DCCC207/2020 HKSAR v. VILLARREAL JUAN ANTONIO MARTIN - LawHero
DCCC207/2020
區域法院（刑事）HH Judge Dufton22/9/2020[2020] HKDC 782
DCCC207/2020
A A
B B
DCCC 207/2020
[2020] HKDC 782
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 207 OF 2020
E ____________ E
HKSAR
F v F
VILLARREAL JUAN ANTONIO MARTIN
G G
____________
H H
Before: HH Judge Dufton
I Date: 23 September 2020 I
Present: Ms Patricia Alva, counsel on fiat, for HKSAR
J Mr Juan Antonio Martin Villarreal appeared in person J
Offence: Burglary (入屋犯法罪)
K K
REASONS FOR VERDICT
L L
1. The defendant pleads not guilty to one charge of burglary,
M contrary to section 11(1) (b) and (4) of the Theft Ordinance1. M
N N
2. The particulars of the charge are:
O O
“Villarreal Juan Antonio Martin, on the 3rd day
P P
of January, 2020, in Hong Kong, having entered as a
Q
trespasser part of a building known as the staircase Q
between 7th Floor and 8th Floor, No. 15 Morrison Hill
R R
Road, Wan Chai, stole therein one vinyl record
S player.” S
T T
1
Cap 210.
U U
V V
2
A A
B B
Introduction
C C
3. The building situated at Nos. 15-17 Morrison Hill Road has
D eight floors and a rooftop. Each floor had two flats and two staircases, D
one for No. 15 Morrison Hill Road and one for No. 17 Morrison Hill
E E
Road.
F F
4. Mr Lam lived in both flats on the 8th Floor. On 28
G G
December 2019 Mr Lam placed some of his belongings on the staircases
H outside his home including the vinyl record player. Mr Lam placed the H
vinyl record player on staircase No. 15. Mr Lam intended to take his
I I
belongings back later.
J J
Prosecution case
K K
5. The prosecution case in summary is that at around 4:15 a.m.
L L
on 3 January this year PC 10116 saw the defendant enter the building. At
M around 4:23 a.m. PC 10116 saw the defendant exit the building carrying a M
brown bag. PC 10116 therefore followed the defendant and after a short
N N
while intercepted the defendant. PC 10116 found Mr Lam’s vinyl record
O player inside the brown bag. O
P P
6. The prosecution relies on oral statements attributed to the
Q defendant on interception and two records of interview. The records of Q
interview are mixed statements, the defendant admitting he entered the
R R
building and took away the vinyl record player and explaining that he
S took the vinyl record player because he thought it was rubbish. S
T T
U U
V V
3
A A
B B
Defence case
C C
7. The defence case as put in cross-examination of PC 10116
D and contained in the records of interview is that the defendant entered the D
building to urinate and that he took the vinyl record player because he
E E
thought it was rubbish.
F F
Defendant acting in person
G G
8. The defendant is Spanish and has conducted his defence in
H H
person. At the beginning of the proceedings on the first day of the trial
I the defendant said he did not require a Spanish interpreter and elected to I
proceed in English.
J J
K 9. Pursuant to Rule 8 of the Legal Aid in Criminal Cases Rules 2, K
the Director of Legal Aid refused the defendant’s application for Legal
L L
Aid because the defendant did not accept the offer of legal aid made on
M 12 June 20203. The defendant says he was unable to pay the contribution. M
N N
10. On the first day of trial I asked the defendant whether he
O wished to be legally represented. The defendant said he wished to O
proceed unrepresented.
P P
11. Before asking the defendant to enter his plea to the charge I
Q Q
ensured all papers had been served on the defendant and that he had them
R with him in court. I explained to the defendant the elements of the R
offence and the trial procedure. As the trial proceeded I explained each
S S
T 2
T
Cap 221D.
3
See Notice of Refusal dated 23 June 2020.
U U
V V
4
A A
B B
stage of the proceedings to the defendant including how to cross-examine
C witnesses; submission of no case to answer; the right to give evidence and C
call witnesses and how to make a final submission.
D D
Evidence
E E
F 12. The prosecution called four witnesses: Mr Lam (PW1); PC F
10116 (PW2); WDPC 24320 (PW3), who conducted the records of
G G
interview and Ms Sin Kam Ling (PW4), the English interpreter in the
H records of interview. H
I 13. The defendant only cross-examined Mr Lam and PC 10116. I
I explained admissibility of oral and written statements to the defendant.
J J
The defendant made no allegations of violence, threats, promises,
K K
inducements or other impropriety on the part of the police officers4. The
L
defendant did however challenge the accuracy of the questions and L
answers upon interception.
M M
14. The defendant elected not to give evidence or call witnesses.
N N
No adverse inference is drawn against the defendant for remaining silent.
O That is his right. This proves nothing one way or the other. This does not O
establish his guilt.
P P
Q Q
R R
S S
4
PC 10116 (PW2); WDPC 24320 (PW3) and Ms Sin Kam Ling (PW4) all testified that nobody
used any force on the defendant, threatened the defendant, offered the defendant any inducements
T or made the defendant any promises. I was satisfied that the oral statements attributed to the T
defendant by PC 10116 if said, were said voluntarily and that the records of interview were taken
voluntarily.
U U
V V
5
A A
B B
15. Ms Alva informed the court the defendant had a clear record.
C I direct myself as to good character both as to credibility and propensity C
5
in accordance with the decision in HKSAR v Tang Siu Man .
D D
16. In reaching my verdict I remind myself of the burden and
E E
standard of proof and that the burden is on the prosecution throughout.
F The defendant has to prove nothing. I direct myself that I must be sure of F
the guilt of the defendant before I can convict. On the other hand, if the
G G
court thinks that the defence evidence pointing to innocence is true or
H may be true, it would follow that the defence has raised sufficient doubt H
in the prosecution case and the defendant entitled to be acquitted.
I I
J 17. I remind myself that when drawing inferences from the J
evidence a court may only draw an inference if that inference is the only
K K
reasonable inference to draw from the proved facts. If from the facts
L proved there is a reasonable inference to draw against a defendant as well L
as one in his favour the adverse inference cannot be drawn.
M M
N Consideration of the evidence N
O 18. I have carefully considered all the evidence and the final O
submission of the defendant.
P P
Q 19. The main issue in the case is whether the defendant believed Q
the vinyl record player was abandoned. I will therefore first briefly
R R
summarise the evidence relating to the other elements of the offence.
S S
T T
5
[1997-98] 1 HKCFAR 107.
U U
V V
6
A A
B B
Entered as a trespasser part of a building - the staircase between the 7th
C Floor and 8th Floor, No.15 Morrison Hill Road C
D The building D
E E
20. The building situated at Nos. 15-17 Morrison Hill Road has
F eight floors and a rooftop (“the building”). The ground floor and the first F
floor are commercial premises whereas the 2nd floor to the 8th floor are
G G
domestic premises.
H H
21. Each floor had two flats and two staircases, one for No. 15
I Morrison Hill Road and one for No. 17 Morrison Hill Road. Mr Lam, I
who lived in both flats on the 8th floor and was the chairman of the
J J
Owner’s Corporation of the building, gave evidence of the layout of the
K K
building.
L L
22. The staircase for No. 15 leads to the rear of the building
M whereas the staircase for No. 17 leads to the front of the building. The M
main entrance is on Morrison Hill Road as shown in photographs 8 and 9,
N N
exhibit P156.
O O
23. A staircase leads from the main entrance to a metal gate
P P
between the 1st floor and the 2nd floor. The metal gate is secured by a
Q passcode which is only given to the owners and occupants of the building. Q
CCTV cameras are installed at the top of the staircase and by the metal
R R
gate.
S S
T T
6
The photographs, exhibit P15, were taken at various times by WDPC 24320 (PW3), who testified
when each of the photographs were taken and that she burned the photographs onto a disc.
U U
V V
7
A A
B B
24. After the metal gate is the staircase for No. 17. There is a
C connecting fire door on each floor linking staircase No. 17 with staircase C
No. 15. Mr Lam drew a floor plan showing the flats and the staircases
D D
(exhibit P21).
E E
25. Mr Lam said he placed the vinyl record player (exhibit P2)
F between the 7th and 8th floors on staircase No. 15. F
G G
Entered as a trespasser
H H
26. In summary PC 10116 testified that at 4:15 a.m. on 3 January
I this year he saw the defendant looking around at Sharp Street West. I
From a distance of about 10 meters PC 10116 observed the defendant
J J
turn right into Morrison Hill Road and walk to the 7-11 convenience store
K K
on Tin Lok Lane. The defendant then turned around and walked back to
L
the junction of Morrison Hill Road and Sharp Street West where PC L
10116 saw the defendant looking at the roller shutters of the buildings.
M M
27. After observing the defendant for about three minutes PC
N N
10116 saw the defendant enter the building at Nos. 15-17 Morrison Hill
O Road. At 4:23 a.m. PC 10116 saw the defendant leaving the building O
carrying a brown bag. PC 10116 followed the defendant and intercepted
P P
him at Bowrington Road. PC 10116 found inside the brown bag (exhibit
Q P1) the vinyl record player (exhibit P2). Q
R R
CCTV footage
S S
28. Mr Lam operated the CCTV system. No one else had access
T to the CCTV system and no one interfered with the system. Mr Lam T
described the CCTV system as having six cameras. Mr Lam made a copy
U U
V V
8
A A
B B
for the police of camera 1 and camera 6 which footage was played in
C court7. C
D 29. Camera 1 shows the staircase leading from the main entrance D
to the metal gate and camera 6 shows the metal gate. Camera 1 between
E E
04:19:16 and 04:19:24 shows a person entering the building and walking
F up the stairs towards the metal gate. Camera 6 between 04:19:43 and F
04:20:06 shows the same person entering the metal gate and walking
G G
upstairs. Camera 6 between 04:26:29 and 04:26:42 shows the same
H person walking down the staircase and exiting the metal gate. Camera 1 H
between 04:26:53 and 04:26:57 shows the same person leaving the
I I
building.
J J
30. PC 10116 identified the defendant as the person seen on the
K K
CCTV footage entering and leaving the building. Camera 6 shows the
L clothing of the person is the same as the clothing worn by the defendant L
as seen in photograph 358.
M M
N 31. In the records of interview the defendant told the police that N
9
he lived in Paterson Street in Causeway Bay .
O O
32. I am satisfied on this evidence that the defendant entered as a
P P
trespasser part of a building, namely the staircase between the 7th Floor
Q and 8th Floor, No.15 Morrison Hill Road. Q
R R
S S
7
Exhibit P16. The footage was played to both Mr Lam and PC 10116. Still images from the CCTV
footage have also been produced, exhibit P17(1) - (9). WDPC 24320 compiled the album.
T 8
T
This photograph was taken by WDPC 24320 on 4 January 2020.
9
See Q&A 4, 5 & 6, exhibit P19A and Q&A 4, 5 & 6, exhibit P20A.
U U
V V
9
A A
B B
Theft of the vinyl record player (exhibit P2)
C C
33. Mr Lam had purchased the vinyl record player in Sheung
D Wan in 2017 for a few hundred dollars. The vinyl record player was D
second hand and was quite dirty. Mr Lam regarded the vinyl record
E E
player as an antique because it was not produced anymore. Mr Lam
F decided to buy the vinyl record player because he thought the vinyl F
record player was quite valuable, worth about $1500-$2000.
G G
H 34. Mr Lam testified that on 28 December 2019 he started H
clearing out miscellaneous items in his flat and tidying up his flat. Mr
I I
Lam moved out items which were dirty and not quite tidy and put them
J on the staircases. The items shown in photographs 11-14, exhibit P15 J
were placed on the staircase of No. 17 and the items shown in
K K
photographs 15, 17 and 18 were placed on the staircase of No. 15.
L L
35. When asked what he intended to do after placing the items
M M
outside his home, Mr Lam replied that he would leave them there for
N some time and that when he had the time he would put some back inside N
his home and some on the rooftop.
O O
36. Mr Lam testified that he placed the vinyl record player on
P P
the staircase underneath the green case which contained a guzheng. The
Q green case is shown in photographs 17 and 18, exhibit P1510. Mr Lam Q
said he had never moved the vinyl record player. In cross-examination
R R
Mr Lam disagreed that the vinyl record player was not placed underneath
S the green case. S
T T
10
After interviewing Mr Lam WDPC 24320 returned to the building and took these photographs to
show the position where Mr Lam said he had placed the vinyl record player.
U U
V V
10
A A
B B
37. Mr Lam explained that to remove the vinyl record player the
C green case had to be taken down or something had to support the green C
case to stop the green case falling down whereby you could then slide out
D D
the vinyl record player from underneath the green case.
E E
38. Mr Lam had never seen the brown bag (exhibit P1) in which
F the defendant was carrying the vinyl record player when he was F
intercepted by PC 10116.
G G
H Oral statements H
I 39. PC 10116 testified that after intercepting the defendant he I
conducted a body search. The defendant was wearing a black waist bag
J J
across his chest (exhibit P3). Inside the waist bag PC 10116 found a
K K
damaged combination lock (exhibit P4), a black torch (exhibit P5), a blue
L
screwdriver (exhibit P6), a pair of gloves (exhibit P7), a silver manhole L
cover lifting key (exhibit P8) and a re-sealable plastic bag containing
M M
items of jewellery (exhibits P9-P14).
N N
40. After conducting the body search PC 10116 questioned the
O defendant in English: O
P P
Q. Where you go before?
Q A. I find my friend. Q
R Q. Where your friend live? R
S
A. Morrison Hill Road. S
Q. Where you live?
T T
A. Haven Building
U U
V V
11
A A
B B
41. PC 10116 then pointed to the vinyl record player and asked:
C C
Q. Where you take this?
D D
A. Take from my friend.
E Q. I saw you before you haven’t taken this box. E
F A. No reply F
G 42. PC 10116 then asked the defendant about the content of the G
waist bag. PC 10116 asked “Where you take this?” to which the
H H
defendant did not reply. When asked by the court what “this” referred to,
I whether the waist bag, all the contents or just one item, PC 10116 was I
unable to say and explained that he asked about each item individually
J J
but had forgotten the sequence. Asked again “Where you take this?” the
K defendant replied “Bought from Causeway Bay”. PC 10116 did not say K
which item this answer referred to.
L L
M 43. PC 10116 took the defendant to the building where the M
defendant said he did not know the code to enter the metal gate. The
N N
defendant was then arrested for loitering.
O O
Records of interview
P P
44. In the records of interview the defendant told the police, inter
Q Q
alia, that he was on his way home when he went into the building to
R urinate and that when he was walking up the stairs he saw on the ground R
of the staircase, among rubbish like waste paper and packaging, an old
S S
T T
U U
V V
12
A A
B B
style disc player which he picked up because he thought it was a piece of
C rubbish and had been thrown away11. C
D Discussion D
E E
45. The defendant’s claim in the records of interview that he
F thought the vinyl record player was rubbish and had been thrown away is F
different to what he told PC 10116 that he took the vinyl record player
G G
from his friend who lived in Morrison Hill Road.
H H
46. In cross-examination the defendant challenged the accuracy
I of this conversation. PC 10116 said he could not remember the defendant I
telling him he was going home and disagreed that the defendant told him
J J
that the vinyl record player had been thrown away and that he had picked
K K
it up from the staircase of the building and that the tools were used for
L
fixing things. L
M 47. The answers attributed to the defendant were not made under M
caution. In answer to the court PC 10116 said he never cautioned the
N N
defendant and explained that based on section 54 of the Police Force
O Ordinance12 he had the right to ask a series of questions. PC 10116 said O
because he was not fluent in English he did not caution the defendant13.
P P
Q 48. Taking into account that when PC 10116 saw the defendant Q
enter the building it was 4 a.m. and the defendant was not carrying
R R
anything, I am satisfied PC 10116 on seeing the defendant leave the
S S
11
See Q&A 6-11 exhibit P19A and answer to caution and Q&A 6-8 & 10-13, exhibit P20A.
T 12
T
Cap 232.
13
This answer was given after cross-examination.
U U
V V
13
A A
B B
building carrying a bag was entitled to intercept the defendant and ask
C questions without first cautioning the defendant (see for example HKSAR C
14
v Fung Wing Ching ).
D D
49. What concerns me is that the defendant was not shown a
E E
record of this conversation to see whether he agreed that was what he said.
F In answer to the court PC 10116 said he did not make a record of the F
conversation in his notebook to show to the defendant15. The records of
G G
interview do not recite the conversation.
H H
50. The courts have said that judges and magistrates will need to
I I
scrutinise very hard any reliance by the prosecution on alleged oral
J admissions which are not recorded in writing and shown to the suspect J
for his acknowledgement (see R v Chan Chi Fai & another16, HKSAR v
K K
Lau Ho Yin17 and HKSAR v Chan Yuk Ling18).
L L
51. Heeding the caution of the Court of Appeal and taking into
M M
account that the defendant was not cautioned; PC 10116 was not fluent in
N English; PC 10116 did not record the conversation in his notebook and N
the conversation was not recited in the records of interview, I am satisfied
O O
in the circumstances that it would be unfair to rely on this evidence. In
P this regard I also note that in paragraph 5 of the prosecution opening P
statement Ms Alva’s recital of the conversation is different, namely that
Q Q
the defendant said he had taken the vinyl record player from home.
R R
14
[1998] 2 HKLRD 736.
S 15 S
This answer was given after cross-examination.
16
CACC 636/1996.
T 17
T
CACC 288/2011.
18
[2013] 1 HKLRD 1093.
U U
V V
14
A A
B B
Abandoned property
C C
52. Mr Lam had only placed the vinyl record player on the
D staircase temporarily and did not give permission to anyone to take away D
the vinyl record player.
E E
F 53. If the defendant however had a genuine belief that the vinyl F
record player had been abandoned, whether that belief was reasonable or
G G
unreasonable, he would not be acting dishonestly. An unreasonable
H belief may be an honest one although a court may infer a lack of honest H
belief from the unreasonableness of that belief (see R v Small 19and R v
I I
Wood20).
J J
54. The issue for the court therefore is whether the defendant did
K K
have a genuine belief or might have had a genuine belief that the vinyl
L
record player was rubbish and had been thrown away. L
M 55. Photographs 20, 21 and 22 (exhibit P15), which were taken M
in the police station, give the appearance that the vinyl record player is in
N N
good condition. A look at the actual exhibit shows otherwise. The vinyl
O record player is very old, dirty and parts are cracked and broken. O
P P
56. Notwithstanding the suspicious circumstances in which the
Q defendant was arrested, having closely inspected the vinyl record player I Q
find that I cannot reject that the defendant had a genuine belief or might
R R
have had a genuine belief that the vinyl record player was rubbish and
S had been thrown away. S
19
T (1988) 86 Cr App R 170. T
20
[2002] EWCA Crim 832. Also see Archbold Hong Kong 2020 at §20-24 and Blackstone’s
Criminal Practice 2020 at §B4.26
U U
V V
15
A A
B B
57. In reaching this finding I have considered the location where
C the vinyl record player was placed by Mr Lam. This was challenged in C
cross-examination by the defendant. The defendant told the police in the
D D
record of interviews that the vinyl record player was on the ground 21.
E E
58. Placing the vinyl record player under the green case shown
F in photographs 17 and 18 does seem an unlikely place to put the vinyl F
record player.
G G
H 59. Even if that was where the defendant found the vinyl record H
player this does not cause me to doubt the finding that the defendant had
I I
a genuine belief or might have had a genuine belief that the vinyl record
J player was rubbish and had been thrown away. The other items shown in J
photographs 17 and 18 also largely appear to be old and dirty. I note in
K K
the record of interview the defendant said the vinyl record player was put
L among rubbish like waste paper and packaging materials22. L
M M
60. The benefit of the doubt is given to the defendant and he is
N acquitted of the charge. N
O O
P P
Q (D. J. DUFTON) Q
District Judge
R R
S S
T 21
T
See Q&A 7 & 10, exhibit P19A and answer to caution and Q&A 10, exhibit P20A.
22
See Q&A 10, exhibit P20A.
U U
V V
A A
B B
DCCC 207/2020
[2020] HKDC 782
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 207 OF 2020
E ____________ E
HKSAR
F v F
VILLARREAL JUAN ANTONIO MARTIN
G G
____________
H H
Before: HH Judge Dufton
I Date: 23 September 2020 I
Present: Ms Patricia Alva, counsel on fiat, for HKSAR
J Mr Juan Antonio Martin Villarreal appeared in person J
Offence: Burglary (入屋犯法罪)
K K
REASONS FOR VERDICT
L L
1. The defendant pleads not guilty to one charge of burglary,
M contrary to section 11(1) (b) and (4) of the Theft Ordinance1. M
N N
2. The particulars of the charge are:
O O
“Villarreal Juan Antonio Martin, on the 3rd day
P P
of January, 2020, in Hong Kong, having entered as a
Q
trespasser part of a building known as the staircase Q
between 7th Floor and 8th Floor, No. 15 Morrison Hill
R R
Road, Wan Chai, stole therein one vinyl record
S player.” S
T T
1
Cap 210.
U U
V V
2
A A
B B
Introduction
C C
3. The building situated at Nos. 15-17 Morrison Hill Road has
D eight floors and a rooftop. Each floor had two flats and two staircases, D
one for No. 15 Morrison Hill Road and one for No. 17 Morrison Hill
E E
Road.
F F
4. Mr Lam lived in both flats on the 8th Floor. On 28
G G
December 2019 Mr Lam placed some of his belongings on the staircases
H outside his home including the vinyl record player. Mr Lam placed the H
vinyl record player on staircase No. 15. Mr Lam intended to take his
I I
belongings back later.
J J
Prosecution case
K K
5. The prosecution case in summary is that at around 4:15 a.m.
L L
on 3 January this year PC 10116 saw the defendant enter the building. At
M around 4:23 a.m. PC 10116 saw the defendant exit the building carrying a M
brown bag. PC 10116 therefore followed the defendant and after a short
N N
while intercepted the defendant. PC 10116 found Mr Lam’s vinyl record
O player inside the brown bag. O
P P
6. The prosecution relies on oral statements attributed to the
Q defendant on interception and two records of interview. The records of Q
interview are mixed statements, the defendant admitting he entered the
R R
building and took away the vinyl record player and explaining that he
S took the vinyl record player because he thought it was rubbish. S
T T
U U
V V
3
A A
B B
Defence case
C C
7. The defence case as put in cross-examination of PC 10116
D and contained in the records of interview is that the defendant entered the D
building to urinate and that he took the vinyl record player because he
E E
thought it was rubbish.
F F
Defendant acting in person
G G
8. The defendant is Spanish and has conducted his defence in
H H
person. At the beginning of the proceedings on the first day of the trial
I the defendant said he did not require a Spanish interpreter and elected to I
proceed in English.
J J
K 9. Pursuant to Rule 8 of the Legal Aid in Criminal Cases Rules 2, K
the Director of Legal Aid refused the defendant’s application for Legal
L L
Aid because the defendant did not accept the offer of legal aid made on
M 12 June 20203. The defendant says he was unable to pay the contribution. M
N N
10. On the first day of trial I asked the defendant whether he
O wished to be legally represented. The defendant said he wished to O
proceed unrepresented.
P P
11. Before asking the defendant to enter his plea to the charge I
Q Q
ensured all papers had been served on the defendant and that he had them
R with him in court. I explained to the defendant the elements of the R
offence and the trial procedure. As the trial proceeded I explained each
S S
T 2
T
Cap 221D.
3
See Notice of Refusal dated 23 June 2020.
U U
V V
4
A A
B B
stage of the proceedings to the defendant including how to cross-examine
C witnesses; submission of no case to answer; the right to give evidence and C
call witnesses and how to make a final submission.
D D
Evidence
E E
F 12. The prosecution called four witnesses: Mr Lam (PW1); PC F
10116 (PW2); WDPC 24320 (PW3), who conducted the records of
G G
interview and Ms Sin Kam Ling (PW4), the English interpreter in the
H records of interview. H
I 13. The defendant only cross-examined Mr Lam and PC 10116. I
I explained admissibility of oral and written statements to the defendant.
J J
The defendant made no allegations of violence, threats, promises,
K K
inducements or other impropriety on the part of the police officers4. The
L
defendant did however challenge the accuracy of the questions and L
answers upon interception.
M M
14. The defendant elected not to give evidence or call witnesses.
N N
No adverse inference is drawn against the defendant for remaining silent.
O That is his right. This proves nothing one way or the other. This does not O
establish his guilt.
P P
Q Q
R R
S S
4
PC 10116 (PW2); WDPC 24320 (PW3) and Ms Sin Kam Ling (PW4) all testified that nobody
used any force on the defendant, threatened the defendant, offered the defendant any inducements
T or made the defendant any promises. I was satisfied that the oral statements attributed to the T
defendant by PC 10116 if said, were said voluntarily and that the records of interview were taken
voluntarily.
U U
V V
5
A A
B B
15. Ms Alva informed the court the defendant had a clear record.
C I direct myself as to good character both as to credibility and propensity C
5
in accordance with the decision in HKSAR v Tang Siu Man .
D D
16. In reaching my verdict I remind myself of the burden and
E E
standard of proof and that the burden is on the prosecution throughout.
F The defendant has to prove nothing. I direct myself that I must be sure of F
the guilt of the defendant before I can convict. On the other hand, if the
G G
court thinks that the defence evidence pointing to innocence is true or
H may be true, it would follow that the defence has raised sufficient doubt H
in the prosecution case and the defendant entitled to be acquitted.
I I
J 17. I remind myself that when drawing inferences from the J
evidence a court may only draw an inference if that inference is the only
K K
reasonable inference to draw from the proved facts. If from the facts
L proved there is a reasonable inference to draw against a defendant as well L
as one in his favour the adverse inference cannot be drawn.
M M
N Consideration of the evidence N
O 18. I have carefully considered all the evidence and the final O
submission of the defendant.
P P
Q 19. The main issue in the case is whether the defendant believed Q
the vinyl record player was abandoned. I will therefore first briefly
R R
summarise the evidence relating to the other elements of the offence.
S S
T T
5
[1997-98] 1 HKCFAR 107.
U U
V V
6
A A
B B
Entered as a trespasser part of a building - the staircase between the 7th
C Floor and 8th Floor, No.15 Morrison Hill Road C
D The building D
E E
20. The building situated at Nos. 15-17 Morrison Hill Road has
F eight floors and a rooftop (“the building”). The ground floor and the first F
floor are commercial premises whereas the 2nd floor to the 8th floor are
G G
domestic premises.
H H
21. Each floor had two flats and two staircases, one for No. 15
I Morrison Hill Road and one for No. 17 Morrison Hill Road. Mr Lam, I
who lived in both flats on the 8th floor and was the chairman of the
J J
Owner’s Corporation of the building, gave evidence of the layout of the
K K
building.
L L
22. The staircase for No. 15 leads to the rear of the building
M whereas the staircase for No. 17 leads to the front of the building. The M
main entrance is on Morrison Hill Road as shown in photographs 8 and 9,
N N
exhibit P156.
O O
23. A staircase leads from the main entrance to a metal gate
P P
between the 1st floor and the 2nd floor. The metal gate is secured by a
Q passcode which is only given to the owners and occupants of the building. Q
CCTV cameras are installed at the top of the staircase and by the metal
R R
gate.
S S
T T
6
The photographs, exhibit P15, were taken at various times by WDPC 24320 (PW3), who testified
when each of the photographs were taken and that she burned the photographs onto a disc.
U U
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7
A A
B B
24. After the metal gate is the staircase for No. 17. There is a
C connecting fire door on each floor linking staircase No. 17 with staircase C
No. 15. Mr Lam drew a floor plan showing the flats and the staircases
D D
(exhibit P21).
E E
25. Mr Lam said he placed the vinyl record player (exhibit P2)
F between the 7th and 8th floors on staircase No. 15. F
G G
Entered as a trespasser
H H
26. In summary PC 10116 testified that at 4:15 a.m. on 3 January
I this year he saw the defendant looking around at Sharp Street West. I
From a distance of about 10 meters PC 10116 observed the defendant
J J
turn right into Morrison Hill Road and walk to the 7-11 convenience store
K K
on Tin Lok Lane. The defendant then turned around and walked back to
L
the junction of Morrison Hill Road and Sharp Street West where PC L
10116 saw the defendant looking at the roller shutters of the buildings.
M M
27. After observing the defendant for about three minutes PC
N N
10116 saw the defendant enter the building at Nos. 15-17 Morrison Hill
O Road. At 4:23 a.m. PC 10116 saw the defendant leaving the building O
carrying a brown bag. PC 10116 followed the defendant and intercepted
P P
him at Bowrington Road. PC 10116 found inside the brown bag (exhibit
Q P1) the vinyl record player (exhibit P2). Q
R R
CCTV footage
S S
28. Mr Lam operated the CCTV system. No one else had access
T to the CCTV system and no one interfered with the system. Mr Lam T
described the CCTV system as having six cameras. Mr Lam made a copy
U U
V V
8
A A
B B
for the police of camera 1 and camera 6 which footage was played in
C court7. C
D 29. Camera 1 shows the staircase leading from the main entrance D
to the metal gate and camera 6 shows the metal gate. Camera 1 between
E E
04:19:16 and 04:19:24 shows a person entering the building and walking
F up the stairs towards the metal gate. Camera 6 between 04:19:43 and F
04:20:06 shows the same person entering the metal gate and walking
G G
upstairs. Camera 6 between 04:26:29 and 04:26:42 shows the same
H person walking down the staircase and exiting the metal gate. Camera 1 H
between 04:26:53 and 04:26:57 shows the same person leaving the
I I
building.
J J
30. PC 10116 identified the defendant as the person seen on the
K K
CCTV footage entering and leaving the building. Camera 6 shows the
L clothing of the person is the same as the clothing worn by the defendant L
as seen in photograph 358.
M M
N 31. In the records of interview the defendant told the police that N
9
he lived in Paterson Street in Causeway Bay .
O O
32. I am satisfied on this evidence that the defendant entered as a
P P
trespasser part of a building, namely the staircase between the 7th Floor
Q and 8th Floor, No.15 Morrison Hill Road. Q
R R
S S
7
Exhibit P16. The footage was played to both Mr Lam and PC 10116. Still images from the CCTV
footage have also been produced, exhibit P17(1) - (9). WDPC 24320 compiled the album.
T 8
T
This photograph was taken by WDPC 24320 on 4 January 2020.
9
See Q&A 4, 5 & 6, exhibit P19A and Q&A 4, 5 & 6, exhibit P20A.
U U
V V
9
A A
B B
Theft of the vinyl record player (exhibit P2)
C C
33. Mr Lam had purchased the vinyl record player in Sheung
D Wan in 2017 for a few hundred dollars. The vinyl record player was D
second hand and was quite dirty. Mr Lam regarded the vinyl record
E E
player as an antique because it was not produced anymore. Mr Lam
F decided to buy the vinyl record player because he thought the vinyl F
record player was quite valuable, worth about $1500-$2000.
G G
H 34. Mr Lam testified that on 28 December 2019 he started H
clearing out miscellaneous items in his flat and tidying up his flat. Mr
I I
Lam moved out items which were dirty and not quite tidy and put them
J on the staircases. The items shown in photographs 11-14, exhibit P15 J
were placed on the staircase of No. 17 and the items shown in
K K
photographs 15, 17 and 18 were placed on the staircase of No. 15.
L L
35. When asked what he intended to do after placing the items
M M
outside his home, Mr Lam replied that he would leave them there for
N some time and that when he had the time he would put some back inside N
his home and some on the rooftop.
O O
36. Mr Lam testified that he placed the vinyl record player on
P P
the staircase underneath the green case which contained a guzheng. The
Q green case is shown in photographs 17 and 18, exhibit P1510. Mr Lam Q
said he had never moved the vinyl record player. In cross-examination
R R
Mr Lam disagreed that the vinyl record player was not placed underneath
S the green case. S
T T
10
After interviewing Mr Lam WDPC 24320 returned to the building and took these photographs to
show the position where Mr Lam said he had placed the vinyl record player.
U U
V V
10
A A
B B
37. Mr Lam explained that to remove the vinyl record player the
C green case had to be taken down or something had to support the green C
case to stop the green case falling down whereby you could then slide out
D D
the vinyl record player from underneath the green case.
E E
38. Mr Lam had never seen the brown bag (exhibit P1) in which
F the defendant was carrying the vinyl record player when he was F
intercepted by PC 10116.
G G
H Oral statements H
I 39. PC 10116 testified that after intercepting the defendant he I
conducted a body search. The defendant was wearing a black waist bag
J J
across his chest (exhibit P3). Inside the waist bag PC 10116 found a
K K
damaged combination lock (exhibit P4), a black torch (exhibit P5), a blue
L
screwdriver (exhibit P6), a pair of gloves (exhibit P7), a silver manhole L
cover lifting key (exhibit P8) and a re-sealable plastic bag containing
M M
items of jewellery (exhibits P9-P14).
N N
40. After conducting the body search PC 10116 questioned the
O defendant in English: O
P P
Q. Where you go before?
Q A. I find my friend. Q
R Q. Where your friend live? R
S
A. Morrison Hill Road. S
Q. Where you live?
T T
A. Haven Building
U U
V V
11
A A
B B
41. PC 10116 then pointed to the vinyl record player and asked:
C C
Q. Where you take this?
D D
A. Take from my friend.
E Q. I saw you before you haven’t taken this box. E
F A. No reply F
G 42. PC 10116 then asked the defendant about the content of the G
waist bag. PC 10116 asked “Where you take this?” to which the
H H
defendant did not reply. When asked by the court what “this” referred to,
I whether the waist bag, all the contents or just one item, PC 10116 was I
unable to say and explained that he asked about each item individually
J J
but had forgotten the sequence. Asked again “Where you take this?” the
K defendant replied “Bought from Causeway Bay”. PC 10116 did not say K
which item this answer referred to.
L L
M 43. PC 10116 took the defendant to the building where the M
defendant said he did not know the code to enter the metal gate. The
N N
defendant was then arrested for loitering.
O O
Records of interview
P P
44. In the records of interview the defendant told the police, inter
Q Q
alia, that he was on his way home when he went into the building to
R urinate and that when he was walking up the stairs he saw on the ground R
of the staircase, among rubbish like waste paper and packaging, an old
S S
T T
U U
V V
12
A A
B B
style disc player which he picked up because he thought it was a piece of
C rubbish and had been thrown away11. C
D Discussion D
E E
45. The defendant’s claim in the records of interview that he
F thought the vinyl record player was rubbish and had been thrown away is F
different to what he told PC 10116 that he took the vinyl record player
G G
from his friend who lived in Morrison Hill Road.
H H
46. In cross-examination the defendant challenged the accuracy
I of this conversation. PC 10116 said he could not remember the defendant I
telling him he was going home and disagreed that the defendant told him
J J
that the vinyl record player had been thrown away and that he had picked
K K
it up from the staircase of the building and that the tools were used for
L
fixing things. L
M 47. The answers attributed to the defendant were not made under M
caution. In answer to the court PC 10116 said he never cautioned the
N N
defendant and explained that based on section 54 of the Police Force
O Ordinance12 he had the right to ask a series of questions. PC 10116 said O
because he was not fluent in English he did not caution the defendant13.
P P
Q 48. Taking into account that when PC 10116 saw the defendant Q
enter the building it was 4 a.m. and the defendant was not carrying
R R
anything, I am satisfied PC 10116 on seeing the defendant leave the
S S
11
See Q&A 6-11 exhibit P19A and answer to caution and Q&A 6-8 & 10-13, exhibit P20A.
T 12
T
Cap 232.
13
This answer was given after cross-examination.
U U
V V
13
A A
B B
building carrying a bag was entitled to intercept the defendant and ask
C questions without first cautioning the defendant (see for example HKSAR C
14
v Fung Wing Ching ).
D D
49. What concerns me is that the defendant was not shown a
E E
record of this conversation to see whether he agreed that was what he said.
F In answer to the court PC 10116 said he did not make a record of the F
conversation in his notebook to show to the defendant15. The records of
G G
interview do not recite the conversation.
H H
50. The courts have said that judges and magistrates will need to
I I
scrutinise very hard any reliance by the prosecution on alleged oral
J admissions which are not recorded in writing and shown to the suspect J
for his acknowledgement (see R v Chan Chi Fai & another16, HKSAR v
K K
Lau Ho Yin17 and HKSAR v Chan Yuk Ling18).
L L
51. Heeding the caution of the Court of Appeal and taking into
M M
account that the defendant was not cautioned; PC 10116 was not fluent in
N English; PC 10116 did not record the conversation in his notebook and N
the conversation was not recited in the records of interview, I am satisfied
O O
in the circumstances that it would be unfair to rely on this evidence. In
P this regard I also note that in paragraph 5 of the prosecution opening P
statement Ms Alva’s recital of the conversation is different, namely that
Q Q
the defendant said he had taken the vinyl record player from home.
R R
14
[1998] 2 HKLRD 736.
S 15 S
This answer was given after cross-examination.
16
CACC 636/1996.
T 17
T
CACC 288/2011.
18
[2013] 1 HKLRD 1093.
U U
V V
14
A A
B B
Abandoned property
C C
52. Mr Lam had only placed the vinyl record player on the
D staircase temporarily and did not give permission to anyone to take away D
the vinyl record player.
E E
F 53. If the defendant however had a genuine belief that the vinyl F
record player had been abandoned, whether that belief was reasonable or
G G
unreasonable, he would not be acting dishonestly. An unreasonable
H belief may be an honest one although a court may infer a lack of honest H
belief from the unreasonableness of that belief (see R v Small 19and R v
I I
Wood20).
J J
54. The issue for the court therefore is whether the defendant did
K K
have a genuine belief or might have had a genuine belief that the vinyl
L
record player was rubbish and had been thrown away. L
M 55. Photographs 20, 21 and 22 (exhibit P15), which were taken M
in the police station, give the appearance that the vinyl record player is in
N N
good condition. A look at the actual exhibit shows otherwise. The vinyl
O record player is very old, dirty and parts are cracked and broken. O
P P
56. Notwithstanding the suspicious circumstances in which the
Q defendant was arrested, having closely inspected the vinyl record player I Q
find that I cannot reject that the defendant had a genuine belief or might
R R
have had a genuine belief that the vinyl record player was rubbish and
S had been thrown away. S
19
T (1988) 86 Cr App R 170. T
20
[2002] EWCA Crim 832. Also see Archbold Hong Kong 2020 at §20-24 and Blackstone’s
Criminal Practice 2020 at §B4.26
U U
V V
15
A A
B B
57. In reaching this finding I have considered the location where
C the vinyl record player was placed by Mr Lam. This was challenged in C
cross-examination by the defendant. The defendant told the police in the
D D
record of interviews that the vinyl record player was on the ground 21.
E E
58. Placing the vinyl record player under the green case shown
F in photographs 17 and 18 does seem an unlikely place to put the vinyl F
record player.
G G
H 59. Even if that was where the defendant found the vinyl record H
player this does not cause me to doubt the finding that the defendant had
I I
a genuine belief or might have had a genuine belief that the vinyl record
J player was rubbish and had been thrown away. The other items shown in J
photographs 17 and 18 also largely appear to be old and dirty. I note in
K K
the record of interview the defendant said the vinyl record player was put
L among rubbish like waste paper and packaging materials22. L
M M
60. The benefit of the doubt is given to the defendant and he is
N acquitted of the charge. N
O O
P P
Q (D. J. DUFTON) Q
District Judge
R R
S S
T 21
T
See Q&A 7 & 10, exhibit P19A and answer to caution and Q&A 10, exhibit P20A.
22
See Q&A 10, exhibit P20A.
U U
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