HKSAR v. HO CHIN HUNG

CACC 81/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 81 OF 2005

(ON APPEAL FROM DCCC NO. 946 OF 2004)

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J U D G M E N T

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1. The applicant Ho Chin-hung was tried before Deputy Judge Mierczak in the District Court on a charge of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210.  The judge convicted him of the offence and sentenced him to imprisonment for two years and six months.  He now applies for leave to appeal against both conviction and sentence.

2. The particulars of offence stated that on 15 July 2004, the applicant entered as a trespasser part of a building known as Mai On Industrial Building, Nos 17-21, Kung Yip Street, Kwai Chung, New Territories (“the building”), with intent to steal therein.

3. The evidence as presented by the prosecution can be summarised as follows.  On 15 July 2004, at about 7:10pm, PW1, a watchman of the building, went to the rooftop where he saw the applicant holding a spanner.  The applicant carried a backpack.  PW1 asked the applicant which unit he was from on two occasions but the applicant did not reply.  The applicant picked up a paint spade and looked as if he was doing painting work.  He then went down the goods lift with the paint spade.  He was eventually intercepted by PW1’s colleagues on the ground floor while he was trying to leave. 

4. Upon receiving a report, police officers arrived at 7:38pm.   PW2, one of the two police officers, searched the backpack of the applicant where, among other things, a spanner, torch, pliers and paint spade were found.  After cautioning the applicant, PW2 asked him a series of questions.  The applicant told PW2 that the purpose of the tools was to burgle, that is to be used for stealing.  PW2 declared arrest of the applicant for going equipped for stealing and cautioned him again.  The applicant said that he was on the roof of the building to look for a unit to burgle but he had been discovered by the watchman.  PW2 made a post-record of the conversation that he had with the applicant about an hour later at Kwai Chung Police Station to which the applicant was taken.  The applicant declined to sign the post-record.

5. The admissibility of the oral admissions made by the applicant to PW2 at the building as well as the post-record was challenged on the basis that the applicant did not say anything as alleged by PW2. 

6. The applicant gave evidence on the special issue on admissibility and also on the general issue before the judge.  The applicant told the judge that he had been threatened by the police and that he made no reply to PW2 after arrest and caution. 

7. The applicant’s evidence on the general issue was that he got into the building and went to the rooftop at 7:10pm.  He was a drug addict and he was on the rooftop for the purpose of making an injection to quench his drug urge.  He denied having held a spanner as described by PW1. 

8. The judge accepted the evidence of the prosecution witnesses whom he found to be honest and believable. 

9. The judge pointed out that while the applicant’s basis for challenging the admissibility of his oral admissions and the post-record was said to be that he had said nothing to PW2’s declaration of arrest and caution, the threat by the police as alleged in his testimony was never his case against admissibility.  The judge came to the conclusion that the admissions and post-record were admissible.  He also accepted the prosecution’s evidence on the general issue and found the evidence “clear, cogent and compelling”. 

Conviction

10. The applicant has raised three grounds of appeal against conviction:

(1)	His signature did not appear in the cautioned statement, ie the post-record, and yet the judge still admitted it.
(2)	A witness, ie PW1, testified that he had a screwdriver, but it was not produced in court at all.
(3)	When he was arrested, two police officers were with him throughout.  One of them, namely PW2, said that he admitted having burgled at the scene, while the other policeman did not mention that at all.

11. PW2, the policeman to whom the applicant made the oral admissions, recorded the conversation between him and the applicant in a post-record an hour afterwards at the police station.  His evidence was that the applicant refused to sign the post-record.  The absence of the applicant’s signature is a matter of weight of PW2’s evidence.  Since the judge accepted the evidence of PW2, the absence of the applicant’s signature on the post-record, as it having been satisfactorily explained, would not affect the veracity or reliability of PW2’s evidence as accepted by the judge. 

12. Regarding the screwdriver, it was PW1’s evidence that he had seen a screwdriver being amongst the items taken out by the police from the backpack.  The judge found that there was no screwdriver.  His comments were:

“There is nothing sinister in the fact that he [PW1] says a screwdriver was amongst the items he saw taken from the bag by police.  In fact there was not any.  Clearly he was confused on this aspect but what he is sure about, and I accept is, that he saw the defendant on the rooftop with a spanner.  He had questioned him and the defendant had left in a hurried pace to go down the lift.”

13. The judge accepted PW1’s evidence although PW1 had made a mistake as to the screwdriver.  I do not think that the attack on the judge’s acceptance of PW1’s evidence can arguably be challenged, especially in view of the fact that the spanner that PW1 saw the applicant hold on the rooftop and the paint spade were found in the backpack. 

14. The applicant complains that there was no fingerprint evidence against him, but the evidence of the prosecution witnesses of what had been found on him was more than sufficient.

15. It was PW2 who asked questions of the applicant and to whom the applicant made the oral admissions.  PW2 was also the officer who recorded the admissions in the post-record.  The other police officer who arrived at the scene with PW2 appeared to be an exhibits officer, and the fact that he did not deal with the applicant’s admissions to PW2 does not affect the veracity and reliability of PW2’s evidence of the oral admissions and the contents of the post-record.

16. Before me today, the applicant raises the point that the building was not close at the material time, by the fact remains, he did enter and remain on the rooftop as a trespasser.

17. In my judgment, the grounds of appeal are not reasonably arguable.  Therefore the application for leave to appeal against conviction is refused.

Sentence

18. When passing sentence, the judge took into account a number of matters in favour of the applicant.  After the applicant had entered the building as a trespasser it was at 7:10pm that he was found on the rooftop.  It was not dark at the time, it was an industrial building, no other persons were there, no genuine damage or loss had been caused, no weapons were found even though there was a struggle between the applicant and PW1’s colleagues at the scene, but minimal force was used.  The judge adopted a starting point of two years and six months’ imprisonment for burglary of non-domestic premises, noting that there was no element of aggravation.

19. There is nothing wrong in principle about the starting point adopted by the judge, nor is it manifestly excessive.  The applicant was not entitled to any reduction that would normally be due for a plea of guilty.  He had fought the case and lost.  He had no clear record and there was no other circumstance to mitigate the sentence.  In my judgment, the sentence of two years and six months’ imprisonment passed by the judge cannot be criticised.

20. The application for leave to appeal against sentence is also dismissed.

Advice and warning

21. I advise the applicant that he may make a fresh application within 14 days to this Court.  However, I warn the applicant that if this Court that deals with the fresh application comes to the view that it has no merit, the Court may order a loss of the time he has spent in custody to be taken away from the counting of his service of the imprisonment, and that the Court can increase sentence.