HKSAR v. Yip Chun Chung

DCCC 283/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 283 OF 2013

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Reasons for Verdict

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1.The defendant denies Charge 1, attempted burglary.

2.The prosecution called five witnesses, PW1 to PW5, to give evidence in court.  There are prosecution Exhibits P1 to 10 including supplements.  P6 is a post-record; P9 is a video recorded statement. Both are admitted to be voluntary statements.

3.The prosecution allege that the defendant tried to open a window of the 1st floor of the building in question while he was on the roof of a ground floor structure there.

4.PW2 and PW3 are two police officers who say they saw the defendant’s act.  PW1 is an Assistant Hawker Control Officer.  He was the one who led the two police officers there after earlier seeing the defendant move on that ground floor roof.  He did not see the defendant ever tamper with any window there.  PW4 was a police officer who later searched the rooftop of that structure and found a shovel underneath the window in question.  PW5 was the officer who took the video recorded statement, P9, from the defendant later that night.

5.The defence case is that the defendant never tampered with any window there.  He told police during the investigation that he was just looking for a “Yun Dan Chai”, a pellet of drugs, which he earlier had flicked onto the roof of the ground floor structure because at that time he saw some police officers approaching him at the rear lane in question.

6.PW1, Mr Chan Kai-yiu, is an Assistant Hawker Control Officer.  That day he was on duty nearby.  A member of the public tipped him off and led him to the rear lane.  Mr Chan went to the lane and stayed at the spot marked by a red circle on Photo 2 of P2.  There he saw the defendant coming out from the red crossed space between the two buildings (see Photo 8 of P2).  The defendant moved slowly on the roof of that ground floor structure from right to left, all the time bending his upper body and was looking down and sideways as if he were looking for something on the roof.  PW1 so demonstrated in court.  PW1 says the defendant slowly moved to the spot marked by the red square on Photo 4 of P2.  At that juncture, PW1 left his observation post to look for police officers nearby.  The two police officers, PW2 and PW3, were just outside the lane. 

7.PW1 led the two officers into the rear lane. PW1 said at that time he was at the position marked by a red star on Photo 2 of P2 and from there he could see that the defendant had moved more to the left marked by the bigger triangle in the same photo.  The defendant now was moving in the opposite direction, i.e. from left to right, again bending his upper body and looking down and sideways as if he were looking for something on the roof.

8.According to PW1, the defendant moved a few steps to the right, i.e. to the position marked by the smaller triangle in Photo 2 of P2.  At that juncture, PW1 pointed the defendant out to the officers who were just on PW1’s left side.  The police immediately shouted at the defendant to order him to come down.  By then the defendant had further moved to the right by one or two steps to the spot now marked by a red arrow on Photo 2 of P2.

9.PW1 says on both trips the defendant had been moving very slowly and closely to the side where the windows were but the defendant never touched or tampered with any window.

10.PW2, PC14008, and PW3, PC14380, say something very different. 

11.PW2 says at the rear lane PW1, Mr Chan, pointed at the roof and PW2 immediately moved forward to make his own observation.  At first, PW2 said he was at the position marked by a black cross on Photo 2 of P2.  Later, he changed to say he moved further to the right by a few metres so that he was now between the two beige coloured cooling towers.  From there he could see the defendant moving out from behind the right beige coloured cooling tower and stop at the window in Photo 6 of P2.  PW2 says he saw the defendant use his fingers to pull the bottom left corner of the window.  The officer at first says there were clothes hanging in front of the window, but he later changed to say he was not sure about the clothes.  He says in any event he could see clearly of the defendant’s act.

12.The defendant was ordered to come down from the roof.  He was arrested by PW2 for attempted burglary.  Under caution the defendant said he went up there to look for a piece of Yun Dan Chai and his key.  This was recorded in PW2’s notebook as a post-record, P6.  PW2 understands that Yun Dan Chai refers to a kind of drugs.

13.The other officer, PW3, PC14380, says PW1 led him and PW2 to the rear lane.  He was behind PW2.  PW3 says he finally stood at the spot opposite to the black circle marked on Photo 4 of PW2, which means he was at that time a bit to the left of the left beige coloured cooling tower.  From his position he could see the defendant coming out from behind the right beige coloured cooling tower, walking slowly, body upright.  He says the defendant was looking at the windows on the side and the defendant finally used his right hand to pull a few times the bottom left corner of the window in Photo 6 of P2.  At that time his partner, i.e. PW2, was on PW3’s right at an arm’s length.  That officer, PW2, ordered the defendant to come down from the roof.

14.PW4, PC33225, was the officer who later got on the roof to investigate.  He found a shovel, P7, underneath the said window (see Photo 8 of P2).  He also entered the flat to which that window belonged, i.e. Flat 1A, 169-175 of Nam Cheong Street.  He found that the said window was closed from inside the flat.

15.PW5, DPC8627, was the officer who took a video recorded statement, P9, from the defendant that evening.  It was a voluntary statement.

16.In that interview the defendant said that that morning at about 10 am he had brought a pellet of heroin from a person called Ah Ming.  He passed the rear lane.  While he was on his way back home he saw two officers approaching him so he flicked the pellet of drugs onto the roof. After he had gone home, he later returned to the rear lane and ascended the roof in order to retrieve the pellet of drugs.  However, there were people around so the defendant decided to give up.  He had just been there for about 2 minutes.  He had done nothing else.  Yet he was arrested.  The defendant said the shovel, P7, was not his property.

17.After the prosecutor has closed his case defence counsel submits that the defendant does not have a case to answer on the charge of attempted burglary.  Counsel attacks the credibility of PW2 and PW3.

18.I rule that the matter commented by defence counsel is really a matter for the jury to decide.  I thus rule the defendant has a case to answer on the charge of attempted burglary.  The defendant elects not to give evidence.  There are no other defence witnesses but a set of photos, D1(1 to 67), and an annotation had been earlier admitted by agreement to show what one can see from various spots at the rear lane.

19.In his final submission, defence counsel again attacks the credibility of PW2 and PW3.  He says the two officers’ evidence is at huge variance with PW1 and PW1 should be regarded as an honest and reliable witness. 

20.I agree with defence counsel on this.  PW1 is a good witness, his testimony is clear and straightforward.  He is very observant and he is very descriptive of what he saw.  According to him, the defendant was moving on the roof, bending his body all the time, looking down and sideways as if he were looking for something on the roof.  The defendant never touched or tampered with any window. 

21.PW1 also says that when he returned to the rear lane with the two officers, the defendant was a bit on the right of the blue cooling tower-far from the spot between the two beige coloured cooling towers, where the two officers say the defendant was there, i.e. between the two beige coloured cooling towers at that time.

22.Obviously, PW1’s version is in stark contrast with that of PW2 and PW3.

23.Although PW2 and PW3 adamantly say they saw of defendant’s tampering act but it is quite apparent from the photos that from where they say they were standing it would not be easy for them to see that clearly, or at all.

24.Under cross-examination, PW2 changes his evidence to say he was positioned more to the right.  He shifts himself for quite a distance, by a few metres, to make his observation evidence to appear more credible, but that only creates an inconsistency with his earlier evidence and also an inconsistency with his sketch, P1.

25.Both officers are asked if the defendant moved with a bending body and they first say they cannot be sure, but it is pointed out to them that they cannot be unsure of this when they say they saw the defendant’s act.  The two officers then change to say the defendant was all the time standing upright, never bending his body.

26.In the aforesaid circumstances, I have to find these two officers, PW2 and PW3, incredible and unreliable. 

27.I find PW1 is a truthful witness, what he says is true and correct.  I accept his evidence including his saying that the defendant never touched or tampered with any window.  According to PW1, the defendant was bending his body all the time and looking down and sideways as if he were looking for something on the roof.  That is consistent with the defendant’s explanation given to the police that he was looking for a Yun Dan Chai, a pellet of drugs which he had flicked onto the roof earlier that day.

28.There is no evidence of any thorough search of the roof in question to say that there was no such pellet lying around there. Thus, the defendant’s explanation that he was up on the roof to look for that pellet and his key cannot be dispelled.  That explains why he was there and behaving in the way as PW1 describes in court.

29.I find that the prosecution have not proved the charge of attempted burglary against the defendant beyond all reasonable doubt.  The defendant is acquitted of that charge.

(J. Lam)  District Judge

Please refer to CACC225/2013 for the relevant appeal(s) to the Court of Appeal.