes of flour placed in the vehicle.  They had not originally been placed there before.  They are worth about a $100 each, giving a total of $12,500.  You had been the driver of that vehicle but had not shown up for work since early July.  You did not work for PW2 by the date of the offence.

9.PW2 was cross-examined by Mr Kwan on your behalf.  He accepted that you had not resigned and that PW2 wanted you to work for him again.  He agreed you had tried to resign before but PW2 had persuaded you to stay.  He did accept he did not say in his witness statement that you were holding a carton of flour.  The defence case was put to PW2 but he disagreed maintaining his original version.  He agreed he knew that you had had your licence suspended in July.  He said to load 125 cartons of flour by hand would take about an hour.

10.PC6266 then gave evidence as PW3.  Defence have produced a handwritten Notice of Objection referring to the alleged oral admission, the Notice to Persons in Police Custody being POL 153 which was produced as PP3 and PP3A for the translation and the post-recorded statement, PP4 and PP4A.  The Notice of Objection speaks for itself and I do not intend to go through that.  I directed that the special issue be resolved but you still turned to procedure and ruled accordingly. 

11.PW3 told the court that he arrived at 10.40 pm at the warehouse.  At 10.45 pm, he arrested and cautioned you and you replied, “Ah sir, I am doomed right away, give me a chance”.  PW3 then asked you nine questions which referred to what you meant by “doomed right away”.  You replied that you had previously worked there and planned to take flour.  Then you were asked how you had entered and replied you came through the main entrance.  You knew the key to the warehouse was placed in a vehicle which was not normally locked.  Then you were asked which vehicle and what was its registered number. You replied it was NM2670.  You got the key from there and used it to open the warehouse and get the goods from inside.  You were asked how you got the goods and you said you loaded them with your hands.  You were asked why you stole the goods and loaded the vehicle, you replied you knew the key to the vehicle was placed on the table inside the warehouse then the goods with the vehicle would have been moved away.  Asked which goods vehicle and its number, you replied it was NM2670.  You declined to answer the next two questions.

12.At 11.02 pm, PW3 arrested and cautioned you and you replied, “I planned to drive away the goods, give me a chance”.  He said he had written out all the questions and answers at the scene contemporaneously and these could be found in his notebook at pages 44 to 47.  You were taken to Yuen Long Police Station where a post-record was made at 12.30 am on 30 August 2011 at pages 48 to 56.  Previously you had been issued with a POL 153, that is Notice to Persons in Police Custody.  You were told of your rights and you signed. He said it was the post-recorded version of what occurred from 10.30 pm onwards at the scene.  PW3 read out the statement to you and you yourself read it over.  You then at PW3’s invitation copied the declaration and signed.  You were supplied with a copy.  PW3 denied all the allegations made by defence on the special issue.  He was then cross-examined and the defence case was put to him.  That was denied by PW3.

13.In the absence of any contrary submission, I ruled the prosecution had established a prima facie case that all matters were in fact voluntary.  You elected to give evidence on the special issue and not to call any witnesses.  You claimed to have said nothing to PW3 at the scene and PW3 wrote nothing at the scene.  At the police station, PW3 simply threw down his notebook onto the table and told you to sign quickly, then you would be released.  Also, that it was no big deal, just a minor matter.  At the scene you claimed that PW3 pushed your left shoulder with his right hand, handcuffed you and with foul language said “You are doomed, busted right away”.  You said you asked him what happened as you only came to collect your own things, working clothes and shoes.  You were then pushed into the police vehicle.  You said it was horrible, PW3 was so fierce.  He never read over the contents of the post-recorded statement to you and never wrote anything at the scene.  You said you signed without knowing the contents because you were asked to.  You said you answered no questions and produced your own record of interview to support this.

14.The prosecution then cross-examined you and put the prosecution case to you which you denied.  Both sides made final submissions on the special issue.  Considering all the evidence, I believed the officer entirely and disbelieved you where you contradicted the evidence of the officer.  I was satisfied beyond all reasonable doubt that the oral admission, the notice, P3, and the post-record, P4, were voluntary, being given freely and taken fairly without violence, threats, inducements or oppression and I ruled accordingly.  These then became full exhibits in the trial.

15.The prosecution then closed its case and you had your rights explained by counsel.  You elected to give evidence and called no defence witnesses. 

16.You gave evidence that prior you had worked for PW2 as a driver.  You had gone to the warehouse at about 10 pm on 29 August 2011 to collect your clothes and shoes.  You did not inform PW2 as you did not want him to ask you to return to work.  You had already obtained other employment.  Previously at around Chinese New Year you had tried to resign but had been persuaded to stay.  You denied that when PW2 and his wife arrived you were holding flour claiming that you were in fact holding your clothes and shoes.  You told PW2 this.  You said you had no idea of how the goods came to be in NM2760 then you confirmed the previous evidence of what occurred at the scene that you gave in the special issue.  You were then cross-examined.

17.You agreed you had worked for PW2 and that you knew the procedures, which I took to mean the arrangements.  You claimed the warehouse was not locked, also you still had contact with colleagues but disagreed they could have retrieved your clothes.  By the time the police arrived, you said you had thrown the clothes to the side of the medium goods vehicle and PW2 knew this.  You said you had no chance to show them to the police.  You did offer to compensate PW2 and gave a very odd explanation for what you said.  You said you had no idea of the 125 cartons of flour which were on the MGV.  You disagreed that you had placed them there.  You also disagreed that you had entered as a trespasser or that you admitted to stealing the goods to police.

18.Both Mr Kwan on your behalf and Ms Chan on behalf of the prosecution made final submissions which I took fully into account when reaching my verdict.  I turn now to the verdict.

19.If you are to be convicted, the onus is squarely upon the prosecution to prove each essential element of the charge beyond all reasonable doubt, that is that you entered the warehouse at the address specified as a trespasser and stole 125 boxes of flour from there.  I had no hesitation in rejecting your explanation of what you were doing there. 

20.You claimed, after not attending your former workplace for something like six or seven weeks, you returned there late at night with the full knowledge of where all the keys were kept in order to retrieve your clothes and shoes.  This was clearly at a time when you knew that work would have ceased.  You did not do the proper thing and seek permission from PW2 for this because for some reason you were afraid or wished to avoid PW2 trying to persuade you to return to your old job.  You claimed to have shown PW2 the clothing and shoes and thrown them down by the side of the medium goods vehicle but made no effort to show them nor drew the attention of the investigating officer to these clothes. 

21.You said that you made no admissions of stealing flour to PW2, nor to the police officer, PW3, and at no time were you see carrying or holding or loading flour.  The 125 cartons on board NM2670 had nothing to do with you, indeed you had no knowledge of them. 

22.To support this, counsel for defence having established that from time to time PW1 spent the night at the garage opposite which was less than a 100 metres away, suggest it was unlikely that you would, knowing the circumstances, spend about an hour loading the flour.  Whilst there is no onus of proof residing with defence at all, there is nothing to show why PW2 would lie about or was mistaken as to what he had seen concerning a man he had obviously held in high regard as a worker and one whom he would have liked to persuade to return to work for him, it made no sense.  Your explanation and evidence was simply untrue. 

23.Likewise, at this stage I reconsidered the statements, their use to which I should put them, that is the verbal admission made to PW3 at the scene and confirmed in the post‑recorded statement as P4 and P4A.  Nothing I had heard made me doubt that they were anything other than voluntary, freely given and fairly taken and true.  I accept the evidence of all prosecution witnesses as true and accurate.  PW1’s evidence supports PW2 to the extent that he saw a male loading goods.  That could only of course be you.  PW2 arrived to find you carrying two cartons of flour which he saw you loading onto NM2760.  You have made the implied admission, though this was not under caution and so of lesser weight, by offering compensation and asking PW2 not to report to the police.  You did not have in your hands clothes or shoes, you did not show them to PW2 at any time, nor did you cast them down. 

24.When the police arrived you responded to PW3’s arrest and caution by saying “Ah sir, I am doomed right away, give me a chance”.  You then proceeded to answer seven of the nine questions put to you, effectively admitting your entry as a trespasser stealing flour and intending to take it away.  You confirmed this later in P4, which is the post-recorded statement, at the police station.  There is no doubt in my mind apart from that you were a trespasser and you had no right to enter the warehouse and you knew this as you had constructively left your employment by your absence since early July 2011. 

25.The evidence of PW1, PW2 and PW3 is formidable, overwhelming and mutually corroborative of your guilt.  I rejected your explanation, of course and allowing for the fact that you bear no onus to proof, I do find the prosecution case is proved beyond all reasonable doubt and you are convicted.

Please refer to CACC173/2012 for the relevant appeal(s) to the Court of Appeal.