THE HKSAR v. WAN SAI-LEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

-----------------

JUDGMENT

-----------------

Nazareth V-P (giving the judgment of the Court):

1. On 27 January 1998 the applicant, Wan Sai-leung, along with two others was charged in the District Court before Deputy Judge Livesey on three charges. The first charge was of burglary contrary to s. 11(1)(b) and (4) of the Theft Ordinance (Cap. 210). The particulars were that Wan Sai-leung (D1), Ho ka-lok (D2) and Yip Wai-sum (D3) on or about 13 August 1997 at Tuen Mun, having entered as trespassers a part of a building known as Wah Kee Poultry Stall, shop No. 13, Yau Qi Estate Market, stole therein cash HK$2,000.

2. The second charge was of going equipped for stealing, contrary to s.27(1) of the Theft Ordinance (Cap. 210). It was against only D1 and D2. The particulars being that on or about 20 August 1997, outside the Ground Floor, Wu Pik House. Wu King Estate, Tuen Mun, in Hong Kong, not being at their place of abode, they had with them an article for use in connection with burglary, namely a pair of pliers.

3. The third charge was of conspiracy to commit burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance (Cap. 210) and s.159A of the Crimes Ordinance (Cap. 200). It was also against the first two defendants. The particulars were that on or about 20 August 1997, outside the Ground Floor, Wu Pik House, Wu King Estate, Tuen Mun, in Hong Kong, they conspired together to commit burglary.

4. The judge found all three defendants guilty on the first charge and D1 and D2 guilty on the second charge but not guilty on the third charge. She sentenced the applicant, D1, to imprisonment for 12 months on the first charge, and to six months on the second charge, the sentences to run concurrently but consecutive to a term of imprisonment that the applicant was then still serving.

5. The applicant now seeks leave to appeal against conviction.

6. The facts shortly stated are these. At 0056 hours on 20 August 1997, PC 50561 (PW1) and PC 34709 (PW2) were patrolling at Butterfly Estate in Tuen Mun when they found D1 and D2 acting suspiciously. They stopped them. PW1 searched D1 and PW2 searched D2. D2 was found holding behind his back a pair of pliers of about 18 inches long which were covered by his upper garment. They were then questioned by PW1 and PW2 respectively. Both of them said they were waiting for D3. At that point D3 was seen driving a private car which arrived at the scene. PC 33627 (PW3) who had arrived to give assistance intercepted D3.

7. At the scene of arrest, D1 and D2 at first gave exculpatory statements. Subsequently while being questioned by PW1 under caution, D1 said that it was D2 and D3 who asked him to do the job. D2 said it was D1 who told him to go to burgle and that he had no idea where they would go. D3 claimed that he went there merely to pick up D1 and D2 for a joyride.

8. During the interview under caution, D1 revealed that on or about 13 August 1997 the three of them had gone to burgle a market stall at Yau Oi Estate. As a result, D1 came to lead DPC48421 (PW4) and a party of police to identify the stall at Yau Oi Estate Market on the morning of 20 August 1997. He was subsequently interviewed by DPC46493(PW5) on 21 August 1997. Under caution for the offence of burglary, D1 described in detail how he had prised open the lock of the metal gate of the stall and entered to steal the money inside the drawer of the stall and share it with D2 and D3.

9. D2 was first interviewed by PW2 and subsequently by PW5 in the presence of his guardian. Under caution, he admitted that he and D3 had acted as lookouts at Yau Oi Estate Market on 13 August 1997 between 3 o'clock to 4 o'clock in the morning. He was given a share of $200 of the stolen money.

10. When interviewed by PC46991(PW6) on 21 August 1997, D3 likewise admitted under caution that he had participated in the burglary of the stall at Yau Oi Estate Market as a lookout and that he had taken $300 in coins from D1 as his share

11. The investigation revealed that Wah Kee Poultry Stall at Shop No. 13, Yau Oi Estate Market was burgled during the night of 12 August 1997. At about 6.30 am on 13th morning when the stall holder, Chan Cheung (PW7) returned to the stall he found that the padlock of the iron grille was prized open and damaged and that cash of about $2,000 was stolen.

12. When D1 was first interviewed by PW1 in relation to the second charge, he admitted under caution that D2 had arranged to meet with him that night intending to burgle together with D3. Prior to their arrest, he and D2 went to a meter room on the 4th Floor of Wu Poon House to get the pair of pliers which he had bought and kept there for use in burglary.

13. When he was further interviewed by PW5, D1 admitted that on the night of their arrest, he gave the pair of pliers to D2 to carry and intended to use it for burglary. He and D2 had not discussed where to burgle but intended to go around to find shops which could be easily broken into.

14. D2 admitted that the pair of pliers was given to him by D1 who told him that it was to be used for burglary and that they would go to burgle after taking a snack on the night of their arrest.

15. The Deputy Judge carefully considered the evidence after a trial that went into a hearing of three days. All three defendants were represented each by different counsel. After considering the evidence and the submissions, the Deputy Judge found the three defendants guilty on the first count and the 2nd and 3rd defendants on the second count, and imposed the sentences mentioned. The applicant now seeks leave to appeal against conviction.

16. In his notice of appeal he did not give any grounds at all. That in a way was understandable as he appears to have intended to apply for legal aid and to leave that matter to his counsel. He asked that counsel who represented him below be assigned to his defence. Subsequently, a legal aid certificate was granted to him but later withdrawn. In consequence the applicant appears before us in person. However, he has produced the usual form counsel in legally aided cases are required to complete on the conclusion of particular cases, recording whether there are any reasonable grounds for appeal. His counsel noted three grounds. The applicant says he wishes to rely upon these grounds. He says he has no others.

17. We begin then by addressing the first ground which is stated in this way:

"The learned Deputy Judge erred in accepting PW2 as an honest and reliable witness having failed sufficiently to consider the various discrepancies in his evidence and having failed to consider that PW2 might be biased towards the Defendant at the time PW2 arrested and took cautioned statements from the Defendant.

There were discrepancies. These are mentioned by the judge in her reasons for verdict and in particular were referred to in the following way at p.4 of those reasons.

"There are discrepancies in the evidence of PW2 and 3, inter alia, as to the manner and place of interception, the manner in which D1 and D2 were treated and questioned at the scene, and also there was a marked discrepancy as to time of interception until PW2 was recalled to explain how that particular discrepancy occurred. PW2 had to be recalled twice in relation to problems in his evidence."

Having considered those discrepancies and observing that they were all of a minor nature and can be explained and understood by considering the whole incident and using commonsense as she put it, the judge came to the conclusion that PW2 was an honest witness and she accepted his evidence.

18. Plainly, the judge gave careful consideration to the discrepancies. Having looked at her reasons, we can see no reason to fault that conclusion.

19. As to the second part of that first ground (that PW2 might have been biased against the defendant at the time PW2 arrested and took cautioned statements from him) we are not sure we understand this ground; nor can Ms Ko, representing the SAR, assist us in that regard. We observe that it is suggested only that PW2 might be biased. Certainly, we can see nothing to indicate that PW2 was biased against the defendant. It seems to us that the judge exercised due care in addressing PW2's evidence. We reject the first ground.

20. The second ground to which we now turn is that -

"The learned Deputy Judge failed to sufficiently to consider the oppression on the Defendant as revealed in the prosecution case."

Again it is not denied that the judge considered this matter. Indeed, she referred in particular to the long hours during which D1 and D2 were interviewed. She noted that this was because the three defendants were intercepted at 0055 hours and the interviews went on until early afternoon with a fairly long break for lunch. But having regard to the time at which the three defendants were intercepted, that in fact they were not going to bed and that the matter had to be dealt with after examining the relevant circumstances which did not immediately become clear enough, she concluded that there was no oppression.

21. The applicant adds that he was also told by one of the policemen to admit the offence as soon as he could so that he could be given bail. This and the other related matters were also considered by the judge in the round. She rejected the suggestion of oppression and again we can find no good reason to fault her conclusion.

22. The third ground is this:

"In rejecting the defence that D1 and D2 could not have concocted an innocent explanation when they were first interrogated by police at the scene, the learned Deputy. Judge's finding to the contrary was not in accordance with the evidence."

The implication here appears to be that the 1st and 2nd defendants at the scene were intercepted so quickly by the police that they had no time to concoct an innocent explanation. The judge dealt with this in her penultimate paragraph at p.7 of her reasons. She said this:

"It is also commented upon that both D1 and D2 gave the same initial information to the police officers when first intercepted, before subsequently changing their stories. The police officers were in uniform, and as was made clear to me both defendants were known to at least PW2. There was ample time before interception for D1 and D2 to agree the basic information to be given to the police if stopped. The later change of story the police say was essentially the truth."

In the face of those observations by the Deputy Judge, we find no substance in this third ground.

23. There is clearly no merit in the three grounds. We would refuse leave to appeal against conviction.

The applicant has before us abandoned his appeal for leave to appeal against sentence.

We dismiss both applications for leave to appeal.