HKSAR v. XU MANDONG

CAC C 359/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 359 OF 2011

(ON APPEAL FROM DCCC NO. 672 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant (Xu Mandong) appeared before Judge Geiser (the judge) in the District Court on a charge of attempted burglary.  The applicant pleaded not guilty, but was convicted and sentenced to three years’ imprisonment.

2.  Represented by Mr Charles J Chan, the applicant sought leave to appeal against conviction only.  On 24 January 2013, we dismissed the application and indicated that we would hand down our reasons in due course.  This we now do.

The Prosecution Case and Evidence

3.  The prosecution alleged that the applicant prised the lock on the wooden door at the rear entrance of the premises on the 11/F of Bo Sun Court, No 953 King’s Road, Hong Kong (the premises) with a screwdriver.  The suggestion was that the applicant had intended to enter the premises as a trespasser to steal.

4.  At the material time, Madam Chan and her husband resided at the premises.  At about 6.30 pm on 26 May 2011, Madam Chan heard noises from the rear entrance of the premises and when she opened the wooden door, she saw police officers making enquiries.  Madam Chan found the iron grille of the rear entrance open and there were prise marks on the wooden door near the lock.

5.  The evidence against the applicant came mainly from PC 8417 who, together with his colleagues, was on anti-crime patrol in North Point.  According to PC 8417, he and his five colleagues took a lift to the rooftop of Bo Sun Court to perform a vertical patrol.  When he was at the rooftop, he peered down the rear staircase and saw the applicant standing outside the rear entrance of the premises, with a screwdriver in his right hand.

6.  PC 8417 said when he saw the applicant using the screwdriver to prise the lock on the door he immediately ran down and shouted “don’t move”.  However, the applicant threw away the screwdriver and ran downstairs, trying to escape.  PC 8417 chased after the applicant and successfully intercepted him between the 10^th and the 11^th floor.

7.  PC 8417 then took the applicant back to the premises.  PC 8417 noticed that the iron grille was half open and that there were three prise marks on the wooden door near the lock.  When arrested and cautioned by PC 8417 for attempted burglary, the applicant said he was looking for his cousin by the name Wu Tsz-kit.

8.  Madam Chan did not know the applicant or Wu Tsz-kit.

9.  Sergeant 53703 was tendered by the prosecution for cross-examination.  He disagreed with the defence suggestion that when he arrived at the location between the 10^th and the 11^th floor where the applicant was intercepted, he told PC 8417 that he and his colleagues should find a screwdriver from somewhere to frame the applicant up for attempted burglary. 

The Defence Case and Evidence

10.  The defence suggested that it was a police frame-up as the applicant did not have a screwdriver and had not used one to prise at the lock on the door of the premises.  It was put to PC 8417 that he had received the instruction from Sergeant 53703 to find a screwdriver in order to frame up the applicant for attempted burglary.

11.  The applicant did not give evidence, but called Wu Tsz-kit to give evidence on his behalf.  Wu Tsz-kit confirmed that he was the owner of Hoi Foo Restaurant on the ground floor and 1^st floor of Bo Sun Court and that the applicant was his cousin.

12.  Wu Tsz-kit said that the applicant normally resided in Shantou in Zhouyang.  In May 2011, the applicant visited Hong Kong and he allowed the applicant to stay in the staff quarters of his restaurant on the 1^st floor of Bo Sun Court.  Wu Tsz-kit further said that on 26 May 2011, he finished meal at his restaurant with the applicant at about 6 pm and after that he did not see the applicant.

The Judge’s Findings

13.  The judge pointed out that the only issue was the credibility of PC 8417.  The judge found PC 8417 to be an extremely good witness as he remained unshaken in cross-examination.  The judge rejected the suggestion that the applicant was framed up by the police.

14.  The judge pointed out that the applicant was intercepted between the 10^th and the 11^th floor where the applicant had no business.  The judge found that the applicant did tell PC 8417 that he was there looking for Wu Tsz-kit, but that it was not true as Wu Tsz-kit did not live on the 11^th floor.

15.  In paragraph 7 of his reasons for verdict, the judge said:

“In cross-examination of this witness (PC 8417), amongst other things it was put to him that when he saw the defendant from his position at the rooftop the defendant did not have a screwdriver in his hand. The witness disagreed with this. It was also suggested to him that when Sergeant 53703 arrived at the location where the defendant was intercepted – that is between the 10^th and 11^th floors – that he told the witness that he and his colleagues should find a screwdriver from somewhere and frame the defendant up for attempted burglary. …”

16.  In the end, the judge found that the applicant had used a screwdriver to try to prise open the rear door of the premises and he convicted the applicant as charged.

Grounds of Appeal

17.  Mr Chan suggested that the judge had not given sufficient reason for accepting the evidence of PC 8417 and rejecting the defence case.  Mr Chan argued that the judge’s conclusion that PC 8417 remained unshaken in cross-examination was not a sufficient reason in fact and in law.  Mr Chan relied on HKSAR v Kevin Egan (2010) 13 HKCFAR 314 and Zhuo Chui Hao v Ting Fung Yee [1999] 3 HKC 629 to support his contention.

18.  In so far as the judge commented in paragraph 7 of his reasons for verdict that it was the defence’s suggestion that the applicant was intercepted between 10^th and 11^th floor, Mr Chan argued that the judge was wrong as it was the defence’s suggestion that the applicant was intercepted between 9^th and 10^th floor, which was one floor below what PC 8417 had suggested.

19.  Mr Chan further argued that the way in which PC 8417 described how the screwdriver landed on a paper box was surprising in what he suggested was a “discover-and-chase scenario”.

20.  Mr Chan submitted that the judge had not applied his mind to those two matters, which would cast a doubt on the truthfulness and reliability of PC 8417.

Discussion

21.  A judge should of course give sufficient reason as to why he has reached a particular decision so as to enable people to understand the foundation of the decision.  However, whether the reasons given by the judge are sufficient depend on the facts, the extent of the disputes between the parties and the context in which the issues arise in each case.

22.  A District Court Judge is not obliged to deal with every point raised by the parties in the reasons for verdict and needs only to refer to those parts of the evidence which bear upon the issues that have to be decided.  As observed by Black-Kerr J in R v R E Low [1961] HKLR 13 at p 82:

“But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

…I think an appellate court should act with the greatest caution before interfering with the District Judge’s findings if, having regard to the whole of the evidence, such findings appear reasonable”

23.  The case was a simple one and as the judge had put it, “The only issue in this short case revolved around the credibility or otherwise of the arresting officer, PW1, PC 8417”.

24.  PC 8417 said he saw the applicant outside the rear entrance of the premises, using a screwdriver to prise at the lock of the door.  The applicant suggested through his counsel that it was a fabrication.  It was the applicant’s case that he told PC 8417 that he was looking for Wu Tsz-kit.

25.  The evidence of PC 8417 was clear.  He said he saw the applicant outside the rear entrance of the premises.  When PC 8417 shouted “don’t move”, the applicant simply threw away the screwdriver and ran downstairs and he was intercepted between the 10^th and the 11^th floor.

26.  Whilst it was suggested to PC 8417 that the applicant was actually intercepted “one floor below”, counsel for the applicant told the judge that it was very confusing with the Chinese and English version of the floor numbers.  Counsel said it was actually 9^th and 10^th floor without saying whether it was according to the Chinese or English way of describing the floor numbers.  9^th and 10^th floor in English would mean 10^th and 11^th floor in Chinese.

27.  When counsel put to PC 8417 that the applicant was intercepted one floor below the premises, counsel was suggesting that the applicant was intercepted on the 10^th floor which was hardly different from the evidence of PC 8417 that the applicant was intercepted between the 10^th and the 11^th floor.

28.  It was not explored before the judge as to where exactly the applicant was intercepted.  When PC 8417 was being cross-examined by counsel for the applicant, the emphasis was clearly only on the suggestion that it was a frame-up by the police as demonstrated by the following questions and answers:

Q. Now, officer, I put to you that actually when you saw the defendant when you were at the rooftop level, the defendant did not have a screwdriver in his hand.

A. I disagree.

Q. It was your sergeant, Sergeant 53703, who arrived at the location where you stopped the defendant, which is one floor below the premises, and informed you and your colleagues to find a screwdriver somewhere and frame him up for attempted robbery – burglary.

…..

A. I completely object to that.   

29.  In paragraph 7 of his reasons for verdict, the judge was emphasizing, not the place of interception, but on the defence case that Sergeant 53703 told PC 8417 to find a screwdriver from somewhere to frame up the applicant.

30.  PC 8417 described how the applicant threw away the screwdriver when he shouted “don’t move” and the screwdriver was subsequently found on top of a paper box outside the rear entrance of the premises.  Counsel for the applicant described it as “a very accurate throw”.

31.  It is immaterial how counsel wished to describe a particular piece of evidence.  If the screwdriver happened to land on a different spot, counsel might wish to describe it in another way.

32.  The applicant did not give evidence and there was no evidence to contradict or challenge the evidence of PC 8417.  There was no suggestion from the defence that the screwdriver was found at a different spot.

33.  We failed to see why the judge had to deal with the two matters, namely where was the applicant intercepted and where did the screwdriver land, in the way as suggested by Mr Chan.

34.  The judge pointed out the undisputed evidence that Madam Chan did not know Wu Tsz-kit and that Wu Tsz-kit did not live on the 11^th floor. According to Wu Tsz-kit, he in fact finished a meal with the applicant shortly after 6 pm, which was less than 30 minutes before the applicant was intercepted by PC 8417.

35.  The judge found that the applicant had no business on the 11^th floor and that was a clear indication as to why he did not accept the defence case that the applicant was looking for Wu Tsz-kit just before he was intercepted by PC 8417.

36.  The judge found that the applicant had lied to PC 8417 and that he had attempted to escape after realizing that PC 8417 saw his unsuccessful attempt to gain entry to the premises.

37.  Those findings were clearly consistent with the evidence of PC 8417 that the applicant had used a screwdriver to prise at the lock of the rear entrance door of the premises.  The only reasonable inference was that the applicant had intended to enter the premises as a trespasser in order to steal.

38.  On the facts of the case, the judge had given adequate reasons for accepting the testimony of PC 8417.  The judge had properly convicted the applicant of the charge of attempted burglary.

39.  None of the grounds of appeal put forward by Mr Chan had any merits.  We did not find the conviction against the applicant in any way unsafe or unsatisfactory.  The application for leave to appeal against conviction was therefore dismissed.