DCCC788/2023

DCCC788/2023

A A B B DCCC 788/2023 C [2024] HKDC 946 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 788 OF 2023 F F G --------------------------- G HKSAR H H v I CHEUNG KIM HO I ---------------------------- J J K Before: Deputy District Judge May Chung K Date: 20 June 2024 L L Present: Mr Edward Luke McGuinniety, Counsel on Fiat, for HKSAR M Mr David Boyton instructed by T K Tsui & Co, for the M defendant N N Offence: [1] Burglary （入屋犯法罪） O O [2] Assaulting a police officer in the due execution of his duty P （襲擊在正當執行職務的警務人員） P Q Q R ----------------------------------------- R REASONS FOR VERDICT S S ----------------------------------------- T T U U V V  -2- A A B B 1. The Defendant (“D”) pleaded not guilty to one count of C “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, C Cap 210 and one count of “Assaulting a police officer in the due execution D D of his duty”, contrary to section 36(b) of the Offences against the Person E Ordinance, Cap 212. E F F 2. The particulars of the first charge allege that D, on 1 G November 2022, in Hong Kong, having entered as a trespasser part of a G building known as “Electrical meter room (B)” (“Location 1”), 34/F, Sau H H Yat House, Sau Mau Ping Estate, Sau Mau Ping, Kowloon (“the Estate”), I stole therein about 2.2 metres of copper plates. I J J 3. The particulars of the second charge allege that D, on the same K date, at the staircase between 34/F and 35/F (“Location 2”) of Sau Yat K House of the Estate, assaulted SGT 58723 (“PW3”), a police officer of the L L Hong Kong Police Force, in the due execution of his duty. M M THE PROSECUTION CASE N N O 4. On 1 November 2022, PW3, SSGT 33508 (“PW1”), PC O 27507 (“PW2”) and PC 16755 (“PW4”) and party were conducting anti- P P crime patrol in the Estate. They had been briefed that morning about Q common crimes that had been occurring in the area, which included Q burglary of copper wires/plates from meter rooms. At around 12:35pm, R R PW2 patrolled to staircase B of 34/F of Sau Yat House of the Estate where S the electric meter room (i.e., Location 1) was located behind a smoke door S with a narrow window. He heard a “tak” sound from outside the smoke T T door. When PW2 looked through the window of the smoke door, he saw U U V V  -3- A A B B the following: D was standing outside the meter room holding a padlock; C he opened the door of the meter room and stepped with his left leg into the C meter room while his right leg was outside the meter room blocking the D D door from closing; he pick up one coil of copper wire/plate from the ground E of the electric meter room and put the copper wire into a dark coloured E recycle bag with a cartoon character (Exhibit P11) (“D’s cartoon bag”); he F F closed the door of the meter room and locked it with the padlock; then, he G turned left and went through the other smoke door. When D left, he was G carrying his cartoon bag and also another gray bag (Exhibit P12), both of H H which had been placed on the ground outside the meter room. The I observation was around 40-50 seconds long, and during the observation, I the distance between D and PW2 was about 1.5 metres. J J K 5. PW2 informed PW1 that he had seen a suspicious person (i.e., K D) and thus they swept the staircase from 34/F to 30/F (staircase B) and L L then back up from 30/F to 35/F (staircase A) and then they went M horizontally to staircase B, 35/F. At 12:45pm, PW1 and PW2 reached the M landing of 35/F staircase B (near Location 2) and PW2 saw through the N N glass window of the smoke door that D was messing with a red suitcase O (Exhibit P9). PW2 intercepted and conducted a body search on D. Upon O search, a silver key (Exhibit P13, “the Key”) was found in the left pocket P P of D’s trousers and 3 strips of copper wire and miscellaneous items were Q found in D’s cartoon bag. Furthermore, miscellaneous parts and tools Q including bolt cutters (P4) were found near the red suitcase. R R S S T T U U V V  -4- A A B B 6. Subsequently, PW2 asked the security guard of the building C whether anyone had borrowed the key to the padlock of the meter room C (being the same key for all floors of the building), and the security guard D D said no one had done so. PW2 and PW4 then escorted D to sweep from E 40/F to 20/F of the building, and when they arrived at the electric meter E rooms of 34/F and 35/F, PW4 used the Key and successfully opened the F F padlocks thereat (but the same Key could not open the padlocks to the G meter rooms on any of the other floors). PW4 entered the meter rooms on G 34/F and 35/F and saw that copper wires/plates had been cut off from the H H wall (near the ceiling). The sweeping took around 1 hour. D was then taken I back to the staircase between 34/F and 35/F (i.e., Location 2) at around I 2:20pm. J J K 7. From 2:20pm to 2:45pm, PW2 and other officers continued K their enquiry with D at Location 2. At 2:45pm, PW2 was standing on the L L staircase above D. D was standing in front of PW3 and PW4 (as depicted M by PW2 on Exhibit P8(15A)), when suddenly, D used his left hand to push M PW3 on the abdomen and then used his right hand to grab a red screwdriver N N (Exhibit P16) from the 3rd step of the staircase (where exhibits had been O laid out). Then, he yelled in foul language and stabbed the screwdriver at O PW3’s abdomen, but PW3 successfully avoided the screwdriver and P P immediately used both hands to encircle D; both of them then fell on the Q ground. PW2 and PW4 controlled D by pressing him on the ground and by Q putting handcuffs on D. D was emotionally unstable and banged his head R R onto the ground 3-4 times. At 2:55pm, D was arrested for the two offences. S S T T U U V V  -5- A A B B ADMITTED FACTS C C 8. The following facts, inter alia, were admitted pursuant to D D section 65C of the Criminal Procedure Ordinance (Cap 221) (see Exhibit E P8): E F F (1) At all material times, D was a technician employed by G Creative Enterprise Holdings Limited (“Creative G Enterprise”), which was a company responsible for H H looking after the buildings at the Estate. D was I responsible for repair and inspection works in the I Estate, that is, he was responsible for the interior of J J residential units, common area and storage rooms and K the inspection work which was necessary before repair K works began. Creative Enterprise had installed L L padlocks on the doors of the meter rooms in the M buildings at the Estate which could be opened by the M use of the one same key – which key was kept at in the N N security guard post of each individual residential block. O D was not given the key to any building at the Estate O and the handling of copper wires was not part of D’s P P duty. D would only ever be requested to enter an Q electric meter room if there was a maintenance request Q for dealing with a water leak, concrete spalling or R R wooden door replacement. Between 1 October 2022 S and 1 November 2022 there were no such requests S received. According to the guidelines of Creative T T Enterprise, employees should not enter meter rooms or U U V V  -6- A A B B place any personal belongings there, and employees C should not make any spare keys to any electric meter C room; D D E (2) On 1 November 2022 at 12:18pm, D entered Sau Yat E House without making any registration at the security F F post. D was on duty at the material time and part of his G work schedule for the material day is produced as G Exhibit P2/P2.1. (P2A is the English translation of P2.); H H I (3) One of the 3 strips of copper (Exhibit P3) was cut by a I pair of bolt cutters (Exhibit P4) that were found at the J J Estate; K K (4) Exhibit P5, a photograph album with a list of contents L L and 54 photographs taken by DPC 28339 and DPC M 7263, accurately depicts the places and items connected M to the case; N N O (5) At approximately 1455 on 1 November 2022 at O Location 2, D was arrested and cautioned by PC 27507 P P for the two subject offences. D did not say anything; Q Q (6) D requested, when in custody on 1 November 2022, to R R seek medical attention. D attended the Accident and S Emergency Department of United Christian Hospital S on 1 November 2022. The relevant medical report T T (Exhibit P6) accurately sets out the injuries sustained U U V V  -7- A A B B by D on 1 November 2022. (P6 states that D reported C an injury over his right wrist and right shin while he C was arrested by the police, that there was a small D D abrasion over right dorsal wrist and right shin, and E minimal tenderness over his right lateral knee, and that E D was discharged with analgesics.); F F G (7) The medical report of Dr Chan Lok Sze of United G Christian Hospital accurately showing the injuries H H sustained by PW3 on 1 November 2022 is produced as I Exhibit P7. (P7 states that PW3 complained of falling I while on duty on 1 November 2022, that he suffered J J from bilateral elbows and bilateral knees contusion, had K mild redness and pain over the contused regions, and K was discharged with topical analgesics.) L L M DEFENCE CASE M N N 9. The defence made no midway submissions. After I ruled that O there was a case to answer for both charges, D elected to give evidence (but O did not call any other witness). P P Q 10. It was D’s evidence that he went to work at the Estate on the Q subject day. He was to follow the work orders (Exhibit P2.1) and inspect R R the residential units on the list. He started work at around 9:15am and had S by about 12:10pm finished the list of inspections in the first 4 blocks of S buildings in the Estate slotted for 10am to 12pm (see page 2 of Exhibit T T P2.1/P2A), but it was not yet lunchtime, so he moved on to the list for the U U V V  -8- A A B B second 4 blocks of buildings slotted for 2-4pm (see page 1 of Exhibit C P2.1/P2A) – and so he arrived at Sau Yat House at 12:18pm (see Exhibit C D2, the CCTV screen capture of the security post) to deal with the second D D list of requests. As shown in Exhibit D2, D was carrying his cartoon bag E (which, according to D, contained some light tools and parts for water tanks) E on his left, and 2 mobile phones in his right hand when he entered the F F building. G G 11. He first went up to 36/F of Sau Yat House to deal with Item 7 H H on page 1 of Exhibit P2.1/P2A (i.e., the request of the tenant at Room 3607 I to repair the metal gate) but the tenant was not in the flat and could not be I reached by phone. As such, D decided to go down to 34/F of the building J J to deal with Item 1 on page 1 of Exhibit P2.1/P2A (i.e., the request of the K tenant at Room 3414 to repair the metal gate). D took the stairs down from K 36/F, and at around 12:23pm, between 34/F and 35/F, he was suddenly L L pressed down on the ground by some people on the staircase; as a result, M his legs and arms were injured. D adds that he was pressed on the ground M for half an hour and subsequently handcuffed in the back, and then detained N N at that location for around 2 hours. He did not know and still does not know O who jumped on him and pressed him down. It was not until around 2:30pm O that someone said “I am a police officer” and only then did D learn that the P P persons who had been holding him were police officers. D was later Q arrested at the same location for burglary and assaulting a police officer, Q and taken back to the police station. At no time were exhibits displayed on R R the staircase and shown to him (as in Photo 14 of Exhibit P5), nor had he S ever been taken to any meter room or anywhere else in the 2-hour period. S T T U U V V  -9- A A B B ISSUE C C 12. The defence stance is that the events in question were D D fabricated by the officers. D went to the Estate to work on the subject day, E but he never went to the electric meter room, never had the key to the E padlocks to the meter rooms, nor picked up any copper wire/plate. The F F defence case is that the officers had been briefed to catch the culprit behind G the recent spate of burglaries of copper wires/plates at the Estate; they saw G D at the staircase of the Estate and pounced on him (assuming wrongly that H H he was the culprit), injuring D; and subsequently made up the account to I justify their actions. I J J ANALYSIS OF EVIDENCE K K 13. The prosecution has the burden to prove the requisite elements L L of the offences beyond reasonable doubt. D has no burden of proof. Even M if D’s evidence is rejected, I still have to consider the prosecution’s M evidence and see if each of the charges has been proved beyond reasonable N N doubt. O O 14. I bear in mind that if the account given by the D is or may be P P true, D must be acquitted. Q Q 15. I have carefully considered the evidence of D. I find that he R R was not completely truthful when testifying about what happened on the S day in question. In particular, he was evasive about what occurred during S the 2 hours he claimed he was detained by the police at the staircase landing, T T and was unable to give any detail regarding how many and which officers U U V V  - 10 - A A B B had pressed him down on the ground, etc. However, I find that it is possible C D may not have been lying when he testified that he did not steal any C copper wire or assault any police officer. As such, D must be acquitted of D D both charges. E E 16. Even though it is not necessary to deal with the prosecution F F evidence in light of the above finding, I would make the following G observations. G H H 17. Regarding the first offence of burglary, the prosecution I essentially relies solely on the evidence of PW2. However, I cannot accept I his evidence for the following reasons. J J K 18. His account of his observation of D taking the copper wire K from the electric meter room on 34/F is not believable: L L M (1) He stated that Photograph 3 of Exhibit P5 shows the M subject electric meter room and the smoke door through N N which he had observed the act (but the smoke door was O closed at the material time and not opened like it is O shown in the photograph). He stated that he looked P P through the small window of the smoke door and Q observed D opening the door to the electric meter room, Q then stepping his left foot inside the electric meter room R R while using his right foot to kick back and hold the door S open; D then stooped down to pick up a coil of copper, S all the while facing into the electric meter room (with T T his back to PW2); U U V V  - 11 - A A B B C (2) However, according to the undisputed evidence (of C PW4, and Photograph 3 of Exhibit P5), the door of the D D electric meter room opens out to the left. Once D pulls E the door open, it would be unnatural for him to use his E right leg to kick/hold the door open and use his left foot F F to step inside (it would be much more natural to use his G left foot to hold the door open since the hinge of the G door is on the left and it opens to the left). Moreover, in H H this manner of keeping the door open as depicted (with I D’s right foot holding the door open, left foot stepping I inside), the electric meter room door could only be J J slightly ajar and not fully opened, and PW2’s view K would be fully blocked by the electric meter room door K itself; PW2 would not actually be able to see D’s action L L at all (as to which foot he used to do what, and any act M of stooping down to pick up an item from the ground). M On top of that, PW2 claims he saw all this through the N N small window on the top right quadrant of a smoke door, O which is even more incredulous. As such, the Court O finds that it is not credible that PW2 could observe what P P he described, especially with the details he gave when Q he testified. Q R R 19. PW1 was present when PW2 did the body search. Yet PW1 S did not see PW2 finding the Key (P13) from the trouser pocket of D. The S Key (which opens the padlock to the electric meter room) is a very T T important piece of evidence in the case. It is inconceivable that PW1 would U U V V  - 12 - A A B B forget or fail to pay attention to such an important event if it had occurred. C Yet PW1 in his evidence-in-chief firmly stated he did not recognise Exhibit C P13 and had never seen it before. D D E 20. I accept the defence submission that is indeed strange that E PW2 (and PW1) did not arrest D immediately upon intercepting him at F F Location 2. According to PW2’s evidence, D was carrying the copper wires G on his shoulder in the cartoon bag at the time; he had only around 10 G minutes before that observed D removing copper wires from the electric H H meter room on 34/F; the briefing that morning was to look out for suspects I who were burglarising copper wires from electric meter rooms in the Estate. I In essence, D was caught red-handed (according to PW2’s account). It thus J J defies common sense that PW2 did not arrest D there and then. (The reason K given by PW2 in the box was that D had told him he was a repairman and K was working on the premises so the police still needed to investigate before L L arresting D. However, it is clear that the copper wires allegedly found on M D were cut coarsely and messily rolled up into coils (see Exhibit P3 and M Photograph 43 of Exhibit P5); even if D was a workman / repairman at the N N Estate, that would clearly not justify him taking copper wire that had O obviously been cut off without permission.) O P P 21. The evidence of PW2 and PW4 that they took D from 40/F to Q 20/F to try to open the padlocks of the electric meter rooms on each floor Q with the Key also defies logic. The alleged fact before them was that D had R R taken wires from 34/F – PW2 had observed this. The logical thing to do S would be to go directly go to the subject meter room on 34/F (i.e., Location S 1) to try the Key; but instead they went to 40/F first and tried all the meter T T rooms down to 20/F. U U V V  - 13 - A A B B C 22. The evidence (of PW2 and PW4) that the Key only was able C to open the padlocks to the meter rooms on 34/F and 35/F (which D D purportedly had signs of copper wires having been cut from the walls) and E not the padlocks to the rooms on other floors is inconsistent with the E evidence of PW5, the assistant engineering manager of Creative F F Enterprises. In fact, the prosecution case had all along been that the G padlocks to all meter rooms of the building can be opened by the same key G (which is kept at the security post of the building), and this is admitted as H H a fact in Exhibit P8. This discrepancy is material and irreconcilable. I I 23. The fact that PW2 (and/or his colleagues) took no J J photographs of the electric meter rooms of 34/F and 35/F as evidence is K also extremely odd. PW2 claims to have seen D take copper wires from the K 34/F electric meter room; he further claims that his subsequent sweep with L L PW4 and D revealed both 34/F and 35/F electric meter rooms had M missing/cut copper wires from the walls. It defies logic that it was deemed M unnecessary to take photographs of these electric meter rooms (which N N purportedly had cut wires and were the scenes of the crime) but necessary O to take photographs of irrelevant locations like the entrance of the building O (Photograph 1 of Exhibit P5) and the staircase landing between 35/F and P P 36/F (Photograph 9 of Exhibit P5). Q Q 24. PW2’s evidence of his observation of D at Location 2 (right R R before D was intercepted) is also not credible. He stated that he saw D S leaning over the red suitcase (Exhibit P9) through the smoke door shown S at Photograph 13 of Exhibit P5. According to him, the red suitcase was T T placed on the top step as shown on Photograph 14 of Exhibit P5 (and U U V V  - 14 - A A B B P5(8A)). However, given the angle of the smoke door, and the size and C location of the window on the smoke door, his view of the staircase would C be blocked by the checkered wall (see Photograph 13); he should not be D D able to see the suitcase through the smoke door as claimed. E E 25. I also accept the defence argument that there was no good F F reason for D to lay everything out in the open on the 34/F-35/F staircase G landing to arrange/pack the copper coils into the red suitcase and risk his G illegal activity being exposed when there was sufficient space (as admitted H H by PW2) to do this in secret in the meter room itself (after cutting the wires I from the walls or thereafter). PW2’s evidence that D chose to “mess with” I (or tidy up) the suitcase while carrying the very heavy cartoon bag J J containing 3 copper coils weighing a total of 7.66kg (see Exhibit P17, 2 nd K Admitted Facts) on his shoulder also does not make sense – the natural K thing to do would be to place the heavy bag on the ground before doing so. L L M 26. The prosecution evidence relating to the first charge is M therefore is not accepted by the Court. N N O 27. Given Charge 2 flows from events which happened as a result O of Charge 1, the Court also cannot accept the prosecution case as regards P P the second charge. I would add that I find a number of aspects of the Q relevant evidence of PWs odd, including: Q R R (1) PW2 to PW4 had all testified that D had banged his S head on the ground 3-4 times when he was subdued S (after assaulting PW3), but the medical report of D T T (Exhibit P6) shows no injury to D’s head at all; U U V V  - 15 - A A B B C (2) PW3’s medical report (Exhibit P7) records that he had C complained of “falling while on duty” (instead of D D having been assaulted); E E (3) PW1 was not present when the incident happened F F despite being the officer in charge of the operation, G having disappeared from the scene for hours for no G good reason; and H H I (4) PW4 who was tasked with guarding D when Charge 2 I allegedly occurred not reacting immediately when the J J assault on PW3 purportedly happened. K K 28. In light of the aforesaid, D is acquitted of both charges. L L M M N N O O ( May Chung ) P Deputy District Judge P Q Q R R S S T T U U V V