HKSAR v. Magar Abir Serpaja

DCCC 688/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 688 OF 2012

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REASONS FOR VERDICT

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1.D1 pleaded not guilty a charge of burglary. The premises involved were unoccupied residential premises which were under renovation.

2.At about 4.30 pm on 16 May 2012, a Mr Wong Chor Hon (PW1) was working at the back of his garage when he saw an unknown male climb into the rear window of a flat at 1/F of no. 18/20 Ko Shan Road Hung Hom. He reported the matter to the police.

3.The police arrived  some time later at Flat B, 1/F, 24, Ko Shan Road, Hung Hom Kowloon, ( the premises) and, through a gap in the door, an officer claimed that he saw D1 inside the premises wearing a pair of gloves and holding a hammer in his right hand. After repeated demands D1 opened the door of the flat and was then arrested. A water pipe about 2 metres long had been cut from the wall of the flat and was found in the sink in the kitchen. The palm print of  D1 was found on the wall tile in the bathroom.

Prosecution Evidence

PW1 Wong Chor Hon – Eye -witness

4.At 4.30pm PW1 was working at a garage at the rear of Ko Shan Road, Hung Hom when he noticed a person climbing in to a building next to 22-24 Ko Shan Road ( the burgled premises) via a window on the first floor.  He became suspicious and called the police. He said that the building was empty and no work was being carried on there at the time. PW1 said that the police arrived about 10 minutes later.

PW2 Winsome Tang – Employee of building owner – s65 B Statement – Exhibit P4

5.The statement of PW2 Tang Wing Lam Winsome was admitted under s.65B of the Criminal Procedure Ordinance Cap 221. PW2 stated that she was a leasehold manager of Bonds Group which started to acquire  residential flats and street shops of the two 5-storeys tenement buildings at 18 -24 Ko Shan Road in July 2010. She stated that two gates at the ground floor of the premises have been locked since May 2012.

6.She stated that at 6.00 pm on 16 May 2012 she went to the scene and gave police officers the keys to the property. At 10.00pm she again attended and entered the burgled premises and saw that a water pipe measuring 2 metres in length had been cut off the wall in the kitchen.  She said that the loss to her company was about HKD50.

PW3 PC 33383 Dai Wai Man- Arresting officer of D1

7.PW3 was the arresting officer. He alleged that he had cautioned and questioned D1 at the scene.  The admissability of  alleged admissions by D1 were challenged on the grounds that D1 was assaulted and threatened. PW3 said that he spoke to D1 in punti and the D1 replied in “not pure punti”. D1 said he cautioned D1 before questioning him but admitted that he did not ask D1 whether or not he understood the caution. I took the view that as D1 might not have understood the caution I should exercise my discretion not to admit any alleged admissions made at the scene by D1 on grounds of unfairness.

8.PW3 said that at 1636 hours he was briefed by his superior about an incident at 18-20 Ko Shan Road. PW3 said he arrived at 1640 and told to guard the service lane at the rear of 26 Ko Shan Road with another officer to seal off that service lane. PW3 said that a representative of someone from the Bonds Group, PW2, arrived later and gave the officer keys to 18 to 24 Ko Shan Road and they went to look around  inside the premises.

9.PW3 said that PC59591 informed his team that  there were suspicious sounds coming from 22-24 Ko Shan Road and he went to that location to assist that officer.

10.PW3 said when he arrived at the flat he saw the iron gate was open and the metal rod of the iron grill was damaged and abandoned as shown in photograph 2 of Exhibit 3. PW3 said photo 2 leads to Flat B, 1/F, 24 Ko Shan Road. PW3 said the metal door was as shown in the photograph 2 and photograph 4 shows the wooden door which opens inwards, the wooden door was closed but not locked but the security latch was on on the inside of the door. PW3 said he was able to open the wooden door to see inside and he could see D1 standing in the corridor inside . PW3 said that the wooden door had lots of dent marks on it. PW3 said that he tried to use the key he found to open the wooden door but he found that it was not locked and he could push it open with his hand. PW3 said that D1 was standing on the corridor wearing labour gloves, Ex P5, and he was holding a hammer, Ex P6. PW3 said that he shouted police and said open the door or else they would break in. PW3 said that at that moment he heard someone say that a man was climbing out of the window. PW3 said he again asked D1 to open the door. PW3 said the defendant put down the hammer and walked to the door, nothing was said at that time.

11.PW3 said that D1 was close to the wooden door  and opened it. PW3 said he entered the flat and started to investigate .  PW3 said at that time the hammer was on the floor. He said he saw the defendant put it there.

12.PW3 said that he then arrested D1 for burglary and cautioned him.

13.PW3 said that photographs 19 and 20 show the waterpipe. In the sink of photograph 20 there were sports shoes. PW3 said he found a pair of red-handled cutters, P7, in the toilet of the flat. PW3 said he gave the gloves worn by D1 to PC10198. PW3 said that the water pipe had been completely detached from the wall of the kitchen as shown in photograph 17.

14.PW3 said he later took D1 back to the police station.

15.PW3 agreed that D1 was cooperative at the scene.

16.PW3 said he saw D1 was wearing gloves when he entered and he wore them until PW3 removed them from him.

17.PW3 denied both doors were closed and they banged on the iron gate and asked the person inside to open up. PW3 agreed D1 opened the wooden door but disagreed that the iron gate was stuck. PW3 said that D1 was wearing gloves and he was holding a hammer. PW3 said he did not tell him to put on the gloves. PW3 said the police officers did not break in to the premises.

18.PW3 denied that the defendant told him the gloves were not his

PW4 DPC 33232 Interviewing officer – Interview tape P10, P10A

19.PW4 said he drew the sketch exhibit P2 on 16 May which was the day the defendant was arrested. PW4 said he made the sketch that evening around 10.00pm. PW4 said the premises drawn show the first floors of 18 to 24 Ko Shan Road. PW4 said that between the first floors of the buildings 18 to 24 there is a podium.

20.PW4 said that there were windows open at the back and sides of both buildings.

21.PW4 said he did not go to the rooftop of the buildings.

P10 Record of Interview

22.D1 said that he had gone to the premises with his friend Nikhil (D2) by taxi to get an air-conditioner (104). D1 said that D2 was a friend he had met at  a game centre when playing games. He said that D2 was Indian and he did not know his full name (179).

23.D1 told the police that when they arrived at the premises by taxi D2 went to the front door and told D1 that he could not open the front door  and said  “let’s go to the back door”. (637). D1 said he did not see that the front door was chained up. D1 said that they went to the rear of the building and D2 climbed in through an open window and threw down a ladder for D1 to climb up to the window. D1 said that D2 first told D1 to take the air conditioner but when they got to the premises D2 told him keep the water pipe also. D1 said he did not know who the water pipe belonged to. D1 said that he did not see how D2 got the water pipe. D1 said that there was a time that he and D2 were separated for about 15 minutes (771). He said it was around the time D2 got the ladder for him (771).

24.D1 said that before the police arrived he and D2 were in the premises doing nothing (899 and 905). He said they stayed there doing nothing for 1 to 1.5 hours (951). D1 said that the police arrived and started banging on the door and D2 ran and climbed out of the window (981) and after that he heard persons shouting that they were CID and he opened the door (985-992). D1 said he did not run because he felt he did not do anything wrong (1038). D1 said at 1082 that D2 told him to go into one of the rooms and stay inside and lock the door. D1 said that D2 was in the bathroom and ran out of there which is when he saw that room (1309). D1 was shown a hammer recovered by the police from the scene. D1 denied having possession of the hammer. D1 was shown the red-handle cutters found  inside the bathroom of the premises, P6. D1 said that D2 had the hammer in his back pocket (1174). D1 was shown some gloves found at the scene. D1 said that the police put those gloves on his hands (1197). D1 said that the shoes seized by the police at the premises belong to D2 who had taken them off.

25.D1 claimed that for over an hour he did not pay attention to what D2 was doing  because D2 had closed the door (1318 -1330). D2 said that he did not know who was the owner of the flat (1336).

Evidence for the Defence

26.The defendant elected to give evidence. He told the court that he is aged 36. He said he is from Nepal and he came to HK in 1995. He said that he lives with mother and three sisters in Shanghai Street, Yaumatei.

27.D1 said he has known D2 for  about 3 years when they met at an Amusement Games Centre (AGC) in Yaumatei. D1 said he met him once or twice in a month in the same AGC.

28.D1 said he did not know anything about D2. He said that they played video games together on two different adjacent machines. D1 said he called D2 Nikhil and D2 he called him  Abir.

29.D1 said that on 16 May 2012 he met D2 at the AGC in Woo Sung Street Jordan at around 1.00pm. D1 said he was working as a part time worker as a transportation worker. D1 said he did not work that day.

30.D1 said D2 asked him to go with him to take an air conditioner when they were at the game centre around 1.00pm. D1 said that he agreed to help him. D1 said that they boarded a taxi and he took him to Ko Shan Road.

31.D1 said that they boarded the taxi at about 3.00pm. D1 said he boarded a taxi with him to go to To Kwa Wan. D1 said that he had never been there before and he was not familiar with that place. D1 said the journey took around 15-20 minutes.

32.D1 said that when the taxi arrived D2 got out first and he followed him. D1 said that D2 went to a place behind the building where they were arrested. D2 was shown P2. D1 said he did not read Cantonese he can speak only a little English.

33.D1 said that D2 went to the back of 18 to 20 at first. D1 said that the taxi stopped in front of  and almost between the two buildings 18 to 24 Ko Shan Road.  D1 said that D2 got out first and he followed him straight round the back of the building.

34.D1 said that at the back of the building there was a door to 18 to 20 Ko Shan Road which was open. D1 said that D2 went in and called D1 inside and he asked him to close the door which he did. D1 said that D2 asked him to stay there and D2 climbed on to a pipe and reached up to the first floor. D1 said that he did not know where D2 went.

35.D1 said he waited on the ground floor for about 15 minutes and then through a window on 1/F o 18 Ko Shan Road  D2  passed him a ladder. D1 said that D2 told him to climb the ladder. D1 said he told D2 he could not go in but D2 forcefully pulled him inside through the window. D1 said that there was no one inside the unit.

36.D1 said that D2 then left that room of the flat and told him to wait inside 18 A. D1 said that he waited there around 15 minutes and then when D1 did not return  he went to look for him. D1 said that he went up three of four floors calling out for D2. D1 said that the stairs are outside the flat. D1 said he left the flat at the front and went up three of four floors. D1 said he met D2, he could recall where exactly, maybe the third or fourth floor. D1 said that D2 asked him to collect the waterpipes and keep them in one place. D1 said that the water pipes were on the floor, they were short in length and there were 5-6 pieces.

37.D1 said D2 walked away for about 2 minutes and then came back and told him to run away. D1 said that at that time he remained inside the flat at 18A on the third of fourth floor. D1 said that when D2 came back he looked panicky. D1 said that he ran after D2 and they ran on to the top floor which is an open area and then went to the burgled premises where he was arrested. D1 said the rooftops were connected. D1 said that they ran to the ground floor of 22-24 at the front and then they came back to the first floor. D1 said he followed D2, they were together and they then went to the first floor. D1 said that the iron grill and the wooden door to the 1/F were open.  D1 said that once inside the flat D2 locked both iron grill and the wooden door. D1 said D2 closed the door and there is a door knob which locks from inside. D1 said D2 kept him in one of the rooms adjacent to the living room in P1  and asked him to wait there. D1 said that D2 walked out of that room closing the door and between long gaps he came twice to see him. D1 said that he remained there for about  one and a half hours. D1 said when he tried to talk to D2 but  D2 told him to keep quiet. D1 said that he then wondered why he did not come back and he later found D2 was in the toilet sleeping, sitting on the commode. D1 said he woke D2 up and after some time there was a knock at the door as soon as he woke up D2. D1 said that he was aware that somebody wanted to come into the flat. D1 said that D2 then left the building via the window of the kitchen toilet shown in photograph 18.

38.D1 said he then heard a voice calling out CID. D1 said that he told them would open the door and he opened the wooden door but could not open the iron grill. D1 said that he saw an officer hitting at the iron grill using a hammer and damaging the grill. D1 said that that he could not recall how many police officers there were. D1 said  the officers could not open the grill and he was told to stand against the wall with his hands up. D1 said he was not wearing gloves when the police arrived. D1 said he never had a hammer with him. D1 said that the CID forcefully put the gloves, P5, on his hands. D1 said that P6, the hammer was the one brought by the police and they used it to hit the grill. D1 said it did not belong to him. D1 said he was later taken back to the police station. D1 said he never attempted to steal anything whilst in the building. D1 said he never saw D2 trying to steal anything.

39.D1 said that when D2 told him to run he did not know that the police had arrived at the building. D2 said there were persons downstairs so he said run.

40.D1 said he did not know he was doing anything wrong. D1 said when D2 told him to run then he thought D2 had done something that was not right. D1 said he did become fed up waiting in the room for an hour and a half. D1 denied he was hiding from the police. D1 said he did not ask D2 why they were waiting there. D1 said that when he asked D2 about the police D2 told him to keep quiet.

41.D1 said he did not go anywhere else in the flat. D1 said that  he did not go into the kitchen except when he woke up D2. D1 said he was not aware of the pipe being removed in the kitchen. D1 said the police did force their way in to the premises. D1 said that he did not know they had keys to the premises. D1 said that he noticed the cutter, P5, in the rear pocket of D1’s trousers when they entered the building. D1 said that the ladder he had climbed up to access 18 to 20 Ko Shan Road  was left outside the  building.

Directions

42.I reminded myself that the prosecution are required to prove the guilt of the defendant beyond reasonable doubt, the defendant has nothing to prove.

43.I reminded myself  that if I were to disbelieve what the defendant said in his record of interview or his evidence that does not mean he is guilty of the offence.  I have to consider the evidence I do accept and decide if that satisfies me of the guilt of the defendant to the required standard.

44.I reminded myself that where a court relies upon circumstantial evidence, the facts upon which the inferences are to be drawn must be established beyond reasonable doubt and inferences drawn from such facts must be the only inferences that can reasonably be drawn, they must be irresistible.

Evaluation of the Evidence

45.It was not disputed that at about 1630 on  16 May 2012 PW1 saw a man climbing in through a first floor window at the rear of the building next to 22-24 Ko Shan Road. PW1 was suspicious and called the police who arrived about 10 minutes later.

46.The statement of  PW2, a leasehold manager  for the Bonds Group which own the 5 storey premises from 18 to 24 Ko Shan Road, was produced as P4. PW2 stated that the two gates on the G/F of the premises have been locked since 2 May 2012. PW2 stated that on 16 May 2012 she received a call from the police who informed her that it was suspected that thieves had entered the premises and she arrived at the premises at about 1800 hours. PW2 stated that she gave the keys to the premises to a uniformed sergeant at the scene. PW2 said that at about 10.00pm she entered Flat B, 1/F, 24 Ko Shan Road to inspect the flat and saw that a water pipe measuring about 2 metres in length had been cut off. She stated that her company would suffer a loss of HKD50.

47.PW3, the arresting officer of D1, said that he arrived outside the premises at about 1640 and he and another officer were told to guard the service lane at the rear of 26 Ko Shan Road. He said that after a representative from the owners of the building arrived and gave keys of the premises to a police officer they went into the building to look around inside. PW3 said that a member of his team had informed him about suspicious sounds coming from inside 22-24 Ko Shan Road so they went to that location.

48.PW3 said that when they arrived at Flat B on 1/F the iron grill was open and the metal rod of the grill was damaged. PW3 said that the wooden door of the flat was closed but not locked and he was able to open the door only partially as there was a security latch fastened on the inside. PW3 said that through the gap he could see D1 standing in the corridor wearing gloves, P5,  and carrying a hammer, P6. PW3 said at that time he heard someone shouting out that there was someone leaving the premises via the window. PW3 said that he shouted to D1 to open the door or the police would break in. PW3 said that D1 put down the hammer and opened the door. He later arrested D1.

49.I have set out above a summary of what D1 said in his record of interview, P10, and a full record of his evidence. D1 claimed that he had gone there with D2, a man he had met in a game centre three years previously.  He said he did not know much about D2 and did not know his address. He said that D2 had asked him to go to the premises to assist him to remove an air conditioner. He said that D2 was weak. He said that they went to the premises by taxi and when they arrived D2 said they would have to go round the back to gain access. He said that D2 climbed through a first floor window of an adjacent premise and later handed down a ladder to him to climb up into the premises.

50.D1 stated he was reluctant to go into the premises but  D2 pulled him up the ladder. D1 said he spent some time on his own  in the prmises at 18-20 Ko Shan Road before going up the stairs to look for D2. He said that when he found D2, D2 asked him to collect some waterpipes and keep them in one place. He said that D2 left for a few minutes and then returned looking panicky and told him to run away. He said they then made their way to Flat B where he was later arrested. D2 claimed to have spent one and a half hours inside a room at Flat B on his own as instructed by D2. He said that when he found D2 he was in the bathroom asleep sitting on the toilet.  D1 said that when they became aware of  persons wanting to enter the flat, D2 left via the window in the bathroom and he remained in the flat.

51.D1 claimed that the police forced their way into the flat and that at he was not wearing gloves or holding a hammer when the police were looking into the premises.

52.There was no dispute that a 2 metre-length of piping had been cut from the wall of the bathroom and that a red-handled pair of cutters, P7, were found on the floor of the bathroom. D1 said that he had seen these earlier in the rear pocket of the trousers worn by D2.

53.There was no evidence to suggest that D1 was not of sound mind.

54.I found PW3 to be a reliable and credible witness and I accepted his evidence. I was sure he had the keys to the premises and did not force his way inside in the manner described by D1. I was sure D1 was wearing gloves and holding a hammer when he was seen by PW3 inside the premises.

55.I did not believe the evidence of D1. I found his evidence incredible. I did not believe that he felt he did nothing wrong.   He claimed that he had gone to the premises to assist D2 in moving an air conditioner. He said he had gone to assist because D2 was weak. D2 told the police that D2 told him he could not open the front door so they went round the back and  D2 gained access via  a first floor window. Even if  I had accepted what D1 told the court as to why he had gone there, this should have caused D1 to realize there was something very suspicious about what was taking place. D1 then makes the ludicrous suggestion that when D2 reappeared from inside the premises with a ladder and he when refuses to enter the premises, D2 somehow manages to pull him into the premises via the first floor window. I did not believe that D1 thought he was doing nothing wrong.

56.I accept that D1 did not try to escape from the premises as D2 . I believed the evidence of PW3 that at about the time they saw D1 inside the premises someone shouted out that there was a person climbing out of the window. Both D1 and D2 had remained at the premises doing nothing for some time whilst the police were outside making enquiries.  I was sure that D1 was aware of the persons outside premises and that is why they had not tried to leave.

57.Having considered the totality of the evidence, I was sure that the defendant had entered the burgled premises with D2 intending to steal property from within. I was sure that the prosecution had proved the charge against D1 beyond reasonable doubt.

Please refer to CACC437/2012 for the relevant appeal(s) to the Court of Appeal.