區域法院（刑事）Deputy District Judge Bina Chainrai11/10/2016
DCCC458/2016
A A
B DCCC 458/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 458 OF 2016
E E
F F
G G
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H HKSAR H
v
I I
BUTT Ummar
J ----------------- J
K K
L Before : Deputy District Judge Bina Chainrai in Court L
Date of Verdict : 11th October, 2016 at 4:19 p.m.
M M
Present : Mr. Edward Laskey, Counsel on Fiat, for HKSAR/DPP
N Mr. Ian Polson instructed by Messrs. Massie & Clement N
(D.L.A.) for the Defendant
O O
Offences : [1] Burglary
P [2] Resisting police officers P
[3] Possession of a dangerous drug
Q Q
R R
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REASONS FOR VERDICT S
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1. The Defendant pleads not guilty to the three counts on the
C C
indictment, namely count 1 of burglary, contrary to Sections 11(1)(b) and
D (4) of the Theft Ordinance, Cap. 210, count 2 of resisting police officers in D
E
the execution of their duties, contrary to Section 63 of the Police Force E
Ordinance, Cap 232, and count 3 of possession of a dangerous drug
F F
contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.
G
134. As the Defendant spoke Urdu, an Urdu interpreter was arranged for G
him throughout the proceedings.
H H
I I
Evidence
J J
K K
2. At the outset, I was told by Mr. Laskey for the Prosecution
L that no facts could be admitted and the Prosecution would likely be calling L
6 prosecution witnesses. In the course of the trial, I was informed by Mr.
M M
Laskey that certain facts could be admitted by the Prosecution and Defence.
N The Prosecution called 3 of the 8 Prosecution witnesses listed on the list of N
Prosecution witnesses attached to the Prosecution Opening. The admitted
O O
facts were read into the record on the second day of the trial and marked as
P Exhibit P8. The exhibits referred to therein were produced by agreement P
and marked accordingly. At the conclusion of the Prosecution case, no
Q Q
submissions were made on behalf of the Defendant. I found that there was
R a case to answer on all the charges. Having had his rights explained to him, R
S
the Defendant elected to give evidence on the general issue. There were no S
other defence witnesses. At the conclusion of the evidence, and after
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hearing closing submissions, I adjourned the matter for verdict.
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3. In reaching my verdict, I remind myself of the burden and
C standard of proof, and that the burden of proof is on the prosecution C
throughout to prove guilt beyond all reasonable doubt. The Defendant has
D D
to prove nothing. I direct myself that I have to be sure of the guilt of the
E Defendant on each charge before I can convict. On the other hand, if I find E
that the Defence evidence pointing to innocence is true or may be true, it
F F
would follow that the Defence has raised sufficient doubt in the
G Prosecution case and the Defendant is entitled to be acquitted. G
H H
I
4. I remind myself that when drawing inferences from the I
evidence, a court may only draw an inference if that inference is the only
J J
reasonable inference to draw from the proved facts. If from the facts
K proved there is a reasonable inference to draw adverse to the Defendant as K
well as one in his favour, the adverse inference cannot be drawn.
L L
M M
5. I have carefully considered all the evidence adduced as well
N N
as the submissions of Mr. Laskey and Mr. Polson.
O O
P 6. It was not disputed that the burgled premises herein are P
domestic premises. The identity of the Defendant was also not in issue.
Q Q
R R
7. Although late in the day, I was concerned that Charge 2, the
S S
charge of resisting police officers in the execution of their duties, might be
T bad for duplicity, and I asked to be addressed on this issue by the parties. T
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8. Mr. Laskey submitted that the charge was not bad for
D
duplicity, and that the charge was properly laid – it was a single offence D
and the police officers were acting together – it was a single transaction.
E E
He also submitted an extract from Archbold, the 2009 edition, paragraph
F 1-123 to paragraph 1-145. These are the same paragraphs dealing with F
duplicity in the current 2016 edition of Archbold.
G G
H H
9. Mr. Polson referred to the most recent decision of the Court of
I Final Appeal in HKSAR v. Yeung Ka Sing, Carson, FACC 5 & 6 of 2015 I
where the issue of duplicity arose and was discussed in paragraphs 129 to
J J
177 of the judgment. He quoted paragraph 132 of the judgment, where the
K K
Court of Final Appeal quoted from paragraph 151 from the judgment of
L
Lord Morris of Borth-y-Gest in DPP v. Merriman [1973] AC 584: L
“151. The question arises – what is an
M M
offence ? …….In many different situations comparable
N N
questions could be asked. In my view, such questions
O
when they arise are best answered by applying common O
sense and by deciding what is fair in the circumstances.
P P
No precise formula can be laid down but …. It will often
Q be legitimate to bring a single charge in respect of what Q
might be called one activity even though that activity
R R
may involve more than one act.”
S S
Mr. Polson conceded that he was unable to say that the Defendant had been
T
treated unfairly by including PW2 in Charge 2. He accepted that it was a T
single course of conduct.
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10. After hearing from Mr. Laskey and Mr. Polson, and
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considering their submissions and the authorities put before me, I was D
satisfied to the requisite standard that Charge 2 was not bad for duplicity.
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Prosecution evidence
G G
The evidence of the police officers
H H
I I
11. PW1, Acting Sergeant 10825 (listed as PW2 on the
J Prosecution list of witnesses attached to the Prosecution Opening) testified J
that he was on duty and patrolling in plainclothes with PC16198 (PW2 in
K K
these proceedings and so referred to) at about 13.15 hours on 31/3/2016. At
L the time, they were patrolling at 9-11 Wing Lung Street in Cheung Sha L
Wan. They entered the building depicted in Photo 1 of the album of 12
M M
photographs, Exhibit P1, and walked up the stairs. When they reached the
N 2nd floor of the building, his attention was alerted. There are 2 flats on the N
2nd floor. The flat identified as Flat B, 2nd floor, No. 9 Wing Lung Street,
O O
Cheung Sha Wan, the main entrance of which is depicted in photos 2 and 3,
P consists of sub-divided ‘flats’. He and his colleague entered Flat B, and he P
noticed that the door of one of these sub-divided ‘flats’, Room B2, was
Q Q
wide open. The corridor of Flat B is depicted in photo 4, and PW1 pointed
R out Room B2 in the corridor, as being the entry way that can be seen in the R
middle of the photo. The door of Room B2 cannot be seen in photos 4 – it
S S
is depicted in photo 5. When PW1 saw the door, it was half opened, and
T not as it is depicted in photo 5 as wide opened. He heard noises coming T
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from the room, and the lights in the room were switched on. He pushed U
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open the door of the room and saw a man, whom he subsequently
C identified as the Defendant, squatting inside the room near the bed, shown C
on photo 5, with his back to the door, and he was ransacking the bed inside
D D
the room. PW1 could also see that the Defendant had a hard object at his
E back under his black upper garment. PW1 took out his warrant card and E
said to the Defendant in Cantonese ‘police, what are you doing’.
F F
Immediately, the Defendant stood up and rushed towards PW1, and
G pushed him away at his chest with both hands and ran towards the staircase. G
PW1 immediately chased after him, and kept saying in Cantonese ‘police
H H
don’t run’ and in English ‘police stop’. He caught up with the Defendant at
I the staircase landing between the 1st and 2nd floors. He grabbed the I
Defendant on his right arm with both hands but the Defendant flung him
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away – he then put his arms around the Defendant’s upper body and
K although the Defendant kept struggling and resisting, he subdued the K
Defendant with the assistance of PW2. After the Defendant had calmed
L L
down, he searched the Defendant and found a silver coloured crowbar,
M marked as Exhibit P2, tucked into the waist of the denim jeans the M
Defendant was wearing, at the back and hidden under the black top he was
N N
wearing. PW1 said he sustained tenderness, abrasion and redness of his left
O index finger, right index, middle and ring fingers during his struggle with O
the Defendant, for which he was treated at the Caritas Medical Centre. He
P P
also said that when he first arrived outside Room B2, the padlock was as
Q shown in photo 5, and photo 6 is a close-up photo of the padlock shown in Q
photo 5. He also said photo 7 was a close-up photo of the door of Room B2,
R R
and one could see the marks of prizing on the door. He said one could see
S the marks of where the blue bar shown on photos 5 and 6 was attached to S
the door. This was the condition of the door when he arrived at the
T T
premises.
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12. The Defendant was taken back to Cheung Sha Wan Police
D
Station where he was processed. PW1 searched the Defendant again at the D
police station where he found the dangerous drugs the subject matter of
E E
Charge 3 from the right front flap pocket of the Defendant’s denim jeans
F contained in a resealable plastic bag. The dangerous drugs contained in the F
resealable plastic bag was produced and marked as Exhibit P3.
G G
H H
13. The Defence case was put to PW1 in cross-examination, and
I was denied by PW1. In summary, the Defence case was that the Defendant I
had never been to the premises on the 2nd floor. When PW1 and PW2 were
J J
on the street level, something like a cork from a bottle fell from above to a
K
spot close to where they were standing. They looked up – the Defendant K
L
was on a balcony on the 5th floor of the building looking down and he said L
‘sorry’ and saluted and asked if they were hurt. PW1 and his colleague
M M
entered the building and walked up the stairs and came upon the Defendant
N as he was walking down the stairs at the landing between the 1 st and 2nd N
floors. He asked the police officers in Cantonese if they had suffered any
O O
injuries but they did not reply and asked for the Defendant’s identity card.
P The Defendant only had a slip issued from the Immigration Department as P
he was awaiting his new identity card. They asked what he was doing there
Q Q
and he replied he was there to see Ah Wah and was now leaving. There was
R a further discussion between them and the Defendant told them they could R
go to the 5th floor and ask the Chinese male there if he had been there. One
S S
of the police officers swore at him, and he told the officer not to use that
T language. One police officer pushed the Defendant on his chest with both T
hands – the Defendant fell back and hit his head against the wall and fell to
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the floor. The police officers lifted him from the floor by his collar. In
C doing so, one police officer accidentally scratched his hand against the C
wall. The Defendant was searched but nothing found. The Defendant was
D D
handcuffed. The Defendant said to the police officers that the police
E officer had injured his hand by his own carelessness. The Defendant was E
searched but nothing was found. The Defendant was kept at the staircase
F F
for about 10 minutes until other officers came and he was then told that he
G was being arrested for the offence of assaulting a police officer and taken G
back to the police station. It was only at the police station that one of the
H H
arresting police officers took out Exhibit P2, the crowbar, and told the
I Duty Officer that it was found from the Defendant. The Defendant was I
searched again but nothing was found. When he was taken out of the
J J
holding cell, one of the arresting officers took out a small plastic bag and
K told the Duty Officer it had been found from the Defendant. PW1 agreed K
that he had shown the plastic bag to the Duty Officer and told the Duty
L L
Officer he had found it from the Defendant after the Defendant was taken
M out from the holding cell. He disagreed that when the plastic bag was M
shown to the Defendant, the Defendant said he (i.e. PW1) could do
N N
whatever he wanted. He also disagreed that the Defendant told the Duty
O Officer that the police could go to the 5th floor and confirm he had spoken O
to the Chinese male there. PW1 said he had never gone up to 5 th floor nor
P P
th
had he been asked by anyone to go to the 5 floor. He also could not recall
Q any incident where something fell from the building as they arrived at the Q
building.
R R
S S
14. PW2, PC 16198, (listed as PW3 on the Prosecution list of
T T
witnesses attached to the Prosecution Opening), testified that he was
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patrolling with PW1 at the material time and place. They patrolled in the
C building at 9-11 Wing Lung Street in Cheung Sha Wan. At about 1.15 p.m. C
nd
they were going up the stairs of the building. On reaching the 2 floor, he
D D
saw that the metal gate of the unit at 9 Wing Lung Street was open. They
E went into the unit, with PW1 walking ahead of him. When they reached E
outside Room B2, he heard PW1 saying ‘Police what are you doing?’ in
F F
Cantonese and repeating ‘police’ in English. A man in a black jacket and
G blue denim jeans, whom he subsequently identified to be the Defendant, G
ran out of the room, pushing past PW1 causing him to fall to the ground.
H H
He also said ‘Police, stop’ in English but the Defendant did not stop. The
I Defendant pushed him at his left upper arm with both hands, causing him I
to lose his balance and he hit the wall. PW1 chased after the Defendant,
J J
and he immediately followed after PW1. At the staircase landing between
K the 1st and 2nd floors, he saw the Defendant struggling with PW1. He K
immediately went to assist PW1 to put the Defendant under control. They
L L
finally managed to do so. PW1 searched the Defendant and found the
M silver coloured crowbar, Exhibit P2, tucked into the back of the blue denim M
jeans worn by the Defendant. In response to a question from the Court, he
N N
said he was not clear if the crowbar was covered by anything. He
O continued to guard the Defendant. PW1 declared arrest on the Defendant O
for the offences of burglary and assaulting police officers.
P P
Q Q
15. PW2 said that when he was standing outside Room B2, he
R R
could not actually see into the room, as the corridor was relatively narrow.
S He could hear what PW1 said. He followed PW1 as he chased after the S
Defendant. The Defendant was intercepted by PW1 at the staircase landing
T T
between the 1st and 2nd floors – the Defendant was struggling with PW1
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and he went to assist PW1 to control the Defendant. He noticed when he
C boarded the police vehicle that he had sustained some injuries and he C
received treatment at the Caritas Medical Centre. He described that he had
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got these injuries when the Defendant had pushed him aside on the 2 nd
E floor and he had fallen back against the wall. He also said that the E
Defendant was emotional and spoke something in a loud voice which he
F F
did not understand. He did not hear the Defendant say that he was visiting
G somebody in the building. It was put to him in cross-examination that the G
injury to his hand was caused by his own carelessness but he disagreed. He
H H
also disagreed when it was put to him that no crowbar was ever found from
I the Defendant. Although PW2 said he had seen the head injury sustained I
by the Defendant, he was unclear as to how it was sustained, nor could he
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recall how the injury looked.
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The evidence of the tenant of Room B2
M M
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16. PW3, Mr. Lee Kwan-for, listed as PW1 on the Prosecution
O
list of witnesses attached to the Prosecution Opening, lived at Room B2 at O
the material time. He had started to live there since January, 2016. It was a
P P
small single room, a sub-divided ‘flat’ in Flat B, and referred to as Room
Q B2. He confirmed that photo 5 of Exhibit P1 was a photo of Room B2 Q
taken from the entrance of the room in March 2016. On 31 March, 2016, at
R R
about 8 a.m., he left the room after he had locked up the room. He secured
S the room with the padlock and blue securing bar shown on photos 5 and 6, S
which were in good working order at the material time. There were no
T T
prizing marks on the door. He returned at about 2.40 p.m., after he had
U received a message from the police at about 2 p.m., and found that the door U
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of his room had been prized open. The padlock had been prized from the
C door and his room ransacked, as depicted in photos 8 to 11 of Exhibit P1. C
His room had been tidy when he left, but when he returned he found things
D D
had been moved, for example the fan depicted in photo 8 as being next to
E the toilet bowl had been under his bed. The bed clothing on the bed was in E
a different state from when he had left, paper bags were on the bed, which
F F
had been hung on the wall when he had left the room that morning. He said
G that the hairdryer seen on the bed in photo 11 had been inside the green G
plastic bag and hung on the wall when he left. The packet of cigarettes that
H H
can be seen on photo 12 next to the hairdryer had been inside the white
I plastic bag on the bed and it was hung on the wall when he had left the I
room that morning. Nothing was missing from the room when he checked,
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but the room had been ransacked.
K K
L L
17. He was asked in cross-examination if the building was due for
M demolishment and he confirmed it was. It was put to him that he was living M
there illegally but he said he did not know that and he had paid rent to live
N N
there. He was asked if he had heard that a Chinese male named Ah Wah
O lived on 5th floor of the building – he said he had not heard that – he did not O
know.
P P
Q Q
Admitted facts
R R
S S
18. Admitted facts under Section 65C of the Criminal Procedure
T Ordinance, Cap. 221, were marked as Exhibit P8. These disclosed, inter T
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alia, that: U
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a) A transparent plastic bag containing a crystalline
C substance marked as Exhibit P3 was transported from C
the Cheung Sha Wan Police Station to the Forensic
D D
Science Laboratory on 1 April, 2016. It was examined,
E and found to contain 0.12 grammes of a crystalline E
solid containing methamphetamine, as set out in the
F F
Government Chemist’s Certificate, Exhibit P7. It was
G retrieved from the Forensic Laboratory on 27 April, G
2016, and thereafter kept in secure custody.
H H
b) On 31 March, 2016 PWs 1 and 2, and the Defendant
I I
were examined by doctors, and the findings are
J contained in the medical reports of the doctors, which J
were produced by agreement and marked as Exhibits
K K
P4, P5 and P6 respectively.
L L
c) On 31 March, 2016 PC 2808 took 12 photographs
M of the scene at 1520 hours. This album of 12 M
photographs was produced by agreement and marked
N N
as Exhibit P1, photos 1 to 12.
O O
d) The crowbar, exhibit P2, was not examined for
P fingerprints or DNA. P
Q Q
R
19. PW1’s injuries are set out in exhibit P4, to be multiple R
abrasions over left index finger, and right index finger, middle and ring
S S
fingers at proximal interphalangeal joint level. Range of movement was
T
full. PW2’s injuries were described in his medical report, Exhibit P5, to be T
abrasion at right hand and right ring finger. The Defendant’s injuries are
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contained in the medical examination form, Exhibit P6, and described as
C fresh injuries – tenderness and abrasion on the head. C
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Defence evidence
E E
F F
20. The Defendant testified that he was aged 42 years and born in
G G
Pakistan. He came to Hong Kong in 1996. He had received primary
H education in Pakistan, up to 3rd or 4th standard. Prior to his present arrest, he H
was a transport worker employed by DHL and had been so employed since
I I
about 2006.
J J
K K
21. He testified that his visit on 31 March, 2016 was his second
L visit to the building at 9-11 Wing Lung Street. The first time he had been L
there was on about 12 March, 2016, when his friend Ah Wah who lived on
M M
the 5th floor of the building brought him there.
N N
O O
22. He went to the building on 31 March, 2016 to meet Ah Wah to
P collect from Ah Wah the $2,000 he had lent him previously. It was about P
lunchtime when he reached, although he was not sure of the exact time, and
Q Q
he went directly to the 5th floor. Ah Wah was not there – he saw a Chinese
R male sleeping in the corridor outside Ah Wah’s room. He spoke to the male R
who told him Ah Wah had gone downstairs 5 to 10 minutes previously. He
S S
asked the man if he had Ah Wah’s telephone number, but was told he did
T not. There was a flat opposite to the one where Ah Wah’s room was – it T
was all broken up. He initially sat at the doorway of the flat, but felt
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uncomfortable as there were people coming and going, so he went to stand
C in the balcony of that flat. It was quite dirty because of the rain and there C
was water on the balcony, and a lot of discarded cans like coke cans on the
D D
balcony. He stood in the balcony to see if Ah Wah was in the market
E somewhere and he would ask Ah Wah to come up. Something fell from E
the balcony to the street below – he thought it was the lid or cork of a bottle.
F F
The two police officers, i.e. PWs 1 and 2, were at the street level when he
G looked down and saw PW1 looking up. He saluted him and asked him in G
punti “moh yeh mah?” from the 5th floor balcony. Nothing happened after
H H
that – the police officers did not reply him – he turned back and then went
I downstairs. On the landing between the 1st and 2nd floors he came upon I
PWs 1 and 2 who were coming up the stairs as he was going down the
J J
stairs. He asked them again in punti “moh yeh mah” - he said he asked
K them because he had seen something had fallen from the balcony. PW1 K
then showed him his warrant card so he knew they were police officers.
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PW1 asked him what he was doing there and he told PW1 that he had a
M friend up there but he was not there and a Chinese had told him he had gone M
down. He had gone to the balcony to look for him and something fell from
N N
the balcony. He asked the police officers again if they were hurt. PW1
O ignored him and swore at him in Chinese. The Defendant told PW1 not to O
swear and told PW1 if he did not believe the him, he could come up to the
P P
5 floor – there was a person sleeping there and he could ask him the
th
Q Defendant’s reason for going there. He was sworn at again and he again Q
told the police officers not to swear at him. PW1 pushed him with both
R R
hands at his chest and he hit the wall behind him and the back of his head
S hit the wall – he felt dizzy and fell to the ground. The two police officers S
came upon him and PW1 tried to pull him up by his collar – he confirmed
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in response to a question from the court that what he was wearing was what
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he was wearing at that time. The Defendant was wearing a black upper
C garment that could be described as a jacket. It had a red zipper at the front. C
The Defendant said the zipper of his garment was pulled up and when PW1
D D
pulled his garment by the collar, he felt choked and shook his head to
E release himself. He told PW1 to leave him i.e. release him. He stood up. He E
was searched by PW2 – he took out what he had – his mobile phone and
F F
immigration slip – he had no money on him. Shortly before he was
G searched he had seen PW1’s left hand and saw the middle finger of his left G
hand was bleeding a little bit. He told PW1 that his injuries were sustained
H H
because of his own foolishness. If PW1 had not pushed him nothing would
I have happened. He told PW1 he could go up to the 5th floor and ask his I
reason for coming to the building – he said this to PW1 in punti. He was
J J
handcuffed and PW2 declared arrest on him for the offence of injuring
K police officers. Soon after, some other police officers arrived. He was K
then taken to the Cheung Sha Wan Police Station and it was only there that
L L
the crowbar, Exhibit P2, was shown to the Duty Officer by PW1. The
M Defendant told the Duty Officer that nothing had been found on him and he M
was being framed. He said he did not see where PW1 got the crowbar from.
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He told the Duty Officer that the crowbar could be checked for his
O fingerprints and DNA and the Duty Officer replied ‘we will check, we will O
check’.
P P
Q Q
23. He was searched again at the police station by 3 or 4 police
R R
officers, not PWs 1 and 2, but nothing was found. Then ‘he’ came into the
S room where the Defendant was being searched with a plastic bag and said S
to the police officers searching the Defendant in Chinese that the plastic
T T
bag had been found from the Defendant’s pocket pointing to the right front
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jeans pocket. The Defendant said ‘You put a rod on me. Now I don’t know
C where you took the drugs from. Now you can do whatever you want. What C
can I do’. He later refused to sign on the tamperproof evidence bag and
D D
told the police officer “I will talk to you in Court’. He did not know he had
E been charged with burglary until after he appeared in court and he was E
served with the bundle.
F F
G G
24. The Defendant was cross-examined about how long he had
H H
known Ah Wah. The Defendant said he had known him for 3 to 4 years. He
I
had not come to know Ah Wah from work but would meet him sometimes I
in Sham Shui Po. He regarded Ah Wah as a casual friend. Prior to 31
J J
March 2016, he had last seen Ah Wah on 12 March 2016 when Ah Wah
K had taken him to his room on 5th floor. He did not know if Ah Wah had any K
job. He said Ah Wah had told him he was staying on 5th floor illegally, as
L L
a squatter, but the sitting room of Ah Wah’s room that Ah Wah had taken
M him to was nicely decorated. He knew Ah Wah was on welfare, He lent M
him $2,000 on 12 March, 2016. He did not regard $2,000 as a substantial
N N
amount. But on 31 March, 2016 he thought to get back the loan of $2,000
O from Ah Wah because he was in great need of money. He was asked what O
effort he had made to see if Ah Wah would be there in the middle of the
P P
day on 31 March 2016, and the Defendant replied that he was just passing
Q by and he went up and he usually passed that place once or twice a day. He Q
agreed when it was put to him that he had made no efforts to check if Ah
R R
Wah was at home before he went there. He said Ah Wah had given him his
S telephone number when he had lent him the money, and his telephone S
number had been stored on his mobile telephone, but it had been deleted
T T
from his mobile telephone as the battery had been taken out from his
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mobile telephone. He was asked if he knew anyone he could contact to get
C Ah Wah’s telephone number. He said initially he did not, and then that Ah C
Wah’s friends were also his friends, and before going he had asked one or
D D
two persons and they said they did not have the telephone number of Ah
E Wah. He was asked if he was in such need of money why he had not E
immediately gone to look for Ah Wah as soon as he was able on 30 March,
F F
2016, but he said he had actually forgotten that he had loan $2,000 to Ah
G Wah. He only remembered on 31 March, 2016. He did not know Ah G
Wah’s full name. He had intended to wait for Ah Wah for half an hour. But
H H
he did not – the whole incident from the time he entered the building till he
I met the police officers on the staircase landing was less than 10 minutes. I
J J
K Discussion K
L L
25. In the course of his testimony, the Defendant on a number of
M M
occasions himself referred to having been detained at the Laichikok
N N
Reception Centre from 14 to 30 March 2016 before being granted bail. I
O
had asked to be addressed in regard to this by Mr. Laskey and Mr. Polson. O
In his closing argument, Mr. Laskey submitted that this testimony was not
P P
prejudicial to the Defendant – it was raised by him and related only to his
Q being detained and he was subsequently granted bail according to his Q
testimony. Mr. Polson also agreed that this could be disregarded by the
R R
Court. In reaching my verdict, I disregarded that part of his testimony
S where he referred to having been at Lai Chi Kok Detention Centre. S
T T
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26. The only issue is the credibility of witnesses. If I find the
D
Prosecution witnesses are credible and truthful, then their evidence would D
prove that the Defendant was the burglar in Room B2 that the police
E E
officers PWs 1 and 2 came upon as they were patrolling the building, that
F he rushed out of the room when asked by PW1 what he was doing, that he F
resisted the arrest by PWs 1 and 2, that the crowbar Exhibit P2 was found
G G
from him at the staircase landing, and the dangerous drugs Exhibit P3 was
H found from him at the Cheung Sha Wan Police Station when he was H
searched there.
I I
J J
27. Mr. Polson accepted that as Exhibit P2 the crowbar had been
K K
handled by persons not wearing gloves, it was unlikely that any DNA or
L
fingerprints could be lifted. However, the hairdryer found on the bed as L
depicted in photo 12 of Exhibit P1 should have been. It had been moved
M M
onto the bed so it must have been touched. The same could be said for the
N cigarette packet on the bed next to the hairdryer. Whether the hairdryer was N
examined for fingerprints or DNA was not put to any of the Prosecution
O O
witnesses. I found nothing in that submission in respect of the hairdryer
P not having been examined for fingerprints or DNA. P
Q Q
R
28. Mr. Polson also submitted that the photo of the door as R
depicted in photo 6 and the condition of the screws as shown on the photo
S S
meant the door could not be secured in that condition. Counsel was
T
referring to the screws – he had asked PW1 about this – PW1 said that was T
what he had seen when he arrived at the premises. PW3 testified that he
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had secured the premises with the padlock before he left. There was no
C evidence as to how the screws got into that position or whether that meant C
the door could not be secured. I saw nothing in this submission.
D D
E E
29. I accepted the evidence of PW3 that he had securely locked
F F
his room B2 before he left the premises and when he returned, he found the
G
padlock had been prized and door prized open and there were signs of G
ransacking in the room and things having been moved around in the room.
H H
I I
30. It was submitted by Mr. Polson that the Prosecution should
J have called the Duty Officer to rebut defence evidence that he had J
protested to the Duty Officer in respect of the dangerous drugs and the
K K
crowbar. Again, I saw no merit in this argument. PW1 was cross-examined
L in respect of what happened at the Cheung Sha Wan Police Station when L
the Defendant was brought before the Duty Officer. It was suggested to
M M
PW1 that at the police station, either he or PW2 had produced the crowbar
N N
to the Duty Officer and told the Duty Officer that it was found from the
O
Defendant – PW1 had disagreed. It was also put to him that nothing was O
found from the Defendant when he was further searched. PW1 had
P P
disagreed. It was put to him that the Defendant had told the Duty Officer
Q that the police could go to the 5th floor to confirm if he had spoken to the Q
Chinese male there. PW1 had disagreed that this was said to the Duty
R R
Officer by the Defendant.
S S
T 31. PW 1 gave evidence of how he came upon the Defendant T
U
inside Room B2, that he was squatting near the bed in the room and U
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ransacking the bed. He revealed his police identity and asked what the
C Defendant was doing – the Defendant rushed from the room, pushing him C
at his chest and pushing PW2. He chased after the Defendant, he never lost
D D
sight of him, and after a brief struggle he and PW2 were able to subdue the
E Defendant on the staircase landing between the 1st and 2nd floors. When he E
was searched at the staircase landing, the crowbar Exhibit P2 was found.
F F
During a subsequent search at the Cheung Sha Wan Police Station, the
G dangerous drugs Exhibit P3 was found. G
H H
I
32. PW2’s evidence supported that of PW1. There were some I
minor discrepancies but none that cast doubt on their voracity as witnesses.
J J
K K
33. I found PWs 1, 2 and 3 were not prone to exaggeration and
L doing their best to tell the Court what had happened at the material time L
and place. I accepted their evidence in its entirety.
M M
N N
34. I have no hesitation in rejecting the Defendant’s evidence that
O O
th
he went to the building to the 5 floor to look for his friend Ah Wah to
P recover a loan of $2,000 that he had made to him. I do not find this P
evidence credible. I considered the submissions made on behalf of the
Q Q
Defendant and had no hesitation in rejecting the Defendant’s evidence. I
R find it inherently improbable that he would lend $2,000 to ‘a friend’ that he R
did not know the full name of, who he knew was unemployed and on
S S
welfare, and living as a squatter in the premises he says he was taken to by
T his friend. He was evasive when giving evidence. Initially he said he had T
U
made no effort to check if Ah Wah would be there before he went to the 5th U
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floor – he usually passed the building once or twice a day. Then he said he
C had asked some mutual friends for Ah Wah’s phone number, which he said C
had been deleted from his mobile phone, but they did not have it. He said
D D
he had asked the Chinese male he saw sleeping in the corridor for the
E number but the male did not have it. He said he went to the balcony to see E
if he could see Ah Wah from the balcony and if he did he would ask Ah
F F
Wah to come up – this was a balcony on the 5th floor. He said he thought
G something had fallen from the balcony when he saw PW1 looking up and G
he asked ‘moh yeh mah’ but received no reply. He did not actually see
H H
what had fallen – when he saw PW1 looking up he thought something had
I fallen. He had intended to wait for Ah Wah for at least half an hour, but I
changed his mind and left within 10 minutes, and he came upon the police
J J
officers on the staircase landing and he asked them again ‘moh yeh mah’.
K He did not see what had fallen but thought it was a lid or cork only because K
he saw a police officer looking up. I did not believe the Defendant. Even
L L
though I do not believe the Defendant, that does not determine the matter
M in favour of the Prosecution. The Defendant has to prove nothing. M
N N
O 35. I found the prosecution witnesses to be honest and credible O
witnesses, who each gave their evidence in a straightforward, cogent and
P P
direct manner. That I comment thus is not to misconstrue the burden of
Q proof remaining throughout upon the Prosecution to prove guilt beyond all Q
reasonable doubt but takes account of practical matters pertaining to the
R R
credibility of witnesses and the weight to be attached to evidence.
S S
T T
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36. I am satisfied that the Prosecution has proved all the charges
C against the Defendant beyond all reasonable doubt, and accordingly he is C
convicted on all the charges on the indictment.
D D
E E
Bina Chainrai
F F
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
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B DCCC 458/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 458 OF 2016
E E
F F
G G
-----------------
H HKSAR H
v
I I
BUTT Ummar
J ----------------- J
K K
L Before : Deputy District Judge Bina Chainrai in Court L
Date of Verdict : 11th October, 2016 at 4:19 p.m.
M M
Present : Mr. Edward Laskey, Counsel on Fiat, for HKSAR/DPP
N Mr. Ian Polson instructed by Messrs. Massie & Clement N
(D.L.A.) for the Defendant
O O
Offences : [1] Burglary
P [2] Resisting police officers P
[3] Possession of a dangerous drug
Q Q
R R
-------------------------------------------
S
REASONS FOR VERDICT S
-------------------------------------------
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1. The Defendant pleads not guilty to the three counts on the
C C
indictment, namely count 1 of burglary, contrary to Sections 11(1)(b) and
D (4) of the Theft Ordinance, Cap. 210, count 2 of resisting police officers in D
E
the execution of their duties, contrary to Section 63 of the Police Force E
Ordinance, Cap 232, and count 3 of possession of a dangerous drug
F F
contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.
G
134. As the Defendant spoke Urdu, an Urdu interpreter was arranged for G
him throughout the proceedings.
H H
I I
Evidence
J J
K K
2. At the outset, I was told by Mr. Laskey for the Prosecution
L that no facts could be admitted and the Prosecution would likely be calling L
6 prosecution witnesses. In the course of the trial, I was informed by Mr.
M M
Laskey that certain facts could be admitted by the Prosecution and Defence.
N The Prosecution called 3 of the 8 Prosecution witnesses listed on the list of N
Prosecution witnesses attached to the Prosecution Opening. The admitted
O O
facts were read into the record on the second day of the trial and marked as
P Exhibit P8. The exhibits referred to therein were produced by agreement P
and marked accordingly. At the conclusion of the Prosecution case, no
Q Q
submissions were made on behalf of the Defendant. I found that there was
R a case to answer on all the charges. Having had his rights explained to him, R
S
the Defendant elected to give evidence on the general issue. There were no S
other defence witnesses. At the conclusion of the evidence, and after
T T
hearing closing submissions, I adjourned the matter for verdict.
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3. In reaching my verdict, I remind myself of the burden and
C standard of proof, and that the burden of proof is on the prosecution C
throughout to prove guilt beyond all reasonable doubt. The Defendant has
D D
to prove nothing. I direct myself that I have to be sure of the guilt of the
E Defendant on each charge before I can convict. On the other hand, if I find E
that the Defence evidence pointing to innocence is true or may be true, it
F F
would follow that the Defence has raised sufficient doubt in the
G Prosecution case and the Defendant is entitled to be acquitted. G
H H
I
4. I remind myself that when drawing inferences from the I
evidence, a court may only draw an inference if that inference is the only
J J
reasonable inference to draw from the proved facts. If from the facts
K proved there is a reasonable inference to draw adverse to the Defendant as K
well as one in his favour, the adverse inference cannot be drawn.
L L
M M
5. I have carefully considered all the evidence adduced as well
N N
as the submissions of Mr. Laskey and Mr. Polson.
O O
P 6. It was not disputed that the burgled premises herein are P
domestic premises. The identity of the Defendant was also not in issue.
Q Q
R R
7. Although late in the day, I was concerned that Charge 2, the
S S
charge of resisting police officers in the execution of their duties, might be
T bad for duplicity, and I asked to be addressed on this issue by the parties. T
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8. Mr. Laskey submitted that the charge was not bad for
D
duplicity, and that the charge was properly laid – it was a single offence D
and the police officers were acting together – it was a single transaction.
E E
He also submitted an extract from Archbold, the 2009 edition, paragraph
F 1-123 to paragraph 1-145. These are the same paragraphs dealing with F
duplicity in the current 2016 edition of Archbold.
G G
H H
9. Mr. Polson referred to the most recent decision of the Court of
I Final Appeal in HKSAR v. Yeung Ka Sing, Carson, FACC 5 & 6 of 2015 I
where the issue of duplicity arose and was discussed in paragraphs 129 to
J J
177 of the judgment. He quoted paragraph 132 of the judgment, where the
K K
Court of Final Appeal quoted from paragraph 151 from the judgment of
L
Lord Morris of Borth-y-Gest in DPP v. Merriman [1973] AC 584: L
“151. The question arises – what is an
M M
offence ? …….In many different situations comparable
N N
questions could be asked. In my view, such questions
O
when they arise are best answered by applying common O
sense and by deciding what is fair in the circumstances.
P P
No precise formula can be laid down but …. It will often
Q be legitimate to bring a single charge in respect of what Q
might be called one activity even though that activity
R R
may involve more than one act.”
S S
Mr. Polson conceded that he was unable to say that the Defendant had been
T
treated unfairly by including PW2 in Charge 2. He accepted that it was a T
single course of conduct.
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10. After hearing from Mr. Laskey and Mr. Polson, and
D
considering their submissions and the authorities put before me, I was D
satisfied to the requisite standard that Charge 2 was not bad for duplicity.
E E
F F
Prosecution evidence
G G
The evidence of the police officers
H H
I I
11. PW1, Acting Sergeant 10825 (listed as PW2 on the
J Prosecution list of witnesses attached to the Prosecution Opening) testified J
that he was on duty and patrolling in plainclothes with PC16198 (PW2 in
K K
these proceedings and so referred to) at about 13.15 hours on 31/3/2016. At
L the time, they were patrolling at 9-11 Wing Lung Street in Cheung Sha L
Wan. They entered the building depicted in Photo 1 of the album of 12
M M
photographs, Exhibit P1, and walked up the stairs. When they reached the
N 2nd floor of the building, his attention was alerted. There are 2 flats on the N
2nd floor. The flat identified as Flat B, 2nd floor, No. 9 Wing Lung Street,
O O
Cheung Sha Wan, the main entrance of which is depicted in photos 2 and 3,
P consists of sub-divided ‘flats’. He and his colleague entered Flat B, and he P
noticed that the door of one of these sub-divided ‘flats’, Room B2, was
Q Q
wide open. The corridor of Flat B is depicted in photo 4, and PW1 pointed
R out Room B2 in the corridor, as being the entry way that can be seen in the R
middle of the photo. The door of Room B2 cannot be seen in photos 4 – it
S S
is depicted in photo 5. When PW1 saw the door, it was half opened, and
T not as it is depicted in photo 5 as wide opened. He heard noises coming T
U
from the room, and the lights in the room were switched on. He pushed U
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open the door of the room and saw a man, whom he subsequently
C identified as the Defendant, squatting inside the room near the bed, shown C
on photo 5, with his back to the door, and he was ransacking the bed inside
D D
the room. PW1 could also see that the Defendant had a hard object at his
E back under his black upper garment. PW1 took out his warrant card and E
said to the Defendant in Cantonese ‘police, what are you doing’.
F F
Immediately, the Defendant stood up and rushed towards PW1, and
G pushed him away at his chest with both hands and ran towards the staircase. G
PW1 immediately chased after him, and kept saying in Cantonese ‘police
H H
don’t run’ and in English ‘police stop’. He caught up with the Defendant at
I the staircase landing between the 1st and 2nd floors. He grabbed the I
Defendant on his right arm with both hands but the Defendant flung him
J J
away – he then put his arms around the Defendant’s upper body and
K although the Defendant kept struggling and resisting, he subdued the K
Defendant with the assistance of PW2. After the Defendant had calmed
L L
down, he searched the Defendant and found a silver coloured crowbar,
M marked as Exhibit P2, tucked into the waist of the denim jeans the M
Defendant was wearing, at the back and hidden under the black top he was
N N
wearing. PW1 said he sustained tenderness, abrasion and redness of his left
O index finger, right index, middle and ring fingers during his struggle with O
the Defendant, for which he was treated at the Caritas Medical Centre. He
P P
also said that when he first arrived outside Room B2, the padlock was as
Q shown in photo 5, and photo 6 is a close-up photo of the padlock shown in Q
photo 5. He also said photo 7 was a close-up photo of the door of Room B2,
R R
and one could see the marks of prizing on the door. He said one could see
S the marks of where the blue bar shown on photos 5 and 6 was attached to S
the door. This was the condition of the door when he arrived at the
T T
premises.
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12. The Defendant was taken back to Cheung Sha Wan Police
D
Station where he was processed. PW1 searched the Defendant again at the D
police station where he found the dangerous drugs the subject matter of
E E
Charge 3 from the right front flap pocket of the Defendant’s denim jeans
F contained in a resealable plastic bag. The dangerous drugs contained in the F
resealable plastic bag was produced and marked as Exhibit P3.
G G
H H
13. The Defence case was put to PW1 in cross-examination, and
I was denied by PW1. In summary, the Defence case was that the Defendant I
had never been to the premises on the 2nd floor. When PW1 and PW2 were
J J
on the street level, something like a cork from a bottle fell from above to a
K
spot close to where they were standing. They looked up – the Defendant K
L
was on a balcony on the 5th floor of the building looking down and he said L
‘sorry’ and saluted and asked if they were hurt. PW1 and his colleague
M M
entered the building and walked up the stairs and came upon the Defendant
N as he was walking down the stairs at the landing between the 1 st and 2nd N
floors. He asked the police officers in Cantonese if they had suffered any
O O
injuries but they did not reply and asked for the Defendant’s identity card.
P The Defendant only had a slip issued from the Immigration Department as P
he was awaiting his new identity card. They asked what he was doing there
Q Q
and he replied he was there to see Ah Wah and was now leaving. There was
R a further discussion between them and the Defendant told them they could R
go to the 5th floor and ask the Chinese male there if he had been there. One
S S
of the police officers swore at him, and he told the officer not to use that
T language. One police officer pushed the Defendant on his chest with both T
hands – the Defendant fell back and hit his head against the wall and fell to
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the floor. The police officers lifted him from the floor by his collar. In
C doing so, one police officer accidentally scratched his hand against the C
wall. The Defendant was searched but nothing found. The Defendant was
D D
handcuffed. The Defendant said to the police officers that the police
E officer had injured his hand by his own carelessness. The Defendant was E
searched but nothing was found. The Defendant was kept at the staircase
F F
for about 10 minutes until other officers came and he was then told that he
G was being arrested for the offence of assaulting a police officer and taken G
back to the police station. It was only at the police station that one of the
H H
arresting police officers took out Exhibit P2, the crowbar, and told the
I Duty Officer that it was found from the Defendant. The Defendant was I
searched again but nothing was found. When he was taken out of the
J J
holding cell, one of the arresting officers took out a small plastic bag and
K told the Duty Officer it had been found from the Defendant. PW1 agreed K
that he had shown the plastic bag to the Duty Officer and told the Duty
L L
Officer he had found it from the Defendant after the Defendant was taken
M out from the holding cell. He disagreed that when the plastic bag was M
shown to the Defendant, the Defendant said he (i.e. PW1) could do
N N
whatever he wanted. He also disagreed that the Defendant told the Duty
O Officer that the police could go to the 5th floor and confirm he had spoken O
to the Chinese male there. PW1 said he had never gone up to 5 th floor nor
P P
th
had he been asked by anyone to go to the 5 floor. He also could not recall
Q any incident where something fell from the building as they arrived at the Q
building.
R R
S S
14. PW2, PC 16198, (listed as PW3 on the Prosecution list of
T T
witnesses attached to the Prosecution Opening), testified that he was
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patrolling with PW1 at the material time and place. They patrolled in the
C building at 9-11 Wing Lung Street in Cheung Sha Wan. At about 1.15 p.m. C
nd
they were going up the stairs of the building. On reaching the 2 floor, he
D D
saw that the metal gate of the unit at 9 Wing Lung Street was open. They
E went into the unit, with PW1 walking ahead of him. When they reached E
outside Room B2, he heard PW1 saying ‘Police what are you doing?’ in
F F
Cantonese and repeating ‘police’ in English. A man in a black jacket and
G blue denim jeans, whom he subsequently identified to be the Defendant, G
ran out of the room, pushing past PW1 causing him to fall to the ground.
H H
He also said ‘Police, stop’ in English but the Defendant did not stop. The
I Defendant pushed him at his left upper arm with both hands, causing him I
to lose his balance and he hit the wall. PW1 chased after the Defendant,
J J
and he immediately followed after PW1. At the staircase landing between
K the 1st and 2nd floors, he saw the Defendant struggling with PW1. He K
immediately went to assist PW1 to put the Defendant under control. They
L L
finally managed to do so. PW1 searched the Defendant and found the
M silver coloured crowbar, Exhibit P2, tucked into the back of the blue denim M
jeans worn by the Defendant. In response to a question from the Court, he
N N
said he was not clear if the crowbar was covered by anything. He
O continued to guard the Defendant. PW1 declared arrest on the Defendant O
for the offences of burglary and assaulting police officers.
P P
Q Q
15. PW2 said that when he was standing outside Room B2, he
R R
could not actually see into the room, as the corridor was relatively narrow.
S He could hear what PW1 said. He followed PW1 as he chased after the S
Defendant. The Defendant was intercepted by PW1 at the staircase landing
T T
between the 1st and 2nd floors – the Defendant was struggling with PW1
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and he went to assist PW1 to control the Defendant. He noticed when he
C boarded the police vehicle that he had sustained some injuries and he C
received treatment at the Caritas Medical Centre. He described that he had
D D
got these injuries when the Defendant had pushed him aside on the 2 nd
E floor and he had fallen back against the wall. He also said that the E
Defendant was emotional and spoke something in a loud voice which he
F F
did not understand. He did not hear the Defendant say that he was visiting
G somebody in the building. It was put to him in cross-examination that the G
injury to his hand was caused by his own carelessness but he disagreed. He
H H
also disagreed when it was put to him that no crowbar was ever found from
I the Defendant. Although PW2 said he had seen the head injury sustained I
by the Defendant, he was unclear as to how it was sustained, nor could he
J J
recall how the injury looked.
K K
L L
The evidence of the tenant of Room B2
M M
N N
16. PW3, Mr. Lee Kwan-for, listed as PW1 on the Prosecution
O
list of witnesses attached to the Prosecution Opening, lived at Room B2 at O
the material time. He had started to live there since January, 2016. It was a
P P
small single room, a sub-divided ‘flat’ in Flat B, and referred to as Room
Q B2. He confirmed that photo 5 of Exhibit P1 was a photo of Room B2 Q
taken from the entrance of the room in March 2016. On 31 March, 2016, at
R R
about 8 a.m., he left the room after he had locked up the room. He secured
S the room with the padlock and blue securing bar shown on photos 5 and 6, S
which were in good working order at the material time. There were no
T T
prizing marks on the door. He returned at about 2.40 p.m., after he had
U received a message from the police at about 2 p.m., and found that the door U
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of his room had been prized open. The padlock had been prized from the
C door and his room ransacked, as depicted in photos 8 to 11 of Exhibit P1. C
His room had been tidy when he left, but when he returned he found things
D D
had been moved, for example the fan depicted in photo 8 as being next to
E the toilet bowl had been under his bed. The bed clothing on the bed was in E
a different state from when he had left, paper bags were on the bed, which
F F
had been hung on the wall when he had left the room that morning. He said
G that the hairdryer seen on the bed in photo 11 had been inside the green G
plastic bag and hung on the wall when he left. The packet of cigarettes that
H H
can be seen on photo 12 next to the hairdryer had been inside the white
I plastic bag on the bed and it was hung on the wall when he had left the I
room that morning. Nothing was missing from the room when he checked,
J J
but the room had been ransacked.
K K
L L
17. He was asked in cross-examination if the building was due for
M demolishment and he confirmed it was. It was put to him that he was living M
there illegally but he said he did not know that and he had paid rent to live
N N
there. He was asked if he had heard that a Chinese male named Ah Wah
O lived on 5th floor of the building – he said he had not heard that – he did not O
know.
P P
Q Q
Admitted facts
R R
S S
18. Admitted facts under Section 65C of the Criminal Procedure
T Ordinance, Cap. 221, were marked as Exhibit P8. These disclosed, inter T
U
alia, that: U
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a) A transparent plastic bag containing a crystalline
C substance marked as Exhibit P3 was transported from C
the Cheung Sha Wan Police Station to the Forensic
D D
Science Laboratory on 1 April, 2016. It was examined,
E and found to contain 0.12 grammes of a crystalline E
solid containing methamphetamine, as set out in the
F F
Government Chemist’s Certificate, Exhibit P7. It was
G retrieved from the Forensic Laboratory on 27 April, G
2016, and thereafter kept in secure custody.
H H
b) On 31 March, 2016 PWs 1 and 2, and the Defendant
I I
were examined by doctors, and the findings are
J contained in the medical reports of the doctors, which J
were produced by agreement and marked as Exhibits
K K
P4, P5 and P6 respectively.
L L
c) On 31 March, 2016 PC 2808 took 12 photographs
M of the scene at 1520 hours. This album of 12 M
photographs was produced by agreement and marked
N N
as Exhibit P1, photos 1 to 12.
O O
d) The crowbar, exhibit P2, was not examined for
P fingerprints or DNA. P
Q Q
R
19. PW1’s injuries are set out in exhibit P4, to be multiple R
abrasions over left index finger, and right index finger, middle and ring
S S
fingers at proximal interphalangeal joint level. Range of movement was
T
full. PW2’s injuries were described in his medical report, Exhibit P5, to be T
abrasion at right hand and right ring finger. The Defendant’s injuries are
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contained in the medical examination form, Exhibit P6, and described as
C fresh injuries – tenderness and abrasion on the head. C
D D
Defence evidence
E E
F F
20. The Defendant testified that he was aged 42 years and born in
G G
Pakistan. He came to Hong Kong in 1996. He had received primary
H education in Pakistan, up to 3rd or 4th standard. Prior to his present arrest, he H
was a transport worker employed by DHL and had been so employed since
I I
about 2006.
J J
K K
21. He testified that his visit on 31 March, 2016 was his second
L visit to the building at 9-11 Wing Lung Street. The first time he had been L
there was on about 12 March, 2016, when his friend Ah Wah who lived on
M M
the 5th floor of the building brought him there.
N N
O O
22. He went to the building on 31 March, 2016 to meet Ah Wah to
P collect from Ah Wah the $2,000 he had lent him previously. It was about P
lunchtime when he reached, although he was not sure of the exact time, and
Q Q
he went directly to the 5th floor. Ah Wah was not there – he saw a Chinese
R male sleeping in the corridor outside Ah Wah’s room. He spoke to the male R
who told him Ah Wah had gone downstairs 5 to 10 minutes previously. He
S S
asked the man if he had Ah Wah’s telephone number, but was told he did
T not. There was a flat opposite to the one where Ah Wah’s room was – it T
was all broken up. He initially sat at the doorway of the flat, but felt
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uncomfortable as there were people coming and going, so he went to stand
C in the balcony of that flat. It was quite dirty because of the rain and there C
was water on the balcony, and a lot of discarded cans like coke cans on the
D D
balcony. He stood in the balcony to see if Ah Wah was in the market
E somewhere and he would ask Ah Wah to come up. Something fell from E
the balcony to the street below – he thought it was the lid or cork of a bottle.
F F
The two police officers, i.e. PWs 1 and 2, were at the street level when he
G looked down and saw PW1 looking up. He saluted him and asked him in G
punti “moh yeh mah?” from the 5th floor balcony. Nothing happened after
H H
that – the police officers did not reply him – he turned back and then went
I downstairs. On the landing between the 1st and 2nd floors he came upon I
PWs 1 and 2 who were coming up the stairs as he was going down the
J J
stairs. He asked them again in punti “moh yeh mah” - he said he asked
K them because he had seen something had fallen from the balcony. PW1 K
then showed him his warrant card so he knew they were police officers.
L L
PW1 asked him what he was doing there and he told PW1 that he had a
M friend up there but he was not there and a Chinese had told him he had gone M
down. He had gone to the balcony to look for him and something fell from
N N
the balcony. He asked the police officers again if they were hurt. PW1
O ignored him and swore at him in Chinese. The Defendant told PW1 not to O
swear and told PW1 if he did not believe the him, he could come up to the
P P
5 floor – there was a person sleeping there and he could ask him the
th
Q Defendant’s reason for going there. He was sworn at again and he again Q
told the police officers not to swear at him. PW1 pushed him with both
R R
hands at his chest and he hit the wall behind him and the back of his head
S hit the wall – he felt dizzy and fell to the ground. The two police officers S
came upon him and PW1 tried to pull him up by his collar – he confirmed
T T
in response to a question from the court that what he was wearing was what
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he was wearing at that time. The Defendant was wearing a black upper
C garment that could be described as a jacket. It had a red zipper at the front. C
The Defendant said the zipper of his garment was pulled up and when PW1
D D
pulled his garment by the collar, he felt choked and shook his head to
E release himself. He told PW1 to leave him i.e. release him. He stood up. He E
was searched by PW2 – he took out what he had – his mobile phone and
F F
immigration slip – he had no money on him. Shortly before he was
G searched he had seen PW1’s left hand and saw the middle finger of his left G
hand was bleeding a little bit. He told PW1 that his injuries were sustained
H H
because of his own foolishness. If PW1 had not pushed him nothing would
I have happened. He told PW1 he could go up to the 5th floor and ask his I
reason for coming to the building – he said this to PW1 in punti. He was
J J
handcuffed and PW2 declared arrest on him for the offence of injuring
K police officers. Soon after, some other police officers arrived. He was K
then taken to the Cheung Sha Wan Police Station and it was only there that
L L
the crowbar, Exhibit P2, was shown to the Duty Officer by PW1. The
M Defendant told the Duty Officer that nothing had been found on him and he M
was being framed. He said he did not see where PW1 got the crowbar from.
N N
He told the Duty Officer that the crowbar could be checked for his
O fingerprints and DNA and the Duty Officer replied ‘we will check, we will O
check’.
P P
Q Q
23. He was searched again at the police station by 3 or 4 police
R R
officers, not PWs 1 and 2, but nothing was found. Then ‘he’ came into the
S room where the Defendant was being searched with a plastic bag and said S
to the police officers searching the Defendant in Chinese that the plastic
T T
bag had been found from the Defendant’s pocket pointing to the right front
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jeans pocket. The Defendant said ‘You put a rod on me. Now I don’t know
C where you took the drugs from. Now you can do whatever you want. What C
can I do’. He later refused to sign on the tamperproof evidence bag and
D D
told the police officer “I will talk to you in Court’. He did not know he had
E been charged with burglary until after he appeared in court and he was E
served with the bundle.
F F
G G
24. The Defendant was cross-examined about how long he had
H H
known Ah Wah. The Defendant said he had known him for 3 to 4 years. He
I
had not come to know Ah Wah from work but would meet him sometimes I
in Sham Shui Po. He regarded Ah Wah as a casual friend. Prior to 31
J J
March 2016, he had last seen Ah Wah on 12 March 2016 when Ah Wah
K had taken him to his room on 5th floor. He did not know if Ah Wah had any K
job. He said Ah Wah had told him he was staying on 5th floor illegally, as
L L
a squatter, but the sitting room of Ah Wah’s room that Ah Wah had taken
M him to was nicely decorated. He knew Ah Wah was on welfare, He lent M
him $2,000 on 12 March, 2016. He did not regard $2,000 as a substantial
N N
amount. But on 31 March, 2016 he thought to get back the loan of $2,000
O from Ah Wah because he was in great need of money. He was asked what O
effort he had made to see if Ah Wah would be there in the middle of the
P P
day on 31 March 2016, and the Defendant replied that he was just passing
Q by and he went up and he usually passed that place once or twice a day. He Q
agreed when it was put to him that he had made no efforts to check if Ah
R R
Wah was at home before he went there. He said Ah Wah had given him his
S telephone number when he had lent him the money, and his telephone S
number had been stored on his mobile telephone, but it had been deleted
T T
from his mobile telephone as the battery had been taken out from his
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mobile telephone. He was asked if he knew anyone he could contact to get
C Ah Wah’s telephone number. He said initially he did not, and then that Ah C
Wah’s friends were also his friends, and before going he had asked one or
D D
two persons and they said they did not have the telephone number of Ah
E Wah. He was asked if he was in such need of money why he had not E
immediately gone to look for Ah Wah as soon as he was able on 30 March,
F F
2016, but he said he had actually forgotten that he had loan $2,000 to Ah
G Wah. He only remembered on 31 March, 2016. He did not know Ah G
Wah’s full name. He had intended to wait for Ah Wah for half an hour. But
H H
he did not – the whole incident from the time he entered the building till he
I met the police officers on the staircase landing was less than 10 minutes. I
J J
K Discussion K
L L
25. In the course of his testimony, the Defendant on a number of
M M
occasions himself referred to having been detained at the Laichikok
N N
Reception Centre from 14 to 30 March 2016 before being granted bail. I
O
had asked to be addressed in regard to this by Mr. Laskey and Mr. Polson. O
In his closing argument, Mr. Laskey submitted that this testimony was not
P P
prejudicial to the Defendant – it was raised by him and related only to his
Q being detained and he was subsequently granted bail according to his Q
testimony. Mr. Polson also agreed that this could be disregarded by the
R R
Court. In reaching my verdict, I disregarded that part of his testimony
S where he referred to having been at Lai Chi Kok Detention Centre. S
T T
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26. The only issue is the credibility of witnesses. If I find the
D
Prosecution witnesses are credible and truthful, then their evidence would D
prove that the Defendant was the burglar in Room B2 that the police
E E
officers PWs 1 and 2 came upon as they were patrolling the building, that
F he rushed out of the room when asked by PW1 what he was doing, that he F
resisted the arrest by PWs 1 and 2, that the crowbar Exhibit P2 was found
G G
from him at the staircase landing, and the dangerous drugs Exhibit P3 was
H found from him at the Cheung Sha Wan Police Station when he was H
searched there.
I I
J J
27. Mr. Polson accepted that as Exhibit P2 the crowbar had been
K K
handled by persons not wearing gloves, it was unlikely that any DNA or
L
fingerprints could be lifted. However, the hairdryer found on the bed as L
depicted in photo 12 of Exhibit P1 should have been. It had been moved
M M
onto the bed so it must have been touched. The same could be said for the
N cigarette packet on the bed next to the hairdryer. Whether the hairdryer was N
examined for fingerprints or DNA was not put to any of the Prosecution
O O
witnesses. I found nothing in that submission in respect of the hairdryer
P not having been examined for fingerprints or DNA. P
Q Q
R
28. Mr. Polson also submitted that the photo of the door as R
depicted in photo 6 and the condition of the screws as shown on the photo
S S
meant the door could not be secured in that condition. Counsel was
T
referring to the screws – he had asked PW1 about this – PW1 said that was T
what he had seen when he arrived at the premises. PW3 testified that he
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had secured the premises with the padlock before he left. There was no
C evidence as to how the screws got into that position or whether that meant C
the door could not be secured. I saw nothing in this submission.
D D
E E
29. I accepted the evidence of PW3 that he had securely locked
F F
his room B2 before he left the premises and when he returned, he found the
G
padlock had been prized and door prized open and there were signs of G
ransacking in the room and things having been moved around in the room.
H H
I I
30. It was submitted by Mr. Polson that the Prosecution should
J have called the Duty Officer to rebut defence evidence that he had J
protested to the Duty Officer in respect of the dangerous drugs and the
K K
crowbar. Again, I saw no merit in this argument. PW1 was cross-examined
L in respect of what happened at the Cheung Sha Wan Police Station when L
the Defendant was brought before the Duty Officer. It was suggested to
M M
PW1 that at the police station, either he or PW2 had produced the crowbar
N N
to the Duty Officer and told the Duty Officer that it was found from the
O
Defendant – PW1 had disagreed. It was also put to him that nothing was O
found from the Defendant when he was further searched. PW1 had
P P
disagreed. It was put to him that the Defendant had told the Duty Officer
Q that the police could go to the 5th floor to confirm if he had spoken to the Q
Chinese male there. PW1 had disagreed that this was said to the Duty
R R
Officer by the Defendant.
S S
T 31. PW 1 gave evidence of how he came upon the Defendant T
U
inside Room B2, that he was squatting near the bed in the room and U
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ransacking the bed. He revealed his police identity and asked what the
C Defendant was doing – the Defendant rushed from the room, pushing him C
at his chest and pushing PW2. He chased after the Defendant, he never lost
D D
sight of him, and after a brief struggle he and PW2 were able to subdue the
E Defendant on the staircase landing between the 1st and 2nd floors. When he E
was searched at the staircase landing, the crowbar Exhibit P2 was found.
F F
During a subsequent search at the Cheung Sha Wan Police Station, the
G dangerous drugs Exhibit P3 was found. G
H H
I
32. PW2’s evidence supported that of PW1. There were some I
minor discrepancies but none that cast doubt on their voracity as witnesses.
J J
K K
33. I found PWs 1, 2 and 3 were not prone to exaggeration and
L doing their best to tell the Court what had happened at the material time L
and place. I accepted their evidence in its entirety.
M M
N N
34. I have no hesitation in rejecting the Defendant’s evidence that
O O
th
he went to the building to the 5 floor to look for his friend Ah Wah to
P recover a loan of $2,000 that he had made to him. I do not find this P
evidence credible. I considered the submissions made on behalf of the
Q Q
Defendant and had no hesitation in rejecting the Defendant’s evidence. I
R find it inherently improbable that he would lend $2,000 to ‘a friend’ that he R
did not know the full name of, who he knew was unemployed and on
S S
welfare, and living as a squatter in the premises he says he was taken to by
T his friend. He was evasive when giving evidence. Initially he said he had T
U
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floor – he usually passed the building once or twice a day. Then he said he
C had asked some mutual friends for Ah Wah’s phone number, which he said C
had been deleted from his mobile phone, but they did not have it. He said
D D
he had asked the Chinese male he saw sleeping in the corridor for the
E number but the male did not have it. He said he went to the balcony to see E
if he could see Ah Wah from the balcony and if he did he would ask Ah
F F
Wah to come up – this was a balcony on the 5th floor. He said he thought
G something had fallen from the balcony when he saw PW1 looking up and G
he asked ‘moh yeh mah’ but received no reply. He did not actually see
H H
what had fallen – when he saw PW1 looking up he thought something had
I fallen. He had intended to wait for Ah Wah for at least half an hour, but I
changed his mind and left within 10 minutes, and he came upon the police
J J
officers on the staircase landing and he asked them again ‘moh yeh mah’.
K He did not see what had fallen but thought it was a lid or cork only because K
he saw a police officer looking up. I did not believe the Defendant. Even
L L
though I do not believe the Defendant, that does not determine the matter
M in favour of the Prosecution. The Defendant has to prove nothing. M
N N
O 35. I found the prosecution witnesses to be honest and credible O
witnesses, who each gave their evidence in a straightforward, cogent and
P P
direct manner. That I comment thus is not to misconstrue the burden of
Q proof remaining throughout upon the Prosecution to prove guilt beyond all Q
reasonable doubt but takes account of practical matters pertaining to the
R R
credibility of witnesses and the weight to be attached to evidence.
S S
T T
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36. I am satisfied that the Prosecution has proved all the charges
C against the Defendant beyond all reasonable doubt, and accordingly he is C
convicted on all the charges on the indictment.
D D
E E
Bina Chainrai
F F
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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