HKSAR v. ELVIN RAMON L. ZUNIGA

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 146/98

(ON APPEAL FROM SKC-4217 OF 1997)

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J U D G M E N T

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1. The Appellant was found guilty on a charge of burglary.

2. The facts of the case are that PW1 left his flat on 2nd floor of No. 9A Humphreys Avenue at about 6:40 a.m. on 7/12/97 to buy newspaper. After about 7 min later he returned and found the Appellant there.

3. PW1's evidence is quite muddled and confusing. In a leading question by the prosecution at p. 12 of the deposition he agreed that he saw Appellant walking out of his flat.

4. However, later at p. 14 he was asked whether he had closed "閂" the door, he said he had. Later on at p. 16 he said the first time he saw the Appellant, he was at the door about 8' to 10' away and that the door was closed (閂). At p. 17 he said he caught the Appellant right at the door.

5. The learned Magistrate when giving his reasons orally he observed PW1's evidence was not consistent (口供有前後唔一致嘅地方). However, he did not consider this aspect in his written reasons for his decision. He accepted PW1's evidence.

6. The Appellant gave evidence to the effect that he was wanted by Mongkok Police Station in respect of one case. That morning he was due to meet his friend called Alex whom he met twice before in Tsimshatsui bars. He saw a police vehicle coming. He was scared and went to the staircase of 9A Humphreys Road to hide. The learned Magistrate rejected his evidence on the basis that the chances of seeing police in busy streets in Tsimshatsui is much higher, there is no reason why he should avoid police on that morning.

7. With respect I cannot see the logic in his reasoning. The chances of being noticed by police in an early morning when there were very few pedestrians would certainly be much higher than when one is mixed in a crowd in a busy street. His evaluation of this piece of evidence is faulty.

8. Because of the confusing evidence of PW1, the reason for rejecting the evidence of the Appellant couple with the fact that no house breaking instrument was found, in my judgment the conviction is unsafe. The appeal is therefore allowed, the conviction quashed and sentence set aside.