Appeal against conviction and jail for house-trespass dismissed

SIBU: The High Court here on Wednesday (Sept. 23) dismissed an appeal by a 49-year-old man against his conviction and 30-month imprisonment for lurking house-trespass with intent to commit theft at an electrical substation here four years ago.

Judicial Commissioner Alvin Leong Yin Yuan, who heard the appeal in open court, affirmed the decision of the Sibu Magistrates’ Court and maintained the sentence imposed on Lau King Lee following his conviction after a full trial.

The High Court also held that the prosecution had established the necessary elements of the offence and that there was no evidential gap warranting appellate intervention.

The offence was committed on June 30, 2022 at about 12:00 noon at the substation of a construction site at Grace Garden along Jalan Ek Dee here.

At the heart of the appeal was Lau’s contention that the prosecution had failed to prove who was in possession of the substation and had not called a representative from Sarawak Energy (SESCO), despite the charge referring to copper metals belonging to SESCO.

The High Court rejected the argument, drawing a clear distinction between ownership and possession.

In his ruling, Leong said the reference to the Grace Garden construction site substation in the charge was a particular of the charge and concerned the immovable property where the alleged trespass occurred.

What mattered under Section 441 of the Penal Code was possession, rather than ownership.

Similarly, the reference to copper metals belonging to SESCO concerned the movable property targeted for theft, where possession was again the relevant consideration.

The judge noted that prosecution witness, Ng Soon Lee, had testified that he possessed the only key to the substation gate, and that this evidence had not been challenged during cross-examination.

“This was not challenged in cross-examination,” Leong said, finding that the evidence was sufficient to establish that the substation was in the possession of another person as required under Section 441 of the Penal Code.

He ruled that the prosecution was not required to establish what additional rights the contractor, developer or SESCO might have over the substation.

The same reasoning applied to the copper cables inside the substation, which had been identified by Ng during the trial.

The judge therefore found that evidence from Ng’s employer or SESCO was not necessary to establish the ingredients of the charge and that no adverse inference could be drawn from their absence.

“In view of the above, I find that there has been no gap in the evidence of the prosecution and no reason to disturb the learned Magistrate’s assessment of facts and ultimately his decision to convict the appellant,” he ruled.

The prosecution’s case, as set out in its written submission, was that on June 30, 2022, an electrician, Apram Ayok, discovered a man inside the substation after returning from lunch.

Apram testified that the man was inside the locked premises among dismantled electrical equipment.

When confronted, the man reportedly said he was “working” and claimed he came from Sungai Merah, but refused to provide his name before fleeing through the opposite side of the structure into bushes.

Ng, who arrived shortly afterwards, found a red Yamaha motorcycle parked outside the substation. Inside, electrical equipment had been dismantled and four electricity supply cables had been pulled from their positions.

Police later recovered a white gunny sack containing dismantled copper components and a black bag containing tools including an iron cutter, spanners, blades, a screwdriver and a key.

The prosecution represented by Deputy Public Prosecutor (DPP), Mark Kenneth Netto, said that the substation had been entered through a structural opening in the roof after the main entrance was found locked.

Lau was arrested later that day, while Apram identified him during a police identification parade the following morning.

The prosecution maintained that Apram had observed Lau at close range in broad daylight, without obstruction or a mask, and had directly confronted him before he fled.

Lau, however, maintained that he was at home with his nephew at the material time.

He also claimed that although the seized Yamaha motorcycle belonged to him, he had lent it to a man identified as ‘Ling Siew Chew’, whom he alleged was the actual perpetrator.

The prosecution submitted that the defence was unsupported because neither the alleged nephew nor Ling was called as a defence witness, while the allegations had not been put to the prosecution witnesses during cross-examination.

The High Court ultimately found no reason to interfere with the Magistrates’ Court’s factual findings or conviction.

On sentencing, Leong noted that the maximum punishment for the offence, where the intended offence was theft, was imprisonment for up to 14 years and a fine.

The judge also considered sentencing precedents cited in the proceedings, including cases involving imprisonment terms of four years and 45 months for offences involving significantly lower-value property.

He noted that Lau had been convicted following a full trial and concluded that the 30-month sentence was “on the lenient side”, although not so inadequate as to justify appellate intervention.

“I see no reason to disturb the sentence imposed,” he ruled.

Leong then dismissed the appeal and affirmed the decision of the Magistrates’ Court.

DPP Mark had urged the High Court to uphold the conviction, arguing that the evidence of the eyewitness, the dismantled copper cables, tools recovered at the scene, and Lau’s alleged flight when confronted formed a consistent evidential chain supporting the finding of lurking house-trespass with intent to commit theft.