R. v. CHAN KWOK WAI and Another

IN THE COURT OF APPEAL

1996, No. 458

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The 1st applicant in this matter pleaded not guilty to one charge of burglary. The 2nd applicant pleaded guilty to that charge and to three similar charges in Criminal Appeal No.459 of 1996. The joint charge reads as follows: That the two applicants on the 19th of December 1995, having entered as a trespasser a building in Flat A on the 26th floor of Tower 2 of Goodrich Garden, Tuen Mun, stole four gold wrist chains, five finger rings, two necklaces, one platinum brooch with jade, one pearl chain, three watches, one brown purse containing cash , one Hong Kong identity card, a pen, a coin bag and several miscellaneous items.

2. The facts relating to that charge revealed that Mr. Ling, a watchman, became suspicious when he was doing his rounds and kept premises on the 26th floor under observation. He saw the two applicants come out carrying bags. He gave the alarm and colleagues on the ground floor then shut the doors of the building. The 2nd applicant was apprehended when leaving the lift. the 1st applicant left the lift carrying two bags. He did not answer questions directed to him by the watchman on the ground floor and suddenly fled out through the front door. One of the watchmen and an electrician who happened to be on the premises gave chase. During the chase he was seen to drop the bags. The two men lost sight of him only momentarily when he turned round the corner. Eventually he stopped and deterred the two men from approaching him by saying that he had a gun. A police officer however arrived shortly afterwards and he found him standing breathlessly at a table. On a search he found no gun but did find an identity card which belonged to a lady, one of the occupants of the flat which he had been seen leaving shortly before. This card was found in his rear pocket. He said in his defence that he had been playing cards and that an unknown man had come up and handed the identity card to the police officer. He was identified by Mr. Ling and by three of the four men who had been waiting in the ground floor lobby. The trial judge said:

"Admittedly none of these identifications were made in ideal conditions but they were more than fleeting glimpses. Then two of those men chased him in close pursuit, losing sight of him only briefly as he rounded corners, until he stopped breathless and made his remark about the gun. Those two saw him drop the bags during the chase - both bags were full of stolen property.

Finally the police officer, who was unconnected with all of them, noticed D1 was still breathless and he found the identity card from the burgled property in D1's pocket.

I do not accept the suggestion that he suddenly and maliciously decided to give the identity card to D1. The evidence against D1 is overwhelming and I find him guilty."

3. The 1st applicant now appeals against that finding on three grounds. Firstly he complains that no identification parade was held. The trial judge was well aware of this and was well aware of the circumstances surrounding the identification of the applicant and his apprehension after hot pursuit. We find nothing in the suggestion that no identification parade was held. He then argues that during the trial prosecution witnesses had spoken together but himself reveals that this matter was brought to the attention of the trial judge and was dealt with by him. The judge was, of course, the appropriate person to deal with that matter and properly did so in the course of the trial. He finally says that only one police officer spoke of the finding of the identity card despite the fact that there were other police officers who might have seen it. This was something about which submissions could be made at trial suggesting that the evidence of the police officer who found the card was unreliable, and no doubt they were, but the trial judge was clearly satisfied, and, indeed, specifically so ruled, that the officer was an acceptable witness. The evidence was, as the trial judge said, overwhelming. The first applicant was caught red-handed. The finding of the identity card on his person alone was, in the circumstances, conclusive evidence of participation in the burglary. Nothing has been raised that gives us any doubt as to the propriety of the conviction. The application for leave to appeal against it is, therefore, dismissed.

4. We turn now to sentence. Both the 1st applicant and 2nd applicant appeal against their sentences. When sentencing the 1st applicant the trial judge said:

"I take a starting point ...... this being a domestic burglary, I take a starting point of three years' imprisonment. There are no mitigating circumstances for the 1st defendant, and the 1st defendant is sentenced to three years' imprisonment in that case..."

5. The 2nd applicant also pleaded guilty to three similar burglaries. They are almost exactly similar in that they were domestic premises, and in one there seems to have been a very large quantity of valuable jewellery involved. They took place on 8th, 20th and 24th April and in each case the 2nd applicant entered the premises by prising open either a window or a door. The trial judge said in relation to him:

"There are no mitigating circumstances save the defendant's pleas of guilty. The fact is he committed three more domestic burglaries whilst on bail. They are all separate offences at different premises and on different days in the month of April, but insofar as all were in April I suppose they might be described as one series.

I have to be realistic and look at the totality of the likely sentence to be imposed. The defendant is already serving two years and three months in the other case I have just dealt with. On charge one he of course is acquitted, the prosecution offering no evidence.

I take into account on charges two, three and four, the defendant's pleas of guilty and the fact that it is one series of offences. I impose two years' imprisonment on each of charges two, three and four, concurrent with each other but consecutive to the sentence in case number 52, that is to say, an effective total of four years and three months' imprisonment."

6. As to the 1st applicant, the judge imposed a sentence of three years. That being the proper sentence after trial for a domestic burglary in such circumstances we are unable to find any reason why that the sentence should be in any way discounted. The applicant pleaded not guilty, denied the charge throughout; showed no remorse and, despite his submission to the contrary, does not have a good character.

7. The 2nd applicant asked that his overall sentence of 4 years 3 months be discounted saying that he is deeply remorseful, that he has his mother to care for and that he has turned over a new leaf. These are not matters to which we consider we can give any real weight. The sentences as assessed by the judge were in our view entirely correct ones and the applications for leave to appeal against those sentences must, therefore, also be refused.