HKSAR v. Yati

DCCC831/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 831 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 section 11(1)(a) and (4) of the Theft Ordinance, Cap.210.

2.Rukini, PW1, was a domestic helper at Room 409, 4th Floor, Hong Tat Court, 10 Healthy Street Central, North Point.  She was employed by Lai Siu-hung, PW2, to care for her mother.  In October to December 2011, PW1 returned to Indonesia and PW2 employed you as a part-time domestic helper to care for her mother at the premises.  You were given a key to the wooden door and the iron grille, which you returned to PW2 on completion of your employment.

3.On 7 July last at about 1215 hours, PW1 and PW2’s mother were in the premises when someone rang the bell.  PW1 opened the wooden door but saw no one outside.  However, she did see a female at the lift lobby repeatedly extending her head and peering towards the premises.

4.PW1 then called PW2, who instructed her to take her mother to the ground floor and wait for her there.  PW2 then called the police.  PW1 then closed but did not lock the wooden door of the premises but closed and locked the iron grille.  She took PW2’s mother to the ground floor lobby.

5.Police arrived there at about 1730 hours and conducted a sweep.  About 1750 hours, PC2108, PW3, went to the 4th floor. There he saw you exiting from the premises.  You closed the iron grille and rushed into the lift.  He informed WPC11287, PW4, who was monitoring the CCTV at the ground floor.  PW4 saw you enter the lift, go to the ground floor and exit it.  PW4 then intercepted you outside the building.  PW3 identified you as the person who exited the premises.

6.Under inquiry you admitted living in Yuen Long. You claimed you were in the building looking for a friend whose address you did not know.  You claimed you had not entered the premises.  PW2 later confirmed you to be the former part-time domestic helper.

7.PC54284, PW5, confirmed the wooden door to be open and the grille closed, but not locked.  Nothing was missing from the premises.

8.Police lifted five fingerprints from outside the iron grille which matched the prints of your left palm, your left little finger and left ring finger.  PW1 last cleaned the iron gate the day before the incident. 

9.The prosecution case comprised six live prosecution witnesses and two sets of admitted facts, being exhibited as P4 and P5.  These were read into evidence under the provisions of section 65C of the Criminal Procedure Ordinance, Cap.221.

10.The latter produced two witness statements which were admitted into evidence in accordance with section 65B of the Criminal Procedure Ordinance, Cap.221, as P2A and its translation P2B, and P3A and the English translation P3B.

11.PW1, Rukini, was an Indonesian domestic helper employed at Room 409, 4th Floor, Hong Tat Court, 10 Healthy Street Central, North Point.  In October to December 2011 she told us she returned to Indonesia and someone she had never met replaced her until her return.  The flat has a wooden door and an iron grille, for which there are keys to each.

12.On the morning of 7 July last she had cleaned all parts of the iron grille and the wooden door using wet cloths.  At around 1215 hours, someone rang the bell.  She and the other lady she cared for were in the premises at the time.  She went to the iron grille and looked out but no one was at the door.  However, she saw a female inside the lift lobby extending her neck and looking.  She wore a black sleeveless vest and had red colouring in part of her hair.  She estimated her to be 20 to 25 years of age, or just over 25.  She was more or less the same height as herself.  She marked 4 to 7 of Exhibit P1A with an “X” to show the position by the wall. 

13.She reported to the old lady’s daughter, who was PW2.  As a result, she took the old lady to the ground floor where she met PW2 and her husband.  Later, the police arrived.  When she left, she closed but did not lock the wooden door but closed and locked the iron grille.  Later, on return to the flat, she found both doors open and nothing was missing.

14.She was cross-examined.  She disagreed that she had either not cleaned the iron grille that morning or that it was not cleaned properly.  She cleaned the parts one by one she said.

15.PW2, Lai Siu-hung, then gave evidence.  She said PW1 was employed to look after her mother.  She said that in October to December 2011 you had been employed to care for her mother at the flat.  You had been given keys, which you had returned when you left. 

16.PW1 had phoned her at about 1230 hours on 7 July, and as a result she called the police, and then she went to the ground floor of Hong Tat Court with her husband.  There they met her mother and PW1 at 1250 hours.  The police then arrived.  PW2 notified the police, then went to the flat alone.  She saw police officers there.  Both the grille and the door seemed to be closed.  A police officer opened the door for her.  There were no signs of ransacking.  Later her mother and PW1 attended to check and found nothing was missing.

17.She too was cross-examined by Miss See.  She confirmed there were other Indonesian helpers in the building.  In April there had been a burglary at the premises and no one was arrested for it.  She heard PW1 give a description to the police. 

18.PC2108 then gave evidence as PW3.  He and other officers arrived at the ground floor of the premises at about 1330 hours.  At 1340 hours he went up to the 6th floor and started to walk down the stairs.  At the door of the stairs on the 4th floor he looked and saw a woman who came out of Room 409 to the corridor, walked to the left and then took the lift downstairs. 

19.He said he saw her leaving Room 409, she walked out, and he saw her profile, she was facing him, facing the frame of the iron grille with her left shoulder to the corridor.  She was coming out obliquely. He saw her in between the two doors.  She was wearing a dark vest T-shirt, black pants and carrying a black messenger bag.  On the upper part of her right forearm there was a tattoo which seemed to be in the shape of a bat.  He said he believed her hair had originally been black but it had been dyed a little bit gold.  From his position he saw her slide the iron grille but did not lock it with a key.

20.Referring to Photograph No. 8 of P1A, he showed his position and view.  At the time half her body was inside.  She left 409 and went to the lift.

21.PW3 said that using his beat radio he informed WPC11287, who was at the ground floor, and this was after the woman went into the lift, and he gave the description to PW4.  PW3 then went back to Room 409 to find the wooden door ajar and the grille closed.  He did not know if the grille was locked or not.

22.At 1352 hours, PC54284 arrived to guard the flat.  PW3 then went to the ground floor to find WPC11287 and detain the woman whom he recognised as having walked from Room 409.  He identified you as that person.  He told you you were suspected of burglary in Punti and put a series of questions.  At this stage you were not cautioned. 

23.In gist, you said you lived at Yuen Long, had come to look for a  friend whose address you did not know.  You failed to reply when he asked you why you did not phone your friend.  You said you owed your friend $500 and she was called Elo.  You gave your friend’s telephone number as 94523617.  You said you had gone to the 4th floor to find her but did not know the number of the flat.  You said you had not entered Room 409 or any other flat in the building.  Two bunches of keys were found in your bag which you said were yours.  PW3 called the number given but there was no reply.  At 1500 hours he tried the keys at Room 409 but they did not operate the lock.  At 1510 hours he went back to outside the building and declared arrest on you.

24.Going back, he said he had been unable to intercept you before the doors of the lift had closed.  He identified Photo 1 of P1A as the person he saw.  That is a photograph of you.

25.He was then cross-examined.  He accepted he had been given a description of the suspect when he began the sweep of the stairs. He agreed when you turned into the corridor he did lose sight of you, but only for a few seconds.  He said he never asked the person why she came out of 409, that is you, but asked you if you entered as he wanted your explanation.  He disagreed he never witnessed you come out.  He also disagreed with your version of the questions and answers.  He confirmed the tattoo is on your right arm.

26.WPC11287 then gave evidence as PW4.  Basically what she said is this, that at 1350 hours she saw on the CCTV an Asian female in a black sleeveless T-shirt enter.  She received a message from PC2108.  She walked behind that female and stopped her.

27.She too was cross-examined.  She said she did not stop you as you emerged because she was checking on you. 

28.PC54284 gave evidence as PW5.  At 1350 hours he went to the 4th floor and guarded outside Room 409.  The iron grille was closed but the wooden door ajar.  He admitted the occupants later.  He used no key to do this.

29.There was limited cross-examination.

30.DPC10205 gave evidence as PW6.  He said he tried to open the iron grille from the outside but it was locked from the inside.  He inserted his arm and was able to turn the latch without a key.  He accepted it was difficult.  He drew a sketch, which was admitted as P6.  He also gave evidence of witnessing the lifting of the fingerprints referred to in the admitted facts.

31.He was then cross-examined.  He disagreed it would be even more difficult for a short person like yourself to open the door with your hand. 

32.At the request of defence, PW3 was then briefly recalled and disagreed he was in the lift lobby when you came to there.

33.P4, the admitted facts, confirmed that at 1905 hours on 7 July of this year three prints of the left palm, one print of your left little finger and one print of your left ring finger were found on the outside iron grille of Room 409.

34.Photo albums P1A and P1B were admitted.

35.The prosecution then closed its case.  In the case of any contrary submissions I found that you had a case to answer.

36.You, having had your rights fully explained by counsel, elected to give evidence but called no defence witnesses.

37.You gave evidence and you said you worked for three weeks at the flat, and before 7 July of this year you never went back to those premises.  You made friends there but did not know where they lived.  You were stopped by WPC11287 as you came out from upstairs.  You had gone there after calling a friend at about 11.00 am as you needed to get back money you had loaned to her.  That friend was called Elo.  Elo asked you to come and wait at the staircase between the 3rd and 4th floors.  This was between 1.00 pm and 1.30 pm, but you could not be definite about the time.  You said you went there around 12 noon to 12.30 pm, that Elo did not come, and you called her once on your mobile phone but the line was inactive.

38.At about 2.00 pm you went to the lift on the 4th floor to go downstairs.  You saw a man in plain clothes in front of the lift. It was PW3.  The lift came and you boarded, but PW3 did not.  There was another female in the lift at the time.  You got out and left the building.  The WPC stopped you.  Later, PW3 came and asked you questions and you gave answers. You said you never went into Room 409, nor did you press the doorbell, nor did you intend to steal.  PW3 asked you questions.  You said you never told him that you were there to pay $500 back to Elo, you were there to receive it.

39.You were then cross-examined.  You agreed when you loaned money to Elo you never asked her where she lived.  You said you could not go to the flat and you said that you did nothing to suggest meeting on the ground floor lobby, nor at McDonald’s.  You disagreed with the prosecution case as it was put to you.

40.Defence then closed their case.

41.Mr Kwok for the prosecution and Miss See for the defence made final oral submissions.  Those oral submissions have been taken fully into account when I reached my verdict.

42.I turn now to the verdict.

43.I made a concession, perhaps out of an excess of caution and, in fairness, it is very much in favour of you.  I have assumed that you are of previous good character as this was not referred to.  This was not a matter I could raise or ask.  The fact that you are still a domestic helper in Hong Kong does tend to suggest, though not conclusively, that you are a person of clear record.  Therefore, in my opinion, I felt it was better to err, if err I do, on the side of caution and on the side of defence.  I therefore gave myself the customary warning of a person of clear record’s propensity to commit the charge and veracity in giving evidence.  I warned myself to be careful.

44.Having said that, of course I note that if you are to be convicted the onus is squarely on the prosecution to prove each and every essential element of the charge beyond all reasonable doubt.  That charge is of course burglary.

45.My first impression overall is that the case against you is formidable indeed.  Having said that, I turn now to analyse the evidence presented.

46.You gave evidence and your case was that you phoned another Indonesian helper at around 11.00 am and made your way from Mong Kok to North Point to collect a debt of $500.  You knew that person who was named Elo lived on the 4th floor but you did not know her address.  You knew her telephone number and you were directed to meet her on the staircase between the 3rd and 4th floor at between 1.00 pm and 1.30 pm.  You arrived there at 12.00 noon to 12.30, phoned the missing Elo once, and walked up to the 4th floor, passing close to PW3, who made attempt to stop you or investigate as you entered the lift to leave.  You went down the lift building, where you were stopped by PW4 and then questioned by PW3.  You had some minor disagreements over the questions and answers, mainly as to whether you had come to collect a debt or to repay it.  You denied ever going anywhere close to Room 409 and maintained you had not entered that room.

47.I have to tell you that your version where it contradicted that of the prosecution witnesses was, in my opinion, not true. You did not present to me as a witness of truth.  The arrangements of which you spoke were loose and illogical.  I did not believe you would loan money to someone whose address you did not know as you claimed, nor leave it for 8 to 9 months to attempt to collect it.  It seemed also illogical and untrue for you to arrange to meet in such an odd location, the staircase between the 3rd and 4th floor. 

48.Your reasons for not going to Elo’s place of work was, in my opinion, patently untrue.  The reason you gave was that some employers did not like to see visitors to their helpers.  Why could you not then have just simply knocked at the door and received the money as you claimed, or indeed, delivered it?  If a meeting outside the flat was to be arranged, why not at a more suitable location, such as the ground floor lobby, or indeed McDonald’s?  If an employer did not want the helper to receive visitors at the flat, I ask myself is it likely she would be willing to allow them to leave their work place for such a purpose?  I think not.

49.If you were at the staircase between the 3rd and 4th floor, why would you walk up to the lift lobby on the 4th floor as opposed to the easier route down to the 3rd floor?  Why would you arrive some 30 to 60 minutes early for the meeting and wait for at least 1½ hours?  Why would you only call Elo once?  Surely if you needed the money from Elo you would have made more efforts to find her, for example, making inquiries of the security guard.  You never at any stage did this.

50.Also, the case clearly shows that PW3 had a broad description of the person he was seeking.  I do not accept or believe that a police officer would allow someone who fitted that description to stand next to him and then leave by the lift, as you claimed, that is without questioning that person.  Therefore, I deemed and found your version to be incredible and indeed untrue where it contradicted that of the prosecution witnesses. 

51.That of course is not the end of the matter.  I still have to look at the prosecution case to see if the standard of proof beyond all reasonable doubt has been attained.

52.It seems to me a very great coincidence that you would have returned to the very floor of the very building from a distance where you had been employed some months earlier for the first time when an incursion into those premises occurs. 

53.PW1 gave evidence and was little challenged. She answered the door to find no one there but saw a person of the same sex as you wearing a very similar dark vest, of similar age and with hair consistent with that in Photo 1 of P1A, and of the same height as yourself, looking at Room 409 from the position indicated.  Of course, she was unable to say or be sure it was you.  PW1 then left the flat with the elderly lady. 

54.PW3 patrolled the building, came down the stairs to the 4th floor, where he saw a female emerging from Room 409.  She was sideways with her profile towards him and emerging from between the wooden door and the iron grille.  He was able to describe her clothing, hair colouring and the distinctive tattoo we see in Photo 1 of P1A.  Even the bag we see accords with his evidence of observation.  The tattoo, in my opinion, is extremely important as being both large and distinctive and clearly in the shape of a bat as described.  He saw the female, who in my opinion is clearly you, slide the iron grille shut but did not lock it with a key.  The observation of you by PW3 was certainly no fleeting glimpse.  It was not obscured and it was clear.

55.You then went to the lift lobby.  He lost sight of you for a few seconds only but saw you inside the lift as the doors closed. He radioed the information and description to PW4, who observed you through the CCTV and intercepted you outside the building. 

56.It seems to me entirely logical that given the quick pace of events that PW4 would want to collect her thoughts, digest the visual and oral information she had received to be sure that she detained the right person.  This she did before stopping you.

57.PW5 guarded the door which had the wooden door ajar and the iron grille closed of Room 409.  PW3 went downstairs and questioned you.  I do allow for some slight possibility of misunderstanding because of the language difficulty but it is clear to me that PW3’s version was true and correct.  It is of little significance that he did not directly accuse you of entering Room 409 but asked if you had done so.  He was giving you the opportunity of giving your side of the story. 

58.Given the very high quality of the evidence of identification, I am satisfied beyond all reasonable doubt that PW3 observed accurately your exit from Room 409.  There is in my mind not the slightest doubt. 

59.This is further fortified by the clear evidence, that again I find true and accurate, that PW1 had cleaned the iron grille fully and properly that morning with wet cloths and that as the first admitted facts show, your fingerprints - that is the three left palm prints, left little finger print and left ring fingerprint - were found on the outside of the iron grille.  This is clear beyond all reasonable doubt.  I find therefore the only logical conclusion is that you had contact with that iron grille on that day. Clearly you did enter Room 409 despite your denials. 

60.PW6 spoke of how it could be done even with the grille locked without a key.  I note he was trying for the first time, and did in fairness find it difficult.  It could well be easier for a shorter person to reach in and up than for a taller person like himself.  Also, one must bear in mind that you had worked there for some three weeks and it is safe to assume you had intimate working knowledge of the latch.  It is therefore an irresistible inference, and I draw that inference, that you did enter by these means. 

61.We know there was no ransacking and nothing appears to have been taken.  Could you have entered with any intent other than to steal, that is entering the premises where you had been employed and where you were now clearly a trespasser?  Again, the irresistible inference is no.  I cannot conceive of any other reason that you would enter those premises other than to steal.  The fact that nothing was taken and there was no ransacking is indicative that you were perhaps unable to find anything to steal or that you were disturbed as you searched.  That is not for me to speculate.

62.Therefore, taking all the evidence together, it is formidable and I am satisfied beyond all reasonable doubt that you committed the burglary alleged, that you entered Room 409 of Hong Tat Court as a trespasser intending to steal from there, and therefore you are convicted.