HKSAR v. SURINDER SINGH

CACC 348/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 348 OF 2011

(ON APPEAL FROM DCCC NO. 470 OF 2011)

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BETWEEN

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J U D G M E N T

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

1.  This is an application for leave to appeal against conviction. The applicant pleaded not guilty to a charge of burglary, namely on 8 April 2011 he attempted to enter as a trespasser part of a building namely the ground floor No. 1P Marble Road, North Point with intent to steal.

2.  On 8 August 2011 he was convicted by Deputy District Judge Surman and sentenced to two years’ imprisonment.

3.  At the material time the applicant resided at 1L Marble Road on the 2^nd floor, North Point.  At or by the same building on the ground floor a Ms Chau ran a shop secured with wooden boards and a padlock each night and it was secured on the nights of 7 and 8 April 2011.  At about 11.30 p.m. near Marble Road, the applicant was searched by a police officer but nothing untoward was found on his person. 

4.  The prosecution called as a witness another police constable who said he saw the applicant acting suspiciously in the Marble Road area and that was at about 1.50 a.m. on 8 April in the Marble Road area he put out a radio call to colleagues. 

5.  A third officer responded and his testimony was that he saw the applicant used a screwdriver trying to prise open a padlock of Ms Chau’s shop and the applicant was arrested.  He allegedly seized a screwdriver from the applicant who was taken to police station and when interviewed there, the applicant elected to remain silent.

6.  The applicant gave evidence denied all this save for the fact of the earlier search and his later arrest.  He said that he had been out and was heading hence and was arrested.  He denied possessing a screwdriver or attempting to burgle the shop. 

7.  The judge said that he believed the testimony of the officer who said that he had observed the applicant trying to prise open the padlock.  He rejected the evidence of the applicant but in doing so he said:

“27. Given your evidence, defendant, I have no hesitation in rejecting it for reasons that are implicit above and what I have already said. But for the sake of clarity, the reasons for rejecting your evidence include the following:

(a) Your inability to identify your own building in the photographs;

(b) Your version of the arrest and the number of officers not being put or suggested to PW2;

(c) The fact that when you were interviewed you remained silent when, on your own case, you were being shown the screwdriver for the very first time. Now, with regard to this point, I am naturally very cautious about it and I remind myself that you would quite properly have been reminded of your absolute right to silence at this time. The fact remains that you said nothing in the interview.

(d) Your evidence that you had not noticed or noted what PW3’s shop sold or what business it did because you were busy.  And I note here that of course you are through no fault of your own unemployed.”

8.  It is difficult to understand what use the judge made of the applicant’s silence but it would seem clear from what he expressly said that it was one of the reasons for rejecting the applicant’s testimony. It is well-established however that it is not in these circumstances permissible to use a person’s exercise of the right of silence against him in any way: see Lee Fuk Hing v. HKSAR (2004) 7 HKCFAR 600, HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 and HKSAR v Cheung Oi Hin [2009] 1 HKLRD 57. 

9.  Since this is a material reason underlying the judge’s decision the conviction cannot stand.  We are little surprised that the respondent sought to submit it.

10.  We would add that, this apart, there was an admitted fact which was that on the day following the incident Ms Chau checked the padlock to the shop-shutting partition but “no damage was found to the padlock or partition”.  Counsel for the applicant made some play of this at trial, as to which the judge said:

“I note the Admitted Facts at paragraph 9 where it states that there was no damage. However, I also note the photographs and particularly Exhibit P2, photograph 1, which shows a variety of marks on the wood in the vicinity of the padlock. And I am entitled to look at that photograph and make of it in my function as a jury what I may.”

11.  We have looked at the photograph and there are clearly many scratches and marks on the partition of varying vintage so one cannot possibly say whether any was caused by this applicant and the judge does not suggest damage to the padlock.  When the judge made his comment “I am entitled to look at the photograph and make of it in my function as a jury what I may” the question begged is: what did he make of it?  If he used it to contradict an admitted fact, that too was inadmissible: see R v Chan Chun Man [1986] HKC 261 and HKSAR v Au Koon Yip and Others [2004] 2 HKC 635.

12.  Accordingly, we grant the applicant leave appeal against conviction, treat the hearing of this application as the appeal, allow the appeal and quash the conviction.