DCCC722/2023 HKSAR v. SALEH AHMED FAROUK HASSANIN MEKKY - LawHero
DCCC722/2023
HKSAR v. SALEH AHMED FAROUK HASSANIN MEKKY
區域法院（刑事）Deputy District Judge Jason Wan22/4/2025[2025] HKDC 713
DCCC722/2023
A A
B B
DCCC 722/2023
C [2025] HKDC 713 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 722 OF 2023
F F
G ---------------------------- G
HKSAR
H H
v
I SALEH AHMED FAROUK HASSANIN MEKKY I
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J J
K Before: Deputy District Judge Jason Wan in Court K
Date: 23 April 2025
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Present: Mr Kamlesh Arjan Sadhwani, Counsel on fiat, for HKSAR
M Mr Edward L McGuinniety, instructed by Chaudhry M
Solicitors, for the defendant
N N
Offence: [1] – [4] Criminal damage (刑事損壞)
O O
[5] Attempted burglary (企圖入屋犯法罪)
P [6] Going equipped for stealing (外出時備有偷竊用的物品) P
[7] Resisting a police officer in the due execution of his duty
Q Q
(抗拒在正當執行職務的警務人員)
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REASONS FOR VERDICT
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1. The defendant is charged with the following charges:
C C
(i) Charges 1 to 4: Criminal Damage, contrary to sections
D D
60(1) and 63(2) of the Crimes Ordinance, Cap 200,
E Laws of Hong Kong; E
F F
(ii) Charge 5: Attempted Burglary, contrary to section
G 11(1)(a) and 2(c) and (4) of the Theft Ordinance, Cap G
210 and section 159G of the Crimes Ordinance, Cap
H H
200;
I I
(iii) Charge 6: Going Equipped for Stealing, contrary to
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section 27(1) of the Theft Ordinance, Cap 210; and
K K
(iv) Charge 7: Resisting a Police Officer in the Due
L L
Execution of His Duty, contrary to section 36(b) of the
M Offences against the Person Ordinance, Cap 212. M
N N
2. The defendant pleaded not guilty to all the charges.
O O
PROSECUTION CASE
P P
Q 3. At the trial, the prosecution called nine prosecution witnesses. Q
PW1 to PW4 are the informants of the four criminal damage incidents
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respectively that are the subject matters of Charges 1 to 4. PW5 is an
S employee of Civil Engineering and Development Department (“CEDD”) S
working at the government facility that the defendant allegedly trespassed
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into and therefore his evidence concerns only Charges 5 and 6. PW6 to
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PW8 are Police officers involved in the arrest of the defendant. PW6 is the
C exhibit officer while PW7 is the arresting officer. PW8 is the inspector-in- C
charge of the case and he was injured during the arrest of the defendant.
D D
Lastly, PW9 was the officer who seized some fragments of the damaged
E statues at Hung Shing Temple (Exhibit P39). He was also responsible to E
take over a towing tool/tow hook (Exhibit P38) from PW6 and handed it to
F F
the Government Laboratory.
G G
Charge 1
H H
I 4. The prosecution case can be summarized as follows. On 16 I
September 2022, PW1, who was a volunteer worker of Kwan Tai Temple
J J
which was located at Castle Peak Road, Castle Bay, Tuen Mun, New
K Territories, stayed overnight at the temple. At about 11:40 pm, while PW1 K
was resting inside the temple, he heard a loud glass-breaking sound. He
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immediately watched the CCTV monitor and saw a male was walking
M away from the temple. Later PW1 found that the two god statues standing M
at the two sides of the main door of the temple were damaged and the heads
N N
of the two statues were missing. PW1 made a report to the Police and later
O provided the relevant CCTV footage (Exhibit P1) to the Police. The O
footage captured a strong-built male alighted from a dark colour private
P P
vehicle and walked towards the main door of the temple. Shortly after
Q some glass-breaking sound could be heard. Then the same male re- Q
appeared and walked away from the temple. (Screen captured photos of
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P1 are produced as Exhibit P10). The total costs of repairing the statues is
S HK$800. S
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A A
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Charge 2
C C
4. PW2 was a village representative of Tung Lo Wan Village in
D D
Shatin, New Territories. There is a shrine next to the Village Office and
E inside there was an earth god statue. On 24 September 2022, PW2 found E
that the said statue was damaged and its head was broken (see Exhibit
F F
P18b). The matter was reported to the Police. Later PW2 watched the
G relevant CCTV footage (Exhibit P2) and saw at the material time a male G
alighted a dark colour private vehicle and walked towards the direction of
H H
the shrine (Screen captured photos of P2 is produced as Exhibit P11). The
I value of the statue is estimated at about HK$1,500. I
J J
Charge 3
K K
5. PW3 was the temple keeper of Tin Hau Temple located at No
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81 Ha Kwai Chung Tsuen, Kwai Chung, New Territories. On 21
M November 2022, PW3 found that two earth god statues and one incense M
burner which were placed on the altar outside the temple were damaged
N N
(see Exhibit 18c). He later watched the CCTV footage of the temple at the
O material time (Exhibit P3) and saw a dark colour private vehicle stopped O
outside the temple at about 23:56:35 on 20 November 2022. Then a strong-
P P
built male alighted the vehicle at about 23:57:00 and walked towards the
Q direction of the temple. At about 23:57:35 the same male returned to the Q
private vehicle and drove away. PW3 also watched the CCTV footage
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shooting from Kwai Chung Police Station which is located opposite to the
S temple (Exhibit P5) and confirmed that the said footage did capture the S
direction of the temple at the material time. Relevant screen captured
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photos are produced as Exhibit P12. In the enlarged photo 7, it can be seen
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a person was leaning his/her upper body onto the altar. The estimated value
C of the damaged statues was about HK$3,500. C
D D
Charge 4
E E
6. PW4 was a resident living in a flat on 3rd Floor of Tung On
F F
Building which is located on the same street of Hung Shing Temple, Ngoi
G Man Street, Shau Kei Wan. On 4 December 2022 at about 12:55 am, PW4 G
was in his flat and he heard some glass shattering sound coming from the
H H
direction of the temple. He immediately looked outside and saw a male
I walked out from the entrance of the temple. The male then got on a dark I
colour private vehicle which was parked outside of the temple and drove
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away. PW4 was later shown some footages captured by the CCTV system
K of a nearby shop (Exhibit P8) and he confirmed that what he described K
above was captured in P8 at 00:53:40 to 00:54:20. Some screen captured
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photos of P8 are produced as Exhibit P13. Police later investigated the
M matter and took some photos of the scene (Exhibit P18d). It can be seen M
from Photo 5 that the god statues inside the temple were damaged.
N N
O Charges 5 and 6 O
P P
7. Charges 5 and 6 concerned a place called Area 137 which is
Q a piece of government land located in Tseung Kwan O, New Territories Q
(“the Site”). According to PW5, the Site was divided into different areas
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that were used by different government departments. The Site was a
S restricted area with opening hours from 0800 hours to 2200 hours. Only S
staff and their vehicles with permit were allowed to enter the Site. Those
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who wish to enter the Site without permit must register with the security
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office. Gates were installed at all driveway within the Site and the whole
C area was fenced off. There were warning signs against trespassers along C
the driveway in the Site.
D D
E 8. CEDD operated a temporary construction waste sorting E
facility in the Site and there were some container offices installed nearby
F F
that were used by the staff (“the Offices”).
G G
9. On 26 March 2023 at around 3:10 am, the defendant drove his
H H
private vehicle which was a black BMW bearing the registration mark XF
I 7166 (“the said Vehicle”) and entered the Site. At about 4:45 am on the I
same date, Police officers found the said Vehicle stopped in front of a
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closed iron gate near the Offices. The door of the driver’s seat was opened
K and there was no one inside the said Vehicle. PW7 then saw the defendant K
was walking near the Offices and was looking inside the Offices through a
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window. At that time, the Offices were closed and there was no one inside.
M M
10. When the defendant saw the officers, he began to walk
N N
towards the said Vehicle. PW7 went forward to stop the defendant and
O asked for his identity. PW7 asked the defendant why he was there. The O
defendant gave different answers such as he was looking for friends, he
P P
was looking for a job and he lost his way etc.
Q Q
Charge 7
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S 11. During the enquiry, the defendant requested to return to the S
said Vehicle to get some personal belongings. When the defendant got on
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the said Vehicle, he closed the door and refused to come out, despite
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repeated request and warning from PW7. While he was inside the said
C Vehicle, the defendant shouted he would not get off the car and would not C
go to the Police station. In the end, the officers successfully pulled the
D D
defendant out of the said Vehicle against his will. Outside the said Vehicle,
E the defendant put up a fierce struggle and the officers had to use force to E
subdue the defendant and put him on handcuffs.
F F
G 12. Immediate after the arrest, PW8 found his right ring finger G
was bleeding. He was not sure exactly how he was injured but he was
H H
certain that he got the injury during the arrest of the defendant.
I I
13. PW7 later formally arrested the defendant for “Attempted
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Burglary”. Under caution, the defendant voluntarily said, “I only come to
K find construction site job.” K
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14. Shortly after the arrest, PW6 conducted a search on the said
M Vehicle and found the following items (collectively referred as “the M
Tools”):
N N
O (a) one towing tool/tow hook which was attached to the O
rear of the said Vehicle (Exhibit P38);
P P
Q (b) two iron pipes which were found inside the boot; Q
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(c) 16 pairs of gloves which were found in various places
S inside the said Vehicle; and S
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(d) two hammers, one screwdriver, one torch, two pairs of
C pliers and two saws which were all found in a rucksack C
placed on the rear passenger seats of the said Vehicle.
D D
E Admitted Facts E
F F
15. According to paragraphs 29 to 31 of the Admitted Facts
G (Exhibit P19), Dr Wong Yau-nga of the Government Laboratory had G
examined the relevant CCTV footages of Kwan Tai Temple (Exhibit P1),
H H
Village Office of Tung Lo Village (Exhibit P2), Tin Hau Temple (Exhibit
I P3), Kwai Chung Police Station (Exhibit P5) and a shop near Hung Shing I
Temple (Exhibit P8) to try to identify the letters and numerals on the
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licence plate of the suspected private vehicles appeared in the footages.
K K
16. In gist, Dr Wong concluded that the letters and numerals on
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the licence plates of the suspected private vehicles appeared in the
M abovementioned footages could only be one of the following combinations: M
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AF 7160, JF 7160, XF 7160,
O AF 7166, JF 7166, XF 7166. O
P P
17. It was admitted in paragraph 31 of the Admitted Facts that the
Q Police had conducted vehicle searches on the abovementioned licence Q
plates and the result was that the vehicles using the licence plates of “AF
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7160”, “JF 7160”, “XF 7160”, “AF 7166” and “JF 7166” did not bear any
S resemblance to the said Vehicle. S
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18. Dr Chung Wai-wah, Government Chemist of the Government
C Laboratory, had examined the fragments of the damaged statue at Hung C
Shing Temple (Exhibit P39) and the towing tool/tow hook (Exhibit P38)
D D
seized from the said Vehicle. According to his report (Exhibit P15), Dr
E Chung concluded that the tiny fragments recovered from P38 were found E
to agree in physical appearance, colour and elemental composition with the
F F
white ceramic fragments from P39.
G G
DEFENCE CASE
H H
I 19. After the prosecution closed its case, defence made a I
submission of no case in relation to Charges 1 to 6. After consideration,
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the court ruled that there is a case to answer on all Charges 1 to 7.
K Concerning the defence case, the defendant elected not to give evidence K
and did not call any witness.
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M ANALYSIS OF EVIDENCE M
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20. The court bears in mind the prosecution bears the burden of
O proof and the standard of proof is beyond all reasonable doubt. The O
defendant does not have to prove anything. The defendant elected not to
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give evidence and it is his right. No adverse inference will be drawn
Q because of his election. The defendant is a person of clear record and a Q
good character direction will be given accordingly.
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S 21. I have carefully considered the evidence of PW1 to PW5. S
Their evidence is straightforward, reasonable and consistent with the
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relevant CCTV footages. After careful consideration, I am convinced that
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they all have told the truth. I find them to be honest and reliable witnesses
C and I accept their evidence in entirety. C
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22. I have also carefully considered the evidence of PW5 to PW9.
E Their evidence is clear, detailed and straightforward. They were unshaken E
under thorough cross-examination. Their evidence is consistent with each
F F
other and there was nothing inherently improbable in their evidence. After
G careful consideration, I am certain that they have told the court the truth. I G
find them to be honest and reliable witnesses and I accept their evidence.
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I 23. The defendant elected not to give evidence and it is his right. I
I note that under caution the defendant denied that he had committed any
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offence and gave an explanation as to why he went to the Site. In his video-
K recorded interview (Exhibit P17) the defendant also denied any K
involvement of any criminal offence.
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M 24. I will deal with Charges 1 to 4 first. First of all, based on the M
evidence of PW1 to PW4 and the relevant CCTV footages, the only and
N N
irresistible inference to be drawn is that on each occasion it was the person
O from the dark colour private vehicle captured by the CCTV who caused the O
damage to the god statues of the temples.
P P
Q 25. Secondly, according to the Admitted Facts, the said Vehicle Q
is a black BMW and the photos of the said Vehicle (Exhibit P18g) shows
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that the said Vehicle is actually a black BMW sports car with silver grille.
S On the other hand, it was also admitted that the letters and numerals on the S
licence plates of the dark colour private vehicles captured by the CCTV
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could only be one of the six combinations as mentioned in paragraph 16.
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A A
B B
Vehicle searches showed that the vehicles using the other five
C combinations did not bear any resemblance to the said Vehicle. In other C
words, the other five vehicles were not black BMW sports cars with silver
D D
grille. As all the suspected private vehicles captured in those CCTV
E footages were dark colour private vehicles (in some footages it can even E
be seen clearly the suspected private vehicles were black BMW with silver
F F
grille of identical model with the said Vehicle), it could only mean the
G suspected private vehicles in each of the CCTV footage were in fact XF G
7166, ie the said Vehicle.
H H
I 26. I now proceed to deal with Charges 1 to 4 separately. I
Concerning Charge 1, the private vehicle captured by the CCTV (Exhibits
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P1 and P10) looked almost identical to the said Vehicle. They are both
K dark colour sports car and the grille looked identical both in shape and K
colour. Together with the findings of Dr Wong, I am certain the private
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vehicle appeared in the footage was the said Vehicle. The footage captured
M a strong built male in white top alighted the said Vehicle and walked M
towards the direction of the damaged statue. The male in the footage bears
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a strong physical resemblance to the defendant. I do not believe it is
O possible that there was a person other than the defendant who looked like O
the defendant and was able to use the said Vehicle to commit Charge 1.
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Therefore, the only and irresistible inference to be drawn from the evidence
Q is that it was the defendant who committed Charge 1. Q
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27. Concerning Charge 2, the private vehicle captured by the
S CCTV (Exhibits P2 and P11) looked identical to the said Vehicle in colour, S
brand and model. According to the findings of Dr Wong, the private
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vehicle could only be the said Vehicle. The male came out from the private
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vehicle also bears strong physical resemblance to the defendant. Again, I
C do not believe it is possible that someone looked like the defendant would C
be able to use the said Vehicle to commit the offence of Charge 2. I am
D D
certain the person captured in P2 is the defendant and it was the defendant
E who committed Charge 2. E
F F
28. I now turn to Charge 3. The analysis is similar to the above.
G Though the image of the relevant CCTV footage (Exhibits P3 and P12) is G
not as clear as other footages, it can still be seen clearly at 23:56:38 to
H H
23:56:42 that the dark colour private vehicle which stopped outside the
I temple looked very similar to the said Vehicle. Together with the findings I
of Dr Wong, I am certain that the private vehicle captured in the footage
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was the said Vehicle. Further, the male who came from the said Vehicle
K had the same built as the defendant. Again, I do not believe there was K
someone who had similar built of the defendant and was able to use the
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said Vehicle in the middle of the night to commit the criminal damage of
M Charge 3. The only and irresistible inference to be drawn is that it was the M
defendant who committed Charge 3.
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O 29. The evidence of Charge 4 is even stronger. In addition to the O
findings of Dr Wong, there is clear CCTV footage (Exhibits P8 and P13)
P P
that captured the suspected private vehicle (from 00:53:20 to 00:54:20)
Q which bears all the resemblance to the said Vehicle. Further, according to Q
Mr Chung Wai-wah, Forensic Scientist of the Government Laboratory (his
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expert report was produced as Exhibit P15), some tiny fragments recovered
S from the towing tool/tow hook (Exhibit P38) seized from the said Vehicle S
“was found to agree in physical appearance, colour and elemental
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composition with the white ceramic fragments” that came from the broken
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parts of the damaged god statues of Hung Shing Temple, ie the damaged
C properties of Charge 4. Unless there is credible evidence to show otherwise, C
the findings of Dr Chung is very forceful evidence to prove that Exhibit
D D
P38 was the tool that was used to cause the damage to the god statues of
E Hung Shing Temple. Putting the above evidence together, the only and E
irresistible inference to be drawn is that it was the defendant who used
F F
Exhibit P38 to commit Charge 4.
G G
30. Charges 5 and 6 can be dealt with together. In gist, the
H H
prosecution evidence is that the defendant was seen in the middle of the
I night wandering outside some offices in a restricted area of some I
government facilities looking inside the offices through the window. In his
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car, there were some tools that could be used to break in the offices. When
K being stopped by the Police officers, the defendant gave some K
extraordinary explanations as to why he was there.
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M 31. Defence raised a legal argument concerning Charge 5. It goes M
like this: the particulars of Charge 5 said the defendant entered a building
N N
“known as Area 137” as a trespasser. Defence argued, according to the
O evidence, Area 137 was not a building at all. Instead, it was a vast piece O
of land occupied by different government facilities. As one of the elements
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of burglary is “enters any building or part of a building”, the particulars of
Q the charge failed to identify a building and therefore the charge is defective Q
or the prosecution failed to prove an essential element of the charge.
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32. After careful consideration, I do not agree that Charge 5 is
C defective or the element of “building” is not sufficiently made out. The C
prosecution case is all along very clear. The allegation is that the defendant
D D
attempted to enter the Offices as a trespasser. Therefore, the words “part
E of a building” in the particulars of the charge could only mean the Offices E
and not Area 137, or the charge would not have been an attempted charge.
F F
Of course, it would be clearer if the words “container offices” are added to
G the particulars of the charge. However, it seems that the Offices were G
temporary structures and they may not have any formal description or door
H H
number. That might be the reason why the prosecution opted to
I particularize Charge 5 as it is. In any event, I believe the prosecution case I
on Charge 5 had been clear all along and I do not find the defendant would
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be in any way prejudiced by the lack of particulars of the charge.
K K
33. The crucial question for Charge 5 is whether the prosecution
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has proved beyond reasonable doubts that at the material times the
M defendant intended to enter the Offices “to do unlawful damage to the M
building or anything therein” as framed in the charge. The prosecution
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evidence is that the defendant was seen outside the Offices looking inside.
O It was in the middle of the night and the Offices were closed. The reasons O
given by the defendant to explain his presence were simply not worthy of
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belief. However, the fact that the defendant told lies does not mean he is
Q guilty. The court has to look into all the evidence to see whether the only Q
and irresistible inference is a guilty one.
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S 34. Though there were some tools found in the defendant’s S
vehicle which was parked in the vicinity, the fact remains when the
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defendant was found outside the Offices he was empty-handed. Apart from
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being seen that he was looking inside the offices through the window, there
C was no evidence that the defendant tried to open any door or window. C
There is no evidence that he had touched any part of the Offices. Other
D D
than the fact that he was present at the scene, there is simply no concrete
E evidence to prove that the defendant intended to enter the Offices. E
F F
35. It might be true that the most obvious inferences to be drawn
G are that the defendant intended to enter the Offices to do unlawful damage G
or to steal. However, without more evidence I cannot say for sure that
H H
those are the only and irresistible inferences. The other inference is that
I the defendant did that out of curiosity. The world is full of people who do I
things most people deem unreasonable or unexplainable. Entering a
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restricted area in the middle of the night and looked into an office may look
K unreasonable to most people. However, that does not automatically mean K
anyone who does that has the intention to break in to do damage or to steal.
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It all depends on the evidence. The defendant told the Police something
M untrue does not mean he is guilty. He might have said unreasonable things M
out of panic or fear.
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O 36. Putting all the evidence together, there is no doubt that the O
defendant acted most suspiciously but it was not enough to prove to
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certainty that the defendant was attempting to enter the Offices to do
Q unlawful damage or to steal. I find the prosecution not able to prove Q
Charge 5 beyond all reasonable doubts.
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S 37. The analysis of Charge 6 is similar. The evidence is that the S
defendant went to the Offices in the middle of the night with a car full of
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tools that could be used to burgle the Offices. To describe the defendant’s
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act as suspicious is an understatement. However, following my analysis
C on Charge 5, suspicious as he might look, the evidence cannot prove to C
certainty that the defendant had the intention to enter the Offices to damage
D D
or to steal. It follows that to use the tools to steal is not the only and
E irresistible inference to be drawn from the evidence. The tools are all E
normal tools that could be used by any construction site worker. At the
F F
material times the defendant was not carrying or holding any of those tools.
G Therefore, there are other inferences that can be drawn from the evidence G
and the prosecution was not able to prove Charge 6 beyond all reasonable
H H
doubts.
I I
38. Lastly, I turn to Charge 7. Base on the evidence I accepted,
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ie the evidence of PW6 to PW8, after PW7 declared arrest on the defendant,
K the defendant returned to the said Vehicle and refused to come out. The K
defendant clearly knew he was under arrest and he did a series of act to
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resist a lawful arrest. In the end, the officers had to pull the defendant out
M of the said vehicle with force and against his will. During which the M
defendant put up fierce struggle and as a result PW8 suffered minor injury.
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O 39. The defendant did not give evidence and even if he does, I can O
see no lawful explanation or defence to his act. What the defendant did
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during his arrest obviously caused great difficulty to the officers in their
Q execution of duty. Base on the above evidence, I find the prosecution has Q
proved beyond all reasonable doubts of all the elements of Charge 7.
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CONCLUSION
C C
40. Base on the above analysis, my verdicts on Charges 1 to 7 are
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as follows:
E E
(i) Guilty on Charges 1, 2, 3, 4 and 7; and
F F
G (ii) Not Guilty on Charges 5 and 6. G
H H
I I
( Jason Wan )
J Deputy District Judge J
K K
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M M
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O O
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Q Q
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S S
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A A
B B
DCCC 722/2023
C [2025] HKDC 713 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 722 OF 2023
F F
G ---------------------------- G
HKSAR
H H
v
I SALEH AHMED FAROUK HASSANIN MEKKY I
----------------------------
J J
K Before: Deputy District Judge Jason Wan in Court K
Date: 23 April 2025
L L
Present: Mr Kamlesh Arjan Sadhwani, Counsel on fiat, for HKSAR
M Mr Edward L McGuinniety, instructed by Chaudhry M
Solicitors, for the defendant
N N
Offence: [1] – [4] Criminal damage (刑事損壞)
O O
[5] Attempted burglary (企圖入屋犯法罪)
P [6] Going equipped for stealing (外出時備有偷竊用的物品) P
[7] Resisting a police officer in the due execution of his duty
Q Q
(抗拒在正當執行職務的警務人員)
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S S
REASONS FOR VERDICT
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1. The defendant is charged with the following charges:
C C
(i) Charges 1 to 4: Criminal Damage, contrary to sections
D D
60(1) and 63(2) of the Crimes Ordinance, Cap 200,
E Laws of Hong Kong; E
F F
(ii) Charge 5: Attempted Burglary, contrary to section
G 11(1)(a) and 2(c) and (4) of the Theft Ordinance, Cap G
210 and section 159G of the Crimes Ordinance, Cap
H H
200;
I I
(iii) Charge 6: Going Equipped for Stealing, contrary to
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section 27(1) of the Theft Ordinance, Cap 210; and
K K
(iv) Charge 7: Resisting a Police Officer in the Due
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Execution of His Duty, contrary to section 36(b) of the
M Offences against the Person Ordinance, Cap 212. M
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2. The defendant pleaded not guilty to all the charges.
O O
PROSECUTION CASE
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Q 3. At the trial, the prosecution called nine prosecution witnesses. Q
PW1 to PW4 are the informants of the four criminal damage incidents
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respectively that are the subject matters of Charges 1 to 4. PW5 is an
S employee of Civil Engineering and Development Department (“CEDD”) S
working at the government facility that the defendant allegedly trespassed
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into and therefore his evidence concerns only Charges 5 and 6. PW6 to
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PW8 are Police officers involved in the arrest of the defendant. PW6 is the
C exhibit officer while PW7 is the arresting officer. PW8 is the inspector-in- C
charge of the case and he was injured during the arrest of the defendant.
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Lastly, PW9 was the officer who seized some fragments of the damaged
E statues at Hung Shing Temple (Exhibit P39). He was also responsible to E
take over a towing tool/tow hook (Exhibit P38) from PW6 and handed it to
F F
the Government Laboratory.
G G
Charge 1
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I 4. The prosecution case can be summarized as follows. On 16 I
September 2022, PW1, who was a volunteer worker of Kwan Tai Temple
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which was located at Castle Peak Road, Castle Bay, Tuen Mun, New
K Territories, stayed overnight at the temple. At about 11:40 pm, while PW1 K
was resting inside the temple, he heard a loud glass-breaking sound. He
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immediately watched the CCTV monitor and saw a male was walking
M away from the temple. Later PW1 found that the two god statues standing M
at the two sides of the main door of the temple were damaged and the heads
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of the two statues were missing. PW1 made a report to the Police and later
O provided the relevant CCTV footage (Exhibit P1) to the Police. The O
footage captured a strong-built male alighted from a dark colour private
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vehicle and walked towards the main door of the temple. Shortly after
Q some glass-breaking sound could be heard. Then the same male re- Q
appeared and walked away from the temple. (Screen captured photos of
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P1 are produced as Exhibit P10). The total costs of repairing the statues is
S HK$800. S
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Charge 2
C C
4. PW2 was a village representative of Tung Lo Wan Village in
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Shatin, New Territories. There is a shrine next to the Village Office and
E inside there was an earth god statue. On 24 September 2022, PW2 found E
that the said statue was damaged and its head was broken (see Exhibit
F F
P18b). The matter was reported to the Police. Later PW2 watched the
G relevant CCTV footage (Exhibit P2) and saw at the material time a male G
alighted a dark colour private vehicle and walked towards the direction of
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the shrine (Screen captured photos of P2 is produced as Exhibit P11). The
I value of the statue is estimated at about HK$1,500. I
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Charge 3
K K
5. PW3 was the temple keeper of Tin Hau Temple located at No
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81 Ha Kwai Chung Tsuen, Kwai Chung, New Territories. On 21
M November 2022, PW3 found that two earth god statues and one incense M
burner which were placed on the altar outside the temple were damaged
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(see Exhibit 18c). He later watched the CCTV footage of the temple at the
O material time (Exhibit P3) and saw a dark colour private vehicle stopped O
outside the temple at about 23:56:35 on 20 November 2022. Then a strong-
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built male alighted the vehicle at about 23:57:00 and walked towards the
Q direction of the temple. At about 23:57:35 the same male returned to the Q
private vehicle and drove away. PW3 also watched the CCTV footage
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shooting from Kwai Chung Police Station which is located opposite to the
S temple (Exhibit P5) and confirmed that the said footage did capture the S
direction of the temple at the material time. Relevant screen captured
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photos are produced as Exhibit P12. In the enlarged photo 7, it can be seen
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a person was leaning his/her upper body onto the altar. The estimated value
C of the damaged statues was about HK$3,500. C
D D
Charge 4
E E
6. PW4 was a resident living in a flat on 3rd Floor of Tung On
F F
Building which is located on the same street of Hung Shing Temple, Ngoi
G Man Street, Shau Kei Wan. On 4 December 2022 at about 12:55 am, PW4 G
was in his flat and he heard some glass shattering sound coming from the
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direction of the temple. He immediately looked outside and saw a male
I walked out from the entrance of the temple. The male then got on a dark I
colour private vehicle which was parked outside of the temple and drove
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away. PW4 was later shown some footages captured by the CCTV system
K of a nearby shop (Exhibit P8) and he confirmed that what he described K
above was captured in P8 at 00:53:40 to 00:54:20. Some screen captured
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photos of P8 are produced as Exhibit P13. Police later investigated the
M matter and took some photos of the scene (Exhibit P18d). It can be seen M
from Photo 5 that the god statues inside the temple were damaged.
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O Charges 5 and 6 O
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7. Charges 5 and 6 concerned a place called Area 137 which is
Q a piece of government land located in Tseung Kwan O, New Territories Q
(“the Site”). According to PW5, the Site was divided into different areas
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that were used by different government departments. The Site was a
S restricted area with opening hours from 0800 hours to 2200 hours. Only S
staff and their vehicles with permit were allowed to enter the Site. Those
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who wish to enter the Site without permit must register with the security
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office. Gates were installed at all driveway within the Site and the whole
C area was fenced off. There were warning signs against trespassers along C
the driveway in the Site.
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E 8. CEDD operated a temporary construction waste sorting E
facility in the Site and there were some container offices installed nearby
F F
that were used by the staff (“the Offices”).
G G
9. On 26 March 2023 at around 3:10 am, the defendant drove his
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private vehicle which was a black BMW bearing the registration mark XF
I 7166 (“the said Vehicle”) and entered the Site. At about 4:45 am on the I
same date, Police officers found the said Vehicle stopped in front of a
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closed iron gate near the Offices. The door of the driver’s seat was opened
K and there was no one inside the said Vehicle. PW7 then saw the defendant K
was walking near the Offices and was looking inside the Offices through a
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window. At that time, the Offices were closed and there was no one inside.
M M
10. When the defendant saw the officers, he began to walk
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towards the said Vehicle. PW7 went forward to stop the defendant and
O asked for his identity. PW7 asked the defendant why he was there. The O
defendant gave different answers such as he was looking for friends, he
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was looking for a job and he lost his way etc.
Q Q
Charge 7
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S 11. During the enquiry, the defendant requested to return to the S
said Vehicle to get some personal belongings. When the defendant got on
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the said Vehicle, he closed the door and refused to come out, despite
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repeated request and warning from PW7. While he was inside the said
C Vehicle, the defendant shouted he would not get off the car and would not C
go to the Police station. In the end, the officers successfully pulled the
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defendant out of the said Vehicle against his will. Outside the said Vehicle,
E the defendant put up a fierce struggle and the officers had to use force to E
subdue the defendant and put him on handcuffs.
F F
G 12. Immediate after the arrest, PW8 found his right ring finger G
was bleeding. He was not sure exactly how he was injured but he was
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certain that he got the injury during the arrest of the defendant.
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13. PW7 later formally arrested the defendant for “Attempted
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Burglary”. Under caution, the defendant voluntarily said, “I only come to
K find construction site job.” K
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14. Shortly after the arrest, PW6 conducted a search on the said
M Vehicle and found the following items (collectively referred as “the M
Tools”):
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O (a) one towing tool/tow hook which was attached to the O
rear of the said Vehicle (Exhibit P38);
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Q (b) two iron pipes which were found inside the boot; Q
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(c) 16 pairs of gloves which were found in various places
S inside the said Vehicle; and S
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(d) two hammers, one screwdriver, one torch, two pairs of
C pliers and two saws which were all found in a rucksack C
placed on the rear passenger seats of the said Vehicle.
D D
E Admitted Facts E
F F
15. According to paragraphs 29 to 31 of the Admitted Facts
G (Exhibit P19), Dr Wong Yau-nga of the Government Laboratory had G
examined the relevant CCTV footages of Kwan Tai Temple (Exhibit P1),
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Village Office of Tung Lo Village (Exhibit P2), Tin Hau Temple (Exhibit
I P3), Kwai Chung Police Station (Exhibit P5) and a shop near Hung Shing I
Temple (Exhibit P8) to try to identify the letters and numerals on the
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licence plate of the suspected private vehicles appeared in the footages.
K K
16. In gist, Dr Wong concluded that the letters and numerals on
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the licence plates of the suspected private vehicles appeared in the
M abovementioned footages could only be one of the following combinations: M
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AF 7160, JF 7160, XF 7160,
O AF 7166, JF 7166, XF 7166. O
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17. It was admitted in paragraph 31 of the Admitted Facts that the
Q Police had conducted vehicle searches on the abovementioned licence Q
plates and the result was that the vehicles using the licence plates of “AF
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7160”, “JF 7160”, “XF 7160”, “AF 7166” and “JF 7166” did not bear any
S resemblance to the said Vehicle. S
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18. Dr Chung Wai-wah, Government Chemist of the Government
C Laboratory, had examined the fragments of the damaged statue at Hung C
Shing Temple (Exhibit P39) and the towing tool/tow hook (Exhibit P38)
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seized from the said Vehicle. According to his report (Exhibit P15), Dr
E Chung concluded that the tiny fragments recovered from P38 were found E
to agree in physical appearance, colour and elemental composition with the
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white ceramic fragments from P39.
G G
DEFENCE CASE
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I 19. After the prosecution closed its case, defence made a I
submission of no case in relation to Charges 1 to 6. After consideration,
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the court ruled that there is a case to answer on all Charges 1 to 7.
K Concerning the defence case, the defendant elected not to give evidence K
and did not call any witness.
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M ANALYSIS OF EVIDENCE M
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20. The court bears in mind the prosecution bears the burden of
O proof and the standard of proof is beyond all reasonable doubt. The O
defendant does not have to prove anything. The defendant elected not to
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give evidence and it is his right. No adverse inference will be drawn
Q because of his election. The defendant is a person of clear record and a Q
good character direction will be given accordingly.
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S 21. I have carefully considered the evidence of PW1 to PW5. S
Their evidence is straightforward, reasonable and consistent with the
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relevant CCTV footages. After careful consideration, I am convinced that
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they all have told the truth. I find them to be honest and reliable witnesses
C and I accept their evidence in entirety. C
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22. I have also carefully considered the evidence of PW5 to PW9.
E Their evidence is clear, detailed and straightforward. They were unshaken E
under thorough cross-examination. Their evidence is consistent with each
F F
other and there was nothing inherently improbable in their evidence. After
G careful consideration, I am certain that they have told the court the truth. I G
find them to be honest and reliable witnesses and I accept their evidence.
H H
I 23. The defendant elected not to give evidence and it is his right. I
I note that under caution the defendant denied that he had committed any
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offence and gave an explanation as to why he went to the Site. In his video-
K recorded interview (Exhibit P17) the defendant also denied any K
involvement of any criminal offence.
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M 24. I will deal with Charges 1 to 4 first. First of all, based on the M
evidence of PW1 to PW4 and the relevant CCTV footages, the only and
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irresistible inference to be drawn is that on each occasion it was the person
O from the dark colour private vehicle captured by the CCTV who caused the O
damage to the god statues of the temples.
P P
Q 25. Secondly, according to the Admitted Facts, the said Vehicle Q
is a black BMW and the photos of the said Vehicle (Exhibit P18g) shows
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that the said Vehicle is actually a black BMW sports car with silver grille.
S On the other hand, it was also admitted that the letters and numerals on the S
licence plates of the dark colour private vehicles captured by the CCTV
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could only be one of the six combinations as mentioned in paragraph 16.
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Vehicle searches showed that the vehicles using the other five
C combinations did not bear any resemblance to the said Vehicle. In other C
words, the other five vehicles were not black BMW sports cars with silver
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grille. As all the suspected private vehicles captured in those CCTV
E footages were dark colour private vehicles (in some footages it can even E
be seen clearly the suspected private vehicles were black BMW with silver
F F
grille of identical model with the said Vehicle), it could only mean the
G suspected private vehicles in each of the CCTV footage were in fact XF G
7166, ie the said Vehicle.
H H
I 26. I now proceed to deal with Charges 1 to 4 separately. I
Concerning Charge 1, the private vehicle captured by the CCTV (Exhibits
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P1 and P10) looked almost identical to the said Vehicle. They are both
K dark colour sports car and the grille looked identical both in shape and K
colour. Together with the findings of Dr Wong, I am certain the private
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vehicle appeared in the footage was the said Vehicle. The footage captured
M a strong built male in white top alighted the said Vehicle and walked M
towards the direction of the damaged statue. The male in the footage bears
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a strong physical resemblance to the defendant. I do not believe it is
O possible that there was a person other than the defendant who looked like O
the defendant and was able to use the said Vehicle to commit Charge 1.
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Therefore, the only and irresistible inference to be drawn from the evidence
Q is that it was the defendant who committed Charge 1. Q
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27. Concerning Charge 2, the private vehicle captured by the
S CCTV (Exhibits P2 and P11) looked identical to the said Vehicle in colour, S
brand and model. According to the findings of Dr Wong, the private
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vehicle could only be the said Vehicle. The male came out from the private
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vehicle also bears strong physical resemblance to the defendant. Again, I
C do not believe it is possible that someone looked like the defendant would C
be able to use the said Vehicle to commit the offence of Charge 2. I am
D D
certain the person captured in P2 is the defendant and it was the defendant
E who committed Charge 2. E
F F
28. I now turn to Charge 3. The analysis is similar to the above.
G Though the image of the relevant CCTV footage (Exhibits P3 and P12) is G
not as clear as other footages, it can still be seen clearly at 23:56:38 to
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23:56:42 that the dark colour private vehicle which stopped outside the
I temple looked very similar to the said Vehicle. Together with the findings I
of Dr Wong, I am certain that the private vehicle captured in the footage
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was the said Vehicle. Further, the male who came from the said Vehicle
K had the same built as the defendant. Again, I do not believe there was K
someone who had similar built of the defendant and was able to use the
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said Vehicle in the middle of the night to commit the criminal damage of
M Charge 3. The only and irresistible inference to be drawn is that it was the M
defendant who committed Charge 3.
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O 29. The evidence of Charge 4 is even stronger. In addition to the O
findings of Dr Wong, there is clear CCTV footage (Exhibits P8 and P13)
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that captured the suspected private vehicle (from 00:53:20 to 00:54:20)
Q which bears all the resemblance to the said Vehicle. Further, according to Q
Mr Chung Wai-wah, Forensic Scientist of the Government Laboratory (his
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expert report was produced as Exhibit P15), some tiny fragments recovered
S from the towing tool/tow hook (Exhibit P38) seized from the said Vehicle S
“was found to agree in physical appearance, colour and elemental
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composition with the white ceramic fragments” that came from the broken
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parts of the damaged god statues of Hung Shing Temple, ie the damaged
C properties of Charge 4. Unless there is credible evidence to show otherwise, C
the findings of Dr Chung is very forceful evidence to prove that Exhibit
D D
P38 was the tool that was used to cause the damage to the god statues of
E Hung Shing Temple. Putting the above evidence together, the only and E
irresistible inference to be drawn is that it was the defendant who used
F F
Exhibit P38 to commit Charge 4.
G G
30. Charges 5 and 6 can be dealt with together. In gist, the
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prosecution evidence is that the defendant was seen in the middle of the
I night wandering outside some offices in a restricted area of some I
government facilities looking inside the offices through the window. In his
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car, there were some tools that could be used to break in the offices. When
K being stopped by the Police officers, the defendant gave some K
extraordinary explanations as to why he was there.
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M 31. Defence raised a legal argument concerning Charge 5. It goes M
like this: the particulars of Charge 5 said the defendant entered a building
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“known as Area 137” as a trespasser. Defence argued, according to the
O evidence, Area 137 was not a building at all. Instead, it was a vast piece O
of land occupied by different government facilities. As one of the elements
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of burglary is “enters any building or part of a building”, the particulars of
Q the charge failed to identify a building and therefore the charge is defective Q
or the prosecution failed to prove an essential element of the charge.
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32. After careful consideration, I do not agree that Charge 5 is
C defective or the element of “building” is not sufficiently made out. The C
prosecution case is all along very clear. The allegation is that the defendant
D D
attempted to enter the Offices as a trespasser. Therefore, the words “part
E of a building” in the particulars of the charge could only mean the Offices E
and not Area 137, or the charge would not have been an attempted charge.
F F
Of course, it would be clearer if the words “container offices” are added to
G the particulars of the charge. However, it seems that the Offices were G
temporary structures and they may not have any formal description or door
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number. That might be the reason why the prosecution opted to
I particularize Charge 5 as it is. In any event, I believe the prosecution case I
on Charge 5 had been clear all along and I do not find the defendant would
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be in any way prejudiced by the lack of particulars of the charge.
K K
33. The crucial question for Charge 5 is whether the prosecution
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has proved beyond reasonable doubts that at the material times the
M defendant intended to enter the Offices “to do unlawful damage to the M
building or anything therein” as framed in the charge. The prosecution
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evidence is that the defendant was seen outside the Offices looking inside.
O It was in the middle of the night and the Offices were closed. The reasons O
given by the defendant to explain his presence were simply not worthy of
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belief. However, the fact that the defendant told lies does not mean he is
Q guilty. The court has to look into all the evidence to see whether the only Q
and irresistible inference is a guilty one.
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S 34. Though there were some tools found in the defendant’s S
vehicle which was parked in the vicinity, the fact remains when the
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defendant was found outside the Offices he was empty-handed. Apart from
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being seen that he was looking inside the offices through the window, there
C was no evidence that the defendant tried to open any door or window. C
There is no evidence that he had touched any part of the Offices. Other
D D
than the fact that he was present at the scene, there is simply no concrete
E evidence to prove that the defendant intended to enter the Offices. E
F F
35. It might be true that the most obvious inferences to be drawn
G are that the defendant intended to enter the Offices to do unlawful damage G
or to steal. However, without more evidence I cannot say for sure that
H H
those are the only and irresistible inferences. The other inference is that
I the defendant did that out of curiosity. The world is full of people who do I
things most people deem unreasonable or unexplainable. Entering a
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restricted area in the middle of the night and looked into an office may look
K unreasonable to most people. However, that does not automatically mean K
anyone who does that has the intention to break in to do damage or to steal.
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It all depends on the evidence. The defendant told the Police something
M untrue does not mean he is guilty. He might have said unreasonable things M
out of panic or fear.
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O 36. Putting all the evidence together, there is no doubt that the O
defendant acted most suspiciously but it was not enough to prove to
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certainty that the defendant was attempting to enter the Offices to do
Q unlawful damage or to steal. I find the prosecution not able to prove Q
Charge 5 beyond all reasonable doubts.
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S 37. The analysis of Charge 6 is similar. The evidence is that the S
defendant went to the Offices in the middle of the night with a car full of
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tools that could be used to burgle the Offices. To describe the defendant’s
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act as suspicious is an understatement. However, following my analysis
C on Charge 5, suspicious as he might look, the evidence cannot prove to C
certainty that the defendant had the intention to enter the Offices to damage
D D
or to steal. It follows that to use the tools to steal is not the only and
E irresistible inference to be drawn from the evidence. The tools are all E
normal tools that could be used by any construction site worker. At the
F F
material times the defendant was not carrying or holding any of those tools.
G Therefore, there are other inferences that can be drawn from the evidence G
and the prosecution was not able to prove Charge 6 beyond all reasonable
H H
doubts.
I I
38. Lastly, I turn to Charge 7. Base on the evidence I accepted,
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ie the evidence of PW6 to PW8, after PW7 declared arrest on the defendant,
K the defendant returned to the said Vehicle and refused to come out. The K
defendant clearly knew he was under arrest and he did a series of act to
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resist a lawful arrest. In the end, the officers had to pull the defendant out
M of the said vehicle with force and against his will. During which the M
defendant put up fierce struggle and as a result PW8 suffered minor injury.
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O 39. The defendant did not give evidence and even if he does, I can O
see no lawful explanation or defence to his act. What the defendant did
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during his arrest obviously caused great difficulty to the officers in their
Q execution of duty. Base on the above evidence, I find the prosecution has Q
proved beyond all reasonable doubts of all the elements of Charge 7.
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CONCLUSION
C C
40. Base on the above analysis, my verdicts on Charges 1 to 7 are
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as follows:
E E
(i) Guilty on Charges 1, 2, 3, 4 and 7; and
F F
G (ii) Not Guilty on Charges 5 and 6. G
H H
I I
( Jason Wan )
J Deputy District Judge J
K K
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