HKSAR v. CHRISTOPHER OKECHI NWOSU

CACC 201/2021

[2022] HKCA 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 201 OF 2021

(ON APPEAL FROM DCCC NO 102 OF 2021)

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J U D G M E N T

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1.  On 13 August 2021, the applicant was convicted after trial by District Court Judge M Chow (the judge)  of one charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221. On 23 August 2021, the applicant was sentenced to a total term of 18 months’ imprisonment.[1]

2.  The applicant seeks leave to appeal against his conviction only.  Mr Trevor Beel appears on behalf of the applicant in respect of the application concerning the burglary charge, while the applicant appears in person in respect of the application concerning the failing to surrender to custody charge.

The brief facts

3.  It was the prosecution case in respect of the burglary charge, that the applicant, on 9 August 2020, stole a piece of paper in the form of a notice that had been placed inside a lift of a residential building.  On 13 August 2020, the applicant was arrested on the rooftop of the residential building and was found to be in possession of the notice.  The notice in question consisted of a picture of the applicant accompanied with Chinese characters, which stated that the person in the picture was not allowed to enter the building and if residents saw that person, they should call the police.

4.  It was the defence case that the applicant had not stolen the notice but had taken it to show his Chinese friend so that he could know why his picture was on the notice and what it said.  It was also his case that he was not trespassing as he had formerly lived as a tenant in the residential building, but due to a rental increase he had to move out of his premises.  It was the applicant’s belief that he had tacit approval from the watchman at the residential building that he could sleep on the rooftop, where he had a bed and possessions.

5.  The issue at trial in respect of the burglary charge was whether the applicant was a trespasser and whether he had stolen the notice with the requisite intention to permanently deprive the owner of the notice.

The reasons for verdict

6.  Having considered all the evidence, the judge found all prosecution witnesses honest and reliable and accepted their evidence.  On the other hand, she rejected the applicant’s evidence.[2] She found the applicant was a trespasser at the material time and that he kept the notice with no intention of returning it.[3] 

7.  The judge’s findings in relation to the burglary charge were explained as follows.[4]

“9 August 2020

41. From the CCTV, I can see clearly that the defendant removed the Notice and was captured by the CCTV in the lift.

42. The defendant waited for the lift to be opened and stepped into the lift just to remove the Notice and stepped back out.

43. He did not press any button to take him to any floor.

44. He was aware that there was a Notice being posted on the wall of the lift. His whole purpose was to remove the Notice from the lift.

45. He said that he could not understand the content of the Notice as it was written in Chinese. He saw his photo on the Notice.

46. He never said that he did not understand ‘999’ which is the emergency number to call the police.

47. It was common ground that the defendant had approached PW1 as to the content of the Notice but the versions were different.

(a)  PW1 told him that he was prohibited from entering into the building;

(b)  The defendant said that he did not say anything to him. In chief, the defendant said that PW1 said to him ‘Police, go, go, go!’.

48. PW1’s evidence was very clear that the defendant was not allowed to squat in the building. He knew what was his duties as a caretaker in the building. He has to report to the management when he saw the defendant. He posted the Notice on the wall of the lift on 7 August.

49. When the residents, the Kwong brothers made a complaint to him about the defendant tearing off the Notice, he had to respond to it. I find it incredible that PW1 did not explain to the defendant as to the content of the Notice. Whether he understood what PW1 had said to him was another matter.

50. The defendant said that he kept the Notice in his bag because he planned to meet a Chinese friend to explain to him the content of the Notice on 14 August. His friend’s shop was closed between 9 August to 13 August.

51. After that, he would return the Notice to PW1.

52. It was really convenient for the defendant to say that he would return the Notice on 14 August. On 13 August he was arrested by the police for an offence of theft of the Notice. The management team also came to clear away all his personal belongings.

53. When asked why he did not use the WhatsApp function of his phone to send the pictures of the Notice to his friend, he said that his old Samsung phone [should be Nokia phone] did not have the WhatsApp function. But he used that old Samsung phone [should be Samsung Tablet] to take picture of exhibit D1.[5]

54. However, his current Samsung phone which was purchased a few months ago has the WhatsApp functions.

55. The defendant clearly is aware that the modern phones had WhatsApp functions. He knew that he could have taken the pictures of the Notice and send it by WhatsApp to his friend.

  56.   On the other hand, what he could do was to take picture of the Notice with the old Samsung phone.  He knew that the Notice did not belong to him.  He did not need to keep the actual Notice physically for his friend to explain to him.” 

The appeal against the burglary charge

8.  Mr Trevor Beel advances two grounds of appeal on behalf of the applicant.

Ground 1

9.  The first ground complains that there was excessive judicial intervention during the cross-examination of the applicant whereby the judge had wrongly and erroneously descended into the arena to the extent that the applicant did not receive a fair trial: Jones v National Coal Board[6] and HKSAR v Lai Oi Yan[7].

10.  Mr Beel submits that the judge had taken over the cross-examination from the prosecution, particularly in regard to questions pertaining to the applicant’s telephone, which he contends were predominantly “exploratory interrogatories with an interrogative purpose”.[8] He argues that the judge wrongly took over an investigative role and demanded the applicant to produce his telephone and to turn it on so that the judge and the prosecution could inspect it.[9]  The context of this investigation was in regard to why the applicant could not have simply taken a photograph of the notice to send to his friend for clarification as to its contents.  The applicant had already explained that his telephone at the time did not have this function.  He said he still had the telephone at home, while the one in his possession in court was different.[10]  It was at that point the judge requested  the applicant to produce the telephone in his possession for inspection.  It is submitted that the judge had stepped outside acceptable parameters and descended into the arena, resulting in the applicant not receiving a fair trial.[11]

11.  Ms Grace Chan, for the respondent, submits that the questions asked by the judge were not excessive, and were in a large part attempts to clarify what the applicant had said in evidence in order to clear up any ambiguity.  The impugned line of questioning pertained to the telephone used by the applicant at the time of the offence.

12.  In examination-in-chief, the applicant said he used “a phone” to take the photographs of the rooftop.[12]  In cross-examination, the applicant said at the time he was using “a Nokia phone” which did not have the function of WeChat or WhatsApp.  The judge queried the applicant as he had said he used a telephone to take pictures, initially said was a Samsung telephone and later said it was a Samsung tablet.  Ms Chan submits that the questions asked by the judge only occurred because the applicant had given confusing answers.[13] 

13.  As to the production of the applicant’s telephone,[14] the judge questioned the applicant about the telephone he was carrying, asking him to produce it, which turned out to be a Samsung telephone with a WhatsApp function.  Prior to asking the applicant to produce the telephone, the judge enquired of defence counsel whether there was any objection to it.  She said there was none and there was also no objection from the applicant who said he could unlock the telephone, which he did for the judge.  It is submitted that no objection can now be taken by the defence who agreed to the production of the telephone at the time.  It is further submitted that the ultimate issue is whether the production of telephone resulted in an unfair trial of the applicant.

14.  Ms Chan submits that looking at the case as a whole and that the interventions were restricted to the cross-examination of the applicant which were not excessive and did not go to discrediting the applicant or his case, a fair-minded and informed bystander would not conclude the applicant did not receive a fair trial.

15.  The issue is whether the judicial interventions as complained under this ground would have caused an informed bystander observing the case to conclude that the applicant had not had a fair trial.  The judge’s interventions had two parts.  First, the judge’s questioning pertaining to the applicant’s telephone, and secondly the judge’s request of the applicant to produce his telephone to the court. 

16.  It would appear that the judge in asking questions about the applicant’s telephone was seeking to clarify his testimony on this issue.  It cannot be said that the judge had improperly intervened, or did so in a manner or by the questions asked that it rendered the applicant’s trial unfair.

17.  The request by the judge for the applicant to produce his telephone was unusual, particularly when he said it was not the telephone that he used at the material time.  It is reasonably arguable that the judge may have overstepped the mark by carrying out an investigation into the functions of the applicant’s telephone at the time by making him produce the telephone in his possession in court, and then impermissibly using what was on its face irrelevant evidence to implicitly suggest that because his current telephone had a WhatsApp function he knew he could take pictures and send them to his friend.[15] As rightly pointed out by Ms Chan, this issue will ultimately depend on whether what took place had any effect on the result of the trial or denied the applicant from receiving a fair trial.[16] 

18.  I will therefore grant the applicant leave to appeal against his conviction on the burglary charge in respect of the second part of this ground.

Ground 2

19.  The second ground complains that the judge erred in law in failing to properly consider and evaluate the inherent probabilities and improbabilities of the applicant having the mens rea to steal the notice.

20.  Mr Beel submits that the evidence did not establish that the applicant had no intention to return the notice, nor did it establish that the applicant’s removal of the notice fell within the ambit of section 7 of the Theft Ordinance, which sets out the circumstances by which a person is said to have the intention to permanently deprive property belonging to another. 

21.  The applicant testified that he intended to return the notice after ascertaining what it was about.  Mr Beel submits that the applicant’s actions of approaching the watchman with the notice for clarification and keeping the notice, which had no intrinsic or inherent value, were consistent with the intention to ascertain what the notice was about.  He argues that without compelling evidence to the contrary, it was equally acceptable that the applicant would return the notice to the watchman as he had told the watchman that he had taken the notice.  Even if the applicant had the option of taking a photograph of the notice to show or send it to his friend (as suggested by the judge[17]), it did not preclude the course of action taken by the applicant.  The judge should have approached the evidence to determine the inherent probabilities or improbability and thereby to assess whether the applicant’s evidence may or might be true.  It is submitted that there was no evidence to show that the applicant’s account was inherently improbable or that he intended to treat the notice as his own to dispose of as stipulated under section 7 of the Theft Ordinance.  

22.  Mr Beel argues that the mere borrowing of an item may not satisfy the element of intending to permanently deprive, particularly if it is intended to be returned in an unchanged state: R v Lloyd, Bhuee & Ali.[18]  He submits that the short time from the taking (9 August 2020)  to the recovery of the notice (13 August 2020)  did not amount to a disposal or an outright taking of the notice; and that the taking of the notice constituted a borrowing of it by the applicant, who intended to return it in the same form, unchanged and undamaged (and in fact it was recovered in such a condition).

23.  Ms Chan submits, among other things, that the judge had properly assessed the case[19] and correctly accepted the evidence of the prosecution witnesses and rejected that of the applicant.[20]

24.  Ms Chan highlights various pieces of evidence that support the judge’s rejection of the applicant’s evidence, such as: 

(a)   In rejecting the applicant’s evidence, the judge said “an important piece of evidence” was that the applicant himself said he took photographs of the rooftop because the watchman (PW1)  had warned him that police would be called one day.[21] That supported the evidence of PW1 and his supervisor (PW3)  that the applicant was not allowed to stay in the building and contradicted the applicant’s assertion that he had permission to stay.[22] 

(b)   There was evidence to show the applicant already knew he was not permitted to stay in the building prior to his taking of the notice:  PW1 had tried to persuade him to leave the building, twice the police had been called in attempts to get him to leave, the management had cut off the water supply since July 2020 and put up the notice on 7 August 2020.[23]

(c)   It was the applicant who spoke to PW1 in Chinese asking him to explain the notice.  PW1 understood what the applicant said in Chinese and explained it to him also in Chinese.  It is submitted that the applicant by his response to PW1 and leaving the building, suggested he understood the explanation given to him about the contents of the notice.[24]

25.  Ms Chan submits that given the background that the applicant knew he was not permitted to stay in the building and that the watchman had explained the notice to him, the applicant essentially knew what the notice was about.  As such, the judge was entitled to find the applicant has no intention to return the notice.

26.  By this ground of appeal the applicant is essentially asking an appellate court to re-evaluate the evidence.  The assessment of the reliability and credibility of the applicant’s evidence was very much a matter for the judge, and an appellate court would not interfere with such an assessment unless there was good reason for doing so.[25]  There was no issue that the applicant took the notice and it was therefore open to the judge on the evidence to find that he had no intention of returning the notice given it was in his possession for several days after he took it. 

27.  I am not persuaded that this ground is reasonably arguable.  The issue at trial was whether he was a trespasser of the building and whether he took the notice with the intention to not return it to its owner.

The appeal against the failing to surrender charge

28.  The applicant did not articulate any coherent grounds of appeal against the failing to surrender charge.  He basically repeated his explanation for breaching his court bail which had been rejected by the judge. 

29.  I therefore have no hesitation to reject his application on this ground.

Conclusion

30.  The result of this application is that I grant the applicant leave to appeal against his conviction in respect of the burglary charge for the complaint articulated under the second part of Ground 1 and refuse him leave in respect of the other complaints that have been advanced in relation to the burglary charge and the failing to surrender charge.

31.  In respect of the complaints for which leave has been refused, I inform the applicant that he has a right to renew his application for leave to appeal to the Court of Appeal.  However, he is also informed, if he does so, that the Court of Appeal has the power to order loss of any time which he has spent in custody pending his appeal, if the Court were to come to the conclusion that there was no justification for the renewal of the application.