HKSAR v. Kamrul Hasan

DCCC 921/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 921 OF 2014

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Reasons for Verdict

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1.PW1 NG Kam-fai was one of the proprietors of the canteen where the alleged burglary took place. The canteen was in a container yard in Lok Ma Chau. It was constructed by several interconnected containers. After operating there for about 3 years, the canteen had to cease business because the site was to be repossessed, and the containers to be demolished, by the landlord on 2 September 2014. He was responsible for seeing to the clear-up of the canteen.

2.The canteen ceased business on 15 August 2014.  The electricity power was cut several days after.  As at 1 September 2014, a lot of things, some wanted, some unwanted, were still in the canteen pending clear-up.  There were 3 air-conditioners which PW1 would like to keep. As they could not be dismantled by ordinary workmen, he had arranged for electricians to dismantle them in the morning on 2 September 2014.  In doing so, he could just meet the deadline for vacant possession by the landlord. 

3.In the afternoon on 1 September 2014, he met up with PW2 Cheng Kam-hung, his friend, who ran a business relating to container tractors.  D3 was listening beside PW2.  PW1 told PW2 in Punti that PW2 might take 2 unwanted cabinets for free from the canteen as the canteen was soon to be demolished.   He also told PW2, who enquired on behalf of D3, that D3 could take the 2 unwanted air-conditioners lying in the mud outside the canteen.  In his presence, PW2 and D3 started moving the things out of the canteen.  PW2 says he specifically told D3 not to touch anything else except moving the 2 unwanted cabinets given by PW1 to PW2.  The clear-up continued.  The canteen was not locked up when PW1 left because PW1 had lost the key. 

4.In the evening, He went back to the canteen for a check.  He saw a South Asian male dismantling an exhaust fan from the wall in the canteen.  He was angry and told the man to leave.  As the exhaust fan used to be fully oil-stained, he let the man take it. 

5.In the early hours on 2 September 2014, he went back to the canteen for a check.  He saw 4 South Asian males hauling a metal rack on a trolley away from the canteen.  He was angry and he told them that he wanted to keep the metal rack.  The men therefore returned the metal rack to the doorway of the canteen and left. 

6.He entered the canteen only to find the 3 air-conditioners missing.  One of them was a stand-up type affixed to the wall.  The other two were of the split type mounted onto the ceiling.  He made a report to the police.  In the early hours on 2 September 2014, D1 was approached by the police in the vicinity.  D1 took the police to a hut to retrieve his identity document.  In the hut, the police found D3 with the 3 air-conditioners.  D3 was arrested for burglary.  He did not reply after caution.  Apparently, he did not understand enough English or Punti to communicate with the police.  He was brought to the police station for enquiries.  

7.I do not find PW1 and PW2 honest witnesses as there are clear signs that they had discussed about the evidence after PW1 just completed his testimony.   I find the evidence of PW1 and PW2 incredible for their evasiveness in the witness-box and their modification of evidence vastly deviant from their witness statements. 

8.The defence suggest, among others, to PW1 that the 3 air-conditioners were lying on the floor on 1 September 2014.  PW1 denies this suggestion.  I do not believe PW1. 

9.The defence also suggests to PW1 that he did not want to be embroiled in a case of employing D3 as a lawfully unemployable person to clear up the stuffs in the canteen; so he denied making an agreement with D3 to let D3 take the unwanted items in the canteen for free in return for D3 clearing out the canteen.  The prosecution submit that PW1’s report to the police was an act inconsistent with the agreement between PW1 and D3 (as alleged by the defence) for D3 to take unwanted items for free in return for D3 clearing up the canteen.  I find the defence suggestion plausible because it was PW2, not PW1, who spoke to D3 on the agreement.  It was also PW2, not PW1, who carried out the agreement with D3.  PW1 was extremely agitated upon seeing the 3 air-conditioners missing as he had meant to keep them.  The scope of the agreement had been misunderstood by D3.  

10.D3 explained in his VRI, through a Bengali interpreter, that he thought PW2 had allowed him to take the 3 air-conditioners.  He gives evidence in court to the same effect with more details.  He supplements, among others, that PW1 actually saw his removal of one of the 3 air-conditioners.  I do not believe him on this aspect.  Be that as it may, I do not disbelieve other aspects of his evidence.  From the photos, it can be seen that the stand-up type air-conditioner was placed at the doorway of his hut whereas the 2 split-type air-conditioners were placed on the floor. They were not concealed despite their conspicuous positions in the hut.  By virtue of the agreement signed by D3 where PW2 was a witness, PW2 surely knew where D3’s hut was. 

11.D3 also supplements that when he was confronted by the police, he gave them PW2’s telephone number to verify the matter. 

12.I am satisfied that D3 had real difficulties in understanding precisely everything said by PW1 and PW2 in Punti.  I find it possibly true that D3 had misunderstood that the 3 air-conditioners lying on the floor of the canteen were among the unwanted items which he could take for free.   In the premises, he did not have the dishonest intent.  He is acquitted of the charge.