HKSAR v. Md Emran Hossain

DCCC 492/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 492 OF 2014

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Reasons for Verdict

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1.The defendant has pleaded not guilty to one count of burglary.

2.The particulars are that the defendant entered a flat as a trespasser on 14 January 2014 at Room 34C, 2nd Floor, 32-44 Fuk Chak Street, Tai Kok Tsui, and stole from within RMB600.

3.The only issue in this case is credibility. Prosecution witnesses gave evidence of catching the defendant hiding in an empty flat on the same floor as 34C with tools and RMB600 in his pocket.  There was a fingerprint belonging to the defendant inside the flat found on a drawer.

4.The defence say and gave evidence to the effect that he was an innocent passer-by who was framed for this burglary.  Hence the only issue being one of credibility.

Prosecution case

5.The victim lived in Flat 34C, and on 14 January 2014, he left his home.  He left his windows open, but locked the iron gate with a padlock.  He went out about 8.30 in the morning.  At 11.15 that morning, PW4, a police officer, was on anti‑crime patrol inside this building when he heard noises of banging when he was on the 3rd floor.  He went downstairs towards the noise.

6.On the 2nd floor, outside Flats 34A, B and C, he saw a male inside Flat 34C.  This male inside Flat 34C had a dark complexion and was holding a hammer and a screwdriver.  He was from inside hitting at a padlock of the closed gate with those tools.  He watched this male for about 30 seconds, when the male suddenly noticed him standing watching several metres away.  When PW4 moved towards the male, he was spotted.  The male immediately closed the door.  There was a wooden door on the other side of the iron gate. When PW4 knocked on this door, no one responded or opened it.  PW4 then knocked on the door of 34B next door.

7.The sketch, Exhibit P10 and 10A, shows the proximity of the relevant flats on that floor, especially 34C and 38.  The tenant at Room 34B helped PW4 locate the tenant of 34C, and called him to return immediately.  That tenant, a Miss Hon Hui‑man, gave a statement, Exhibit P20, to the police saying she was woken up by very loud noises outside her flat.  She heard what sounded like someone trying to prise open a metal gate and kick it.  She was too scared to open her door.  Not long after, a police officer knocked on her door.

8.PW1, the victim and tenant of 34B, came home, but could not open his padlock because it had been damaged.  The police had to break it off with tools.  Once inside, clearly, it had been ransacked.  PW1 told the police that RMB600 he kept in a telephone book in a drawer had been stolen.

9.PW4 could see that the windows were open.  The male PW4 saw earlier hammering the padlock from inside was nowhere to be seen.

10.There was a police search of the floor above, and then of the empty unlocked flat on the same floor, when in a room inside Flat 38 PW3 and PW4 noticed a blanket and cloth covering something that moved.  PW3 lifted up the blanket with a truncheon, to find the defendant hiding underneath.  The defendant had tools in one hand.

11.PW4 recognised him as the male he saw inside Room 34C earlier hammering at the padlock.  He recognised his face and clothes.  The defendant put down the tools as ordered, and PW4 seized them. PW3 searched the defendant and found RMB600 in his front trouser pocket.

12.The defendant told the police officer he was sleeping there.  He did not admit he burgled Room 34C at any time.

13.The prosecution witnesses said not only was 34C’s windows open, so were Room 38’s.

14.The photograph 25 of Exhibit P17 shows the façade of the building clearly.  To identify the flats in the photographs taken from outside the building, a police officer, PW2, arranged for the curtains of Room 34C and Room 38 to be dangled outside the open windows.  They are seen on the third row of windows from the bottom of the photograph.  One can see a canopy under the windows that stretched from Room 34C to the edge of Room 36.  It stops just before the open window of Room 38.  The same opened windows and canopy can be seen in photographs 26 and 27.  The police assume the defendant climbed back out of Room 34C when he could not get out by the door and gate, and walked along the canopy, climbing into Room 38 to get away from Room 34C.

15.Room 38 was vacant, unlocked, with its windows left open.  Inside was a lot of abandoned furniture and belongings.  It was obviously uninhabited.  Photographs of Room 38 are seen in Exhibit P17, specifically photograph 15, which shows its open gate, followed by photographs 16 to 24.  Photographs 23 and 24 are of a room inside Room 38 where the defendant was found in the corner, covered up to hide and evade detection.

16.Photographs 4 and 5 of P17 show the closed door and gate of Room 34C, the burgled premises.  Photograph 6 shows the padlock and hinge broken by the police to gain entry.  Photographs 7 through to 12 show the inside of Room 34C, and photograph 10 clearly shows the wooden drawer where RMB600 was stolen from.

17.Exhibit P18 is the album of photographs of the RMB600 and tools the defendant had in his hand when found in Room 38.  The tools are exhibited as P5 to P7.

18.P19 is the Admitted Facts agreed between the parties, and specifically agrees the defendant’s right index fingerprint was found on a plastic drawer of a plastic cabinet inside Room 34C.

19.P23 is an additional Admitted Fact that the left ring fingerprint belonging to the defendant was found on the handle of P6, the hammer.

20.P21 is a witness statement of a forensic scientist who examined the tools, P5 to P7, the padlock, and the broken hinge still attached to it.  He opined the scratch marks on the padlock were not made by P5 to P7, but some other tool.

21.PW1, the victim, said he had a bag of tools inside Room 34C, as he was in the decoration business, and he discovered they had been moved and taken out by the burglar.

Defence Case

22.The defendant elected to give evidence, and alleges the police officers involved stopped him outside the relevant and material building.  They then took him up to the 2nd floor.  In Room 38 they made him touch all the tools, P5 to P7.  They also took him to Room 34C and made him touch doorknobs, window latches, and physically forced him to open and close a drawer.  He was beaten and kicked.  He suffered injuries.  His penis bled, but the police nevertheless went on to frame him for the burglary.  During his beating he fell to the ground.  He was kicked between the legs so hard his penis bled, and he hit his forehead on a wall after he was elbowed in the neck below his ear.

23.When taken to Room 34C, his hands were cuffed from behind and he was made to kneel in the gap between the bed and the wooden drawer.  He was made to face the bed.  He clenched his fists.  He was then hit hard on the ankles with a metal rod.  In a lot of pain, he unclenched his fists.  He was then lifted up off his knees, and the drawer was placed in his hands behind his back.  He was forced to open and close the drawer with his hands.

24.He was severely abused, believed his life was in danger and he was about to die.  When he was taken back to the police station, he did not tell the duty officer of his injuries or beating because the two police officers with him shouted at him not to talk.  He eventually saw a doctor when remanded in custody in Lai Chi Kok Detention Centre.  No medical report was produced.

25.The defendant explained that the RMB600, Exhibit P4, that the prosecution produced came from his wallet.  A friend from Bangladesh arrived in Hong Kong and had lent him RMB.  This was part of the loan.  The police seized it from his wallet, not his pocket, and it did not belong to PW1, the victim.

26.According to the defendant’s evidence, he was an innocent passer-by, targeted for his dark complexion, then framed for the burglary.  He was beaten to make him compliant and silent.

27.In this case, as I said earlier, credibility is the only issue.  There is no doubt a burglary took place and PW1’s money was stolen from inside his flat.  The sole question is has the prosecution proved beyond reasonable doubt that the burglar was the defendant?

28.The prosecution has the burden of proof, and the standard to be reached is beyond reasonable doubt.  The defendant has nothing to prove.  Even if I reject the defendant’s evidence, I must still be satisfied the prosecution’s evidence reaches the required standard.

29.I have considered the evidence of all the prosecution witnesses, the prosecution exhibits, the defendant, and final submissions from both parties.  After careful consideration, I find the defendant’s evidence fanciful and far-fetched.

30.I have taken into account Exhibit P22, a statement from an interpreter who was engaged by the police to translate at the station.  He says he first met the defendant at 17.49 pm on 14 January. Between 1800 and 2000 hours he assisted with translation during a record of interview.  He recalled the defendant making a request to seek medical attention, but he could not recall why he needed to see a doctor.

31.I am sure if he was as seriously injured as he alleges, he would have told the male interpreter why and that interpreter would have remembered it.  This conversation does not prove he sustained injuries as he describes.  If he had been so badly injured, the duty officer would have suspected and noticed it.  Moreover, medical evidence would have supported a serious injury to his penis, yet there is none.  I reject the defendant’s evidence in its entirety.

32.Despite this rejection, I still have to consider the prosecution’s evidence and whether it can prove the charge beyond reasonable doubt.  Defence counsel submits PW4’s glimpse of the man trying to get out of Room 34C by breaking the padlock from inside was only fleeting.  He submits the identification evidence is weak and crucial.  With respect, I disagree.  PW4 said he stood and watched the defendant hammering the gate for about 30 seconds before he went to approach the defendant.  That is sufficient time to study facial features and take note of what the defendant was wearing.  This included a distinctive yellow woollen hat with stripes.

33.The observation evidence is not a fleeting glance scenario.  The witness, PW4, identifies the defendant he finds about an hour later as a male he saw in PW1’s flat.  I am sure the identification is good and safe.  It was not challenged in cross‑examination.  The prosecution rely on PW4’s identification of the defendant, but also relies on the fingerprint evidence.  The defendant’s prints are on a hammer and, more importantly, on a drawer inside the flat.  That puts him in the flat.

34.He does not know PW1 and has no reason to have come into contact with PW1’s drawer.  I am sure he left the print there when he ransacked PW1’s flat.  It is strong evidence.  I reject the allegation the police made him touch many surfaces in the flat to frame him.  I am sure it was the defendant that was banging on the gate with tools to break open the padlock. Although the neighbour did not look or open the door, she heard the obvious sound of someone trying to prise open a metal gate.  Her statement supports PW4’s evidence as to what brought him to this location whilst he was on patrol.

35.Forensics show the tools in the defendant’s hands did not scratch the padlock examined, but that is not to say he did not try and use PW1’s tools in the flat.  PW1’s evidence was his tools had been taken out.  I am sure they would only have been taken out by the burglar trying to find something to open the padlock.  It is neither here nor there the tools found in the defendant’s hands did not make the marks on the padlock.  It does not help the defendant’s case.

36.I accept the prosecution’s case in its entirety.  The witnesses were credible and reliable.  There were no material discrepancies in their evidence that led me to doubt the credibility of any one witness.  I can infer from the evidence of what PW4 saw the defendant doing from inside the flat, the fingerprint on the drawer, the open windows of Room 34C and 38, the canopy linking the two rooms and the police eventually finding the defendant in Room 38 hiding under some blankets and cloth that the defendant was the burglar who stole from PW1’s home.  PW1’s money was found in his pocket.

37.It is well established that an inference of guilt can only be drawn against an accused if it is the only reasonable inference to be drawn.  It must be a compelling one, the only one.  All the circumstances of this case proved by the prosecution point to this conclusion.

38.In R v To Luen Sum [1995] 1 HKCLR 318, Bokhary J, as he then was, said at page 323:

“When it comes to looking at all the circumstances of a case and considering whether an inference of guilt is the only reasonable inference to draw from the primary facts on which the prosecution relies and of which the tribunal of fact is sure, it is true that the piling of layer upon layer of unconvincing material cannot result in proof of guilt beyond reasonable doubt, but that is not to say that items of fact, insufficient each in itself for the purpose of convicting, may not, when taken together, form a body of fact upon which it would be proper to infer guilt and convict accordingly.”

39.That is the case here.  I am satisfied beyond reasonable doubt that the prosecution can prove the burglar who entered and stole from within Room 34C was the defendant.  He tried to escape detection by climbing back out of the window, making his way to Room 38 and climbing in through an open window.  There he tried to hide in the corner of a room inside Room 38.  Unluckily for him, he was found by the police with tools and PW1’s money in his pocket.  He was recognised by PW4 as the man he had seen earlier inside Room 34C trying to get out.  His fingerprint was found inside.

40.The evidence is overwhelming.  Accordingly, I convict the defendant as charged.