HKSAR v. NG WAI HING

CACC 621/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 621 OF 2002

(ON APPEAL FROM DCCC NO. 588 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant, Ng Wai Hing appeared before Judge Whaley in the District Court on an indictment consisting of a charge of burglary and a charge of assault with intent to prevent lawful apprehension. On 3 December 2002, the applicant was convicted after trial on both charges and sentenced to the respective terms of 3 years and 4 months imprisonment to run concurrently. The applicant sought leave to appeal against both conviction and sentence.

2. On 14 March 2003, Woo JA refused his application relating to conviction but granted him leave to appeal against sentence. The applicant now renews his application for leave to appeal against conviction.

Prosecution Case

3. The victim, Mr. Fang Tian-zhang is a tourist guide from the Mainland. On 18 April 2002, he led a tour group and checked into the Metropole Hotel. He occupied Room 509 together with another member of the group, one Mr. Ma.

4. Mr. Fang switched off the light to go to sleep at about 2 a.m. the next morning. He was later awoken when there was light from the opening of the cupboard. He also heard the noises of someone going through the clothes hangers in the cupboard. Mr. Fang put on his glasses and saw two hands searching a pair of trousers hanging up in the wardrobe.

5. Mr. Ma was also awoken and he shouted, "Who is it?" whereupon the intruder opened the bedroom door and started to leave. A pair of Mr. Ma's trousers was found lying on the floor next to the cupboard.

6. Mr. Fang immediately jumped out of bed and chased after the burglar. He saw the applicant just 2 to 3 metres ahead and there was no one else in the corridor. The applicant ran down the fire escape staircase, hotly pursued by Mr. Fang who also shouted, "catch thief".

7. When they reached the lobby floor, the applicant and Mr. Fang were each on one side of the door with a glass panel. They were looking at each other. The applicant tried to prevent Mr. Fang from opening the door whereas Mr. Fang threatened to break the door with what appeared to be a red fire extinguisher.

8. The applicant then let go of the door and continued to run and got into a big room behind the lobby area. He then went into a smaller room. Mr. Fang waited outside the big room and armed himself with a fire extinguisher.

9. Mr. Fang was able to see through the glass panel. The applicant trice tried to open the door and then close it again. Finally the applicant came out and asked Mr. Fang what he was looking for.

10. The applicant denied the suggestion that he had entered Mr. Fang's room earlier and they then proceeded to the lobby to try to clarify the matter. As they were walking, the applicant suddenly turned around to punch Mr. Fang, knocking off his glasses and causing his mouth to bleed.

11. The applicant then ran upstairs, followed by Mr. Fang. On the 14th Floor, the applicant attacked Mr. Fang again. There was then a struggle and both of them rolled down the stairs to the 13th Floor.

12. The applicant told Mr. Fang that he also came from China and asked to be released. He said he did not take anything. He offered to give his Rolex watch and money to Mr. Fang if he would be released.

13. Mr. Fang refused the offer and told the applicant that he would only let him go if there was nothing missing from his room. They then walked down the stairs to the 5th Floor. On the way, they came across the security officer of the hotel and Mr. Ma. The applicant was then arrested and handed over to the police.

14. When questioned by the police, the applicant said he met a Cheung Chi-wah (Cheung) in a bar in Kowloon and lent him $100. Cheung told him that he was staying at Room 521 of the Metropole Hotel. The applicant only went to Metropole Hotel to get back the $100. He came across a room and found the door open. The applicant said he went inside only to find that he had gone into a wrong room.

15. The applicant also gave a statement to the police under caution. The contents of his statement are consistent with his evidence in court.

Defence

16. He described in court how he came across Cheung in the bar and settled his bill for $180 when Cheung said he did not bring his wallet. He later took a taxi with Cheung to go back to Metropole Hotel in order to get back the $200. Cheung had earlier said he occupied Room 521.

17. On arrival, Cheung said it was inconvenient for the applicant to go up as it was late at night. He asked the applicant to wait in the taxi. Cheung did not return and the applicant decided to go up to look for him.

18. The applicant said he went up to the 5th Floor and knocked on Room 521. There was no response. When he walked past Room 509, he saw the door open. He said he wondered if Cheung was inside and he knocked on the door. There was no response and he therefore poked his head inside. He found it was dark and he immediately withdrew and tried to leave. He was however pursued by Mr. Fang who accused him of trying to steal.

19. The applicant said Mr. Fang attacked him and he tried to run away. He cried out for help but there was no one around. He said he tried to avoid Mr. Fang but was unsuccessful and that was why he had to keep running from him.

Judge's Finding

20. The judge had a detailed and careful analysis of the applicant's evidence and rejected it. The judge found Mr. Fang to be a honest and reliable witness. The judge concluded that the applicant indeed entered Mr. Fang's room with a view to steal therefrom. The judge also found that the applicant had assaulted Mr. Fang in order to avoid being apprehended. The judge therefore convicted the applicant as charged.

Grounds of Appeal

21. In this application, the applicant emphasizes the unreliability of Mr. Fang. He said Mr. Fang was dishonest and had made the false accusation against him to avoid being sued for the assault on him. The applicant refers to Mr. Fang's visual impairment and the discrepancies between his evidence and the content of his witness statements. He points out the earlier comment by the acting Chief District Judge that the case should be dismissed if Mr. Fang did not attend court to give evidence. He suggests that the telephone card he had could not open the door of any of the hotel rooms and that there was no fingerprint or DNA evidence. He said Mr. Ma had assaulted him and yet was not called to give evidence. He also said the police had not handled the case properly.

22. The applicant concludes by saying there was insufficient evidence or exhibit to show that he had entered Room 509 and that he was convicted because of the judge's bias against him.

23. We have considered the evidence as well as what the applicant has urged upon us carefully. We must say at the outset that the applicant's defence is preposterous. His explanation of how he went to Metropole Hotel and how he poked his head into Room 509 is simply unbelievable. If he was looking for Cheung, he should have done this through the hotel staff.

24. In any event, the judge had carefully analyzed his evidence and rejected it. The judge was perfectly entitled to do so. The judge was also entitled to accept the evidence of Mr. Fang. On Mr. Fang's evidence, clearly the applicant had entered Room 509 as a trespasser with a view to steal therefrom. He had also assaulted Mr. Fang to prevent apprehension. The applicant was rightly convicted. There is nothing unsafe or unsatisfactory about the conviction. The application for leave to appeal against conviction is refused.

Appeal Against Sentence

25. Woo JA granted the applicant leave to appeal against sentence because he took the view that a full panel of the Court of Appeal should consider the issue of whether a hotel room should be treated as domestic premises for the purposes of sentencing.

26. In R v Wong Man Cr. App. 372 of 1992 and R v Chan Yui-man Cr App 36 of 1988, the Court of Appeal had laid down guidelines for sentence in case of burglary of non-domestic and domestic premises where the defendant is a first offender of full age. The court set the respective starting points at 2 1/2 years and 3 years.

27. The judge, in adopting a sentence of 3 years for the charge of burglary took the view that hotel room should be categorized as domestic premises for sentencing purpose. He said:

"It is true that a hotel is not a home- it is different from people's room-and also true that the guests have to pay for their accommodation, so that they are commercial in that sense. However, in my view, the hotel has more in common with domestic premises than non-domestic premises for the purposes of sentencing and the purposes of the guidelines. A hotel is after all intended to be a 'home away from home' for travellers, and the victims were sleeping in what they thought was the security and safety and comfort of their own bedroom at the time, which is quite different from commercial premises in the normal sense of that term."

28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.

29. It may not be too helpful to decide if a hotel room should be categorized as domestic or non-domestic for sentencing purpose. A hotel is in a category of its own. But the aggravating factor involved in burglary of domestic premises is certainly present in the case of burglary of a hotel room.

30. Indeed a hotel is meant for visitors to whom the trauma of being burgled may well in some case be more profound and intense, particularly if passports, credit cards and spending money or the like are stolen. The image of Hong Kong in the international community will also be significantly affected by such crime.

31. We are of the view that burglary of a hotel room should at least attract the same sentence as that of domestic premises. The judge is right in adopting a starting point of 3 years for the burglary charge.

32. The sentence imposed on the applicant is neither wrong in principle nor manifestly excessive. Indeed, the applicant should consider himself extremely lucky to have been given a concurrent sentence. There is no reason why the sentence on the assault charge should not be consecutive to that of the burglary charge. On the contrary, this was a separate offence deserving of an additional penalty.

33. There is no merit in the appeal against sentence and the same is also dismissed.

Conclusion

34. Both the application for leave to appeal against conviction and the appeal against sentence are dismissed.

35. The application for leave to appeal against conviction is completely devoid of any merit and we shall order that three months of the time the applicant has served pending this application shall not be reckoned as part of his sentence under the terms of section 83W of the Criminal Procedure Ordinance.