HKSAR v. CHAN WING YUEN

CACC 252/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 252 OF 2002

(ON APPEAL FROM DCCC NO. 159 OF 2002)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 On 18 December 2001 two premises in the same building in Argyle Street, Mongkok were burgled. They were premises facing each other across a narrow corridor: the first used as offices, numbered 48 Argyle Street on the seventh floor; and the other a residential apartment numbered 50 Argyle Street, on the same floor. Three men were charged with both burglaries of whom the applicant was one. He was convicted of both offences by Deputy Judge Browne on 15 May 2002 and sentenced to a total term of three years and six months' imprisonment. He now seeks leave to appeal against the conviction in respect of the second burglary alone. He says that there was insufficient circumstantial evidence from which to draw the sole inference that, although guilty of the first burglary (the offices), he was also party to the second (the apartment).

2 The facts fall within a narrow compass. At about 9 p.m. on 18 December 2001, the police came across three men on a staircase of the building; and they were this applicant, and two others to whom we shall refer as D2 and D3. They were carrying a swivel chair on which was a safe which was covered in a bed sheet. On seeing the police, the men tried to beat a retreat with the safe up to the mezzanine floor, and when the police told them to stand still, they abandoned their loot and fled, but were caught nearby.

3 The safe had been taken from an office on the seventh floor of the building and, from the photographs produced at trial, we can see that the door lock was broken, and gouged from the door frame. Charge 1 represented this break-in and theft of the safe and the chair.

4 Across the corridor lies number 50 Argyle Street, which comprised three cubicles and a common living room. Those premises had been left unattended but secured at about 6.30 p.m. that evening. The police noticed when they were attending to the first burglary that these premises too had been entered forcefully; and it transpired that the occupants had been deprived of a variety of property, including jewellery and some cash. When the three men were arrested and searched there was found on the person of D3 a watch and a pen which had been stolen from the cubicles. The applicant had on him only a plastic bin liner in the rear pocket of his trousers as well as some renminbi and over $3,000 in Hong Kong dollars. Over $6,000 had been stolen from the flat of 50 Argyle Street as well, it is said, as a quantity of renminbi although what that quantity was we do not know, and it was not part of the property allegedly stolen as particularized in the charge. It was of course not possible specifically to identify the cash found on the applicant as the same as that stolen. Charge 2 asserted burglary of these premises with the theft of the various items of jewellery and a mobile telephone and a pen and a watch.

5 The applicant gave evidence at his trial, but it was disbelieved. Briefly, it was that he had received a telephone call from D3 to ask him to come to the building to help remove some objects belonging to D3's company, and that he, the applicant, agreed to assist. He took no part in the burglary, he said, and did not know that the safe which he helped moved had been stolen. The finding against him in relation to his credibility is not now challenged.

6 In his Reasons for Verdict, the trial judge said that the prosecution case was circumstantial. He referred to the circumstances in which the three defendants were found by the police; the property found on D3; the fact that none of the other property the subject of Charge 2 was recovered; as well as the flight of the three men. The judge's conclusion ran as follows:

"Having rejected the evidence of D1 and D2 and DW1, and having taken into account the reactions of D1 and D2 when they were first apprehended, and all the other circumstantial evidence, I was irresistibly drawn to the conclusion that D1 and D2 participated in both the burglaries with which they were charged. I was sure of this beyond reasonable doubt." (Tr p 18).

The reference by the trial judge to the reaction of those two defendants, in so far as it is relevant to this applicant, was that when this applicant was asked why he had run, he did not reply, nor did he say to whom the property belonged.

7 There is one ground of appeal which is this: that as to the second burglary the facts allow of more than one conclusion than that the applicant was party to that burglary. There is, it is said, nothing to link the applicant to the second charge. He was not seen entering the apartment, and none of the stolen property was found upon him. The fact that some of the stolen property was found upon D3 is equally consistent, it is said, with D3 having entered the premises without aid from this applicant, or earlier than the applicant's arrival at the building. There is no finding by the judge as to when the applicant arrived at Argyle Street, and there is the stark fact that the bulk of the property taken from the apartment was never found, despite the fact that the applicant was arrested at the scene of the crime. One cannot exclude the possibility, it is contended, that he arrived after the burglary of the apartment, or that it was in some other scenario that the burglary of that apartment took place.

8 Ms Chan for the respondent has taken us to the suggested circumstantial evidence, and we can see that it raises very considerable suspicion. She says that the applicant had renminbi on his person, and that renminbi and Hong Kong dollars were stolen from the apartment. That really takes the matter no further, for renminbi and Hong Kong dollars are not unique articles; and the judge specifically said in his Reasons for Verdict that the two items found on D3 were the only items recovered in respect of the burglary from the apartment and we note, indeed, that Charge 2 does not allege theft of renminbi.

9 The evidence in respect of Charge 2 against this applicant is such that there must be very strong suspicion that he took part in that burglary. Although referring to the circumstantial evidence, the judge has not however said why it was that he has dismissed the possibility that this applicant arrived after the burglary of the apartment or whether the only defendant on whom property had been found might, at an earlier time, have entered the apartment before the arrival of the other two, that apartment having been vacant since 6.30 p.m.; a scenario which might explain why most of the property taken from that apartment was not recovered from those arrested at 9 p.m. We agree that the scenario which suggests that the applicant was party to the burglary of the apartment is likely; but it cannot be said that the other scenarios were not on the facts real possibilities. That being so, there should not have been a conviction on Count 2.

10 Accordingly, we grant to the applicant leave to appeal against his conviction in respect of Charge 2 and, treating this hearing as the appeal, we allow the appeal, and quash the conviction and sentence in relation to Charge 2.