HKSAR v. Mohammad Farooq

DCCC 344/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 344 OF 2013

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Reasons for Verdict

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1.The defendant has pleaded not guilty to one charge of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200.

2.The particulars are that he attempted to enter as a trespasser part of a building known as the 12th Floor, Elegance Court, No. 325, Sai Yeung Choi Street North, Mongkok, with intent to steal therein.  The offence date was 30 December 2012.

3.The prosecution say he rang the doorbell long enough that when there was no response, he tried to open the door with keys in his possession to steal from within.  The issue is whether he did attempt to enter by unlocking the door with a key.

The prosecution’s case

4.Miss Deng Xiaohong, PW1, lived alone on the 12th floor of Elegance Court.  There was only one unit per floor.  She leased the flat in October 2012.  She was given keys to the flat including two keys for two locks on her front door.  In any event, she changed the locks when she moved in, both locks.  She only gave a spare set of keys to her boyfriend, not the management company.  No one but her and her boyfriend should have had keys to her front door.  The keys the management company possessed would not have fitted her new locks.

5.Sometime after she changed the locks, she realised that a necklace and some cash had been taken from inside her flat. There was no break in so she assumed someone had used a key to gain entry.  She then changed the upper lock for a second time, this time buying a better quality lock. 

6.In her building there was a security guard posted to a Security Room next to the lift on the ground floor.  There was a guard day and night in two shifts.  She recognised the defendant as a night watchman.  She saw him at least four to five times a week when she came home from work.  There was no challenge to the prosecution’s evidence that the defendant worked as a relief night watchman from 25 June to 27 August 2012 and 21 October to 18 December 2012. 

7.On the night of 29 December 2012, the permanent watchman, PW3, asked the defendant to work the shift on his behalf.  Ms Deng gave evidence that she returned home at about 8 pm on 29 December.  She did not see any security guard before she entered her flat.  She went to bed at about 11 or 12 pm having secured all her locks.  At about 1 am, she was awoken by the sound of her doorbell being pressed continually.  She got up and looked through her peephole without turning any lights on.  She saw it was the defendant outside with his arm raised, obviously pressing the bell which was to the right of her door.  She then saw him getting some keys out of his pocket. She heard a key being inserted into the lower door knob lock.  She heard it click open and unlock.  She saw in the dim light of her living room that the button of that door knob lock clicked out at the same time.  It was not pitch-black as she had left her toilet light on.  She became scared and went into the kitchen and called 999.  The police that came responded to a call of burglary in progress.  PW1 said within 2 minutes the police arrived. 

8.After she made the call to the police, she went back to the door and heard the sound of keys being inserted in the upper lock of her door but they were unable to unlock it.  This was the lock she had changed again for a second time.  She then received a call from a police officer asking her for a code to open the gate of her building.  The police then came up to her floor and she opened her door to them when they showed her their warrant cards. 

9.She said the police caught the night watchman, the defendant on the stairwell of the 13th floor.  She was sometime later taken out to the stairwell to identify him and she did identify him as the man who had attempted to unlock her door locks with keys.  She also witnessed the police try to unlock her door with keys they had and they successfully unlocked one of the two locks, the lower door knob lock.  They later also tested her word that she saw him take out keys, heard a key being inserted into the lower lock and then heard the lock spring open as well as seeing the button pop out. They too saw and heard what she saw and heard through her peephole and door. She did not see the police take any keys from the defendant himself.

10.PW2 was a clerk of Fai Tak Development Company Limited who rented the 12th floor to PW1.  She confirmed the defendant worked there as a relief night watchman.  Her evidence was he would not have had access to any keys of any of the flats. 

11.PW3 was the night watchman who arranged for the defendant to work his shifts when he was not available or travelled home.  PW3 no longer works there. 

12.PW4 was the arresting officer, police officer PC8033.  He was with his team in EU26 vehicle and responded to a call of “Burglary in Progress”.  He and a colleague went directly to the 12th floor. His colleague knocked on the door and PW1 answered.  PW4 saw a smoke door to the stairwell and entered it.  There he saw and stopped the defendant on the stairs between the 12th and the 13th floor.  He saw a bunch of keys in the defendant’s right hand.  PW4 asked the defendant what he was doing there and got no reply.

13.PC8296, PW5, joined him on the stairs.  PW4 took the keys from the defendant’s hand before he searched his person.  He gave those keys to PW5 and they are exhibited as P2 and P2A.  PW4 found three more bunches of keys in the defendant’s jacket pocket, Exhibit P3.  Nothing else suspicious was found.

14.After the search, the defendant told the police officer that he was a security guard of the building.  He spoke in Cantonese. PW4 asked for the defendant’s security guard identity guard.  The defendant said he did not bring it out or have it on him.  He was taken back to Mongkok Police Station.

15.PW5 left the defendant with PW4 after the search on him was completed and took the bunch of keys the defendant was holding in his hand back to the 12th floor flat.  He shut the door and tried every key of the bunch in the locks of the door.  One key opened the lower lock and was exhibited as P2A of P2.  PW5 later put a white label sticker on that key to identify it from the rest.  Photos of that key can be seen in the agreed photo album, P1, specifically photo 22 and 23.  The bunch of keys, P2, can be seen in photograph 21.  PW5 then told PW4 of the result of him testing the bunch of keys in the locks of the 12th floor flat.  PW4 then arrested the defendant and cautioned him.

16.Another police officer, PW6, interviewed the defendant by way of a video-recorded interview with the assistance of interpreters the next day from 1834 to 1903 pm.  The interview was exhibited as P4, 4A and 4B and was not challenged.  Another officer, PW7, interviewed the defendant again on 31 December between 4.07 pm and 5.31 pm.  This interview was exhibited as P5, 5A and 5B and not challenged. 

17.PW7 also took all four bunches of keys found on the defendant back to Elegance Court and tried every key in every lock of that building.  The only key able to open a lock was P2A which he confirmed open the lower door knob lock of the 12th floor flat belonging to PW1. 

18.The prosecution produced both interviews of the defendant, P4 and P5.  The voluntariness of each interview was not an issue. 

19.In Exhibit P4, the defendant denied he went to the 12th floor at any time that evening and also denied he rang any doorbell of any flat.  When the police stopped him, he was patrolling the 13th and 14th floors.  He told the police that all four bunches of keys, Exhibit P2 and P3, were picked up by him collecting rubbish in Kwun Tong the day before.  He had forgotten they were in his pocket.  He denied he used any one key to open a lock to the door of the 12th floor flat. 

20.In Exhibit P5, the second video-recorded interview recorded the following day, the defendant admits he lied in his first interview.  He said he did go to the 12th floor and did ring the doorbell three times at around 1 am.  Earlier at about 10.30 pm, a man had entered the building and told him he was going to the 13th floor.  The defendant did not ask this man his name or purpose in the building.  He noticed the lift stopped at the 12th floor, not the 13th floor.  Two-and-a-half hours later, the defendant thought he would go and check around the 12th floor.  He went there and saw a light on in the premises and rang the doorbell.  When no one answered, he turned the door knob a few times.  He said he did not insert or use any key in the locks.  He then left and entered the stairwell to walk up to the 14th floor.  He later saw a police officer on the stairs and called down to the officer.  He reiterated that he picked up the keys from the rubbish collection shop he worked in during the day in Kwun Tong.  He did not know why one key could open the lock of the 12th floor door nor did he use that key to open the lock. 

21.In relation to his two very different accounts of his movements that night in his records of interviews, he told the second interviewing officer that he did say to the first interviewing officer that he had not gone to the 12th floor that night but that “Today it came into my mind that I went to the 12th floor”, that is counter 989 of P5.  He explained that he did not tell the truth in his first interview but was telling the truth now in his second interview, that is counter 997 of P5.  After this revelation, he basically refused to answer any more questions.

The defence case

22.The defendant elected not to give evidence.  It was put to the relevant prosecution witnesses that he did not insert any key into any of the two locks of the 12th floor flat.  Not only did he not insert any key, the lock did not click or pop open.  It was put to PW1 that what she actually heard and saw was the door knob being turned a few times as if someone was checking if the door was open or not.  She only assumed that the noise she heard was the lock itself. 

23.It was put to the police that the defendant was not holding a bunch of keys, Exhibit P2, but that all four bunches of over 70 keys were all in one pocket.  It was not challenged that he was in possession of all these keys, nor that one of the keys could open the lower lock of the 12th floor flat.  The issue is whether or not the defendant did unlock one lock with a key in his possession.  It is a narrow issue.  The prosecution have to prove all elements of the offence beyond reasonable doubt, the defendant has nothing to prove. 

24.The defendant did not give evidence but relied on the explanation of his second video-recorded interview.  The failure of the defendant to give or call evidence is no evidence of guilt.  It proves nothing one way or the other.  The consequence of doing so is to leave the prosecution case, enjoying the advantage of not being undermined, contradicted or explained by any testimony from the defendant. 

25.As I have said above, the issue to be determined is a narrow issue.  The defence do not seek to argue that even if I did find the defendant inserted a key into a lock and successfully opened it, that is not sufficient evidence to prove beyond reasonable doubt an attempt to enter as a trespasser with an intent to steal from therein.  The law in relation to this offence in this case is narrowed down to the facts.  Only facts are in dispute and only one material fact, that is the issue identified.  This issue depends on the credibility of PW1, Ms Deng.

26.I will refer to the defendants two conflicting versions of events set out in his two records of interview.  Defence counsel rightly submits the fact it is proved and admitted the defendant lied to the police is not proof of guilt.  It is not probative evidence of guilt.  It is sufficient for me to remind myself of this and repeat that the burden of proof lies with the prosecution to a standard of beyond reasonable doubt.  Lies usually only affect credibility.

My findings

27.I considered defence counsel’s final submissions and the evidence of all prosecution witnesses, specifically PW1’s.  The others were not materially contentious.  Defence counsel seeks to cast doubt on PW1’s evidence and submits her evidence prejudicial to the defendant is based on assumptions, not facts.

28.I saw no reason for PW1 to exaggerate her evidence or indeed effectively frame the defendant.  She gave clear answers under cross-examination.  She clearly saw the defendant take keys out of his pocket.  Then she heard a sound of a key being inserted into her lower lock. That is not an unusual or rare sound that would be hard to identify.  She then saw and heard the lock click or spring open.  She saw the button of the lock pop open.  I believed her evidence.  The fact the police found a key on the defendant that could open that lock only supports her evidence.  I found her to be a good witness who did not waiver in her certainty that the defendant unlocked a lock with a key which caused her fear and prompted her to immediately call the police.  There were no material discrepancies in her evidence that were serious enough to cause me to doubt her credibility of reliability.  I accepted her evidence in its entirety.

29.There were no issues with the arrest of the defendant and no challenge to the exhibits seized, the keys found in the defendant’s possession.  When I considered the evidence of the prosecution in its totality, I am sure the defendant was seen by the victim, the tenant of the 12th floor flat, ringing incessantly on her doorbell at about 1 am.  She did not respond and waited to see what he would do next.  I am sure once he thought there was no one at home, he tried to gain entry to her home with keys in his possession. 

30.I am sure he opened one lock with a key and then tried to open the second lock.  His actions can only be interpreted as an attempt to break in or gain entry as a trespasser.  I need not concern myself with how he had a key that could unlock PW1’s lower lock.  The fact is he did and did use it to unlock it.  The only reason he would want to gain entry, having established no one was at home at 1 am, was to steal from therein. 

31.I can draw the irresistible inference from the evidence this was his intent.  The fact no fingerprints were found on the door or the bell is not fatal, neither here nor there in the circumstances of this case.  I totally reject the defence case that he went to check on the whereabouts of a stranger that had gone to the 12th floor some 2 hours beforehand.  I reject the suggestion he only rang three times on the doorbell and turned the door knob to see if it was secure.  Why would he wait so long if he thought the stranger was suspicious? 

32.When I consider the fact he had a key to open a lock and the explanation he gave the police of it being a coincidence that one of the keys he salvaged as rubbish could unlock this door that he happened to appear before looking for a stranger, I reject that possibility outright.  Such a coincidence is far‑fetched and I am sure his explanation a concoction. 

33.After careful consideration of the evidence and the defence submissions, I am sure the prosecution can prove beyond reasonable doubt that the defendant did attempt to burgle these material premises.  I am satisfied the prosecution has discharged its burden and I accordingly convict the defendant as charged.   

Please refer to CACC406/2013 for the relevant appeal(s) to the Court of Appeal.