HKSAR v. CHAN YEE LAP

CACC 30/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 30 OF 2013

(ON APPEAL FROM DCCC NO 443 OF 2012)

____________________

____________________

J U D G M E N T

____________________

1.  The applicant seeks leave to appeal against conviction and leave to appeal against sentence out of time.

2.  The applicant was convicted after trial by District Court Judge S.D’Almada Remedios on 12 October 2012 of a charge of burglary, Charge 2, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, and a charge of aiding and abetting or counselling or procuring the handling of stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210, and section 89 of the Criminal Procedure Ordinance, Cap 221.  That was Charge 5.

3.  On arraignment on 13 September 2012, the applicant had pleaded guilty to a charge of burglary of restaurant premises committed on a day between 22 and 25 January 2012.  That was immediately before the period alleged in Charge 2, namely 26 and 27 January 2012.  The restaurant burglary was Charge 1.  Also he pleaded guilty to a charge of possession of poison, contrary to section 23(1) and 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138.  That is Charge 3.

4.  The charge of burglary alleged that on 26 and 27 January 2012, together with another person, the applicant had entered premises known as Ming Kee Recycle Shop in Shun Ning Road in Sham Shui Po and had stolen various items of copper, trolleys and coin.  That was Charge 2.

5.  The charge of handling stolen goods alleged that on 6 February 2012, the applicant had counselled or procured Lui Man Kit to handle stolen items of copper.  Those were items stolen in the burglary of Ming Kee.

6.  On 8 January 2013, the judge sentenced the applicant to a total of 4 years’ imprisonment.  The individual sentences of imprisonment were as follows:

Charge 1, 24 months’ imprisonment;

Charge 2, 36 months’ imprisonment, 15 months’ imprisonment of which was ordered to be served consecutively to Charge 1;

Charge 3, 14 days’ imprisonment; and

Charge 5, 24 months’ imprisonment, 9 months’ imprisonment of which was to be served consecutively to Charge 1.

Accordingly, the total sentence of imprisonment imposed on the applicant was 4 years.

7.  In his homemade grounds of appeal against conviction, the applicant relies on the following submissions:

(1) The judge wrongly relied on CCTV footage in which the date and time of the recordings and the authenticity of the film was unproved.  Further, the judge had erred in failing to note that the clothing seized from the applicant was different from that worn by the suspect as depicted in the CCTV footage.

(2) The judge reversed the burden of proof in finding that the applicant had failed to give a credible explanation for his possession of stolen property. 

(3) Judicial interventions during the trial indicated bias against the applicant.

(4) The judge erred in accepting the evidence of the proprietor of Ming Kee Recycle Shop, Ms Heong, PW4, of her identification of stolen copper. 

(5) The judge erred in having recourse to the doctrine of recent possession in respect of the property found in the possession of the applicant, given that the applicant was a recycling operator.

(6) The judge erred in failing to take into account the discrepancy between the amount of stolen property and that recovered.

(7) The judge erred in convicting the applicant of the offence of burglary rather than handling stolen goods.

8.  In oral submissions today, the applicant has added an eighth ground.  He asserts that the property the subject of Charge 5 was not identified by Ms Heong as being stolen property.

9.  In his application for leave to appeal against sentence, the applicant advanced no explanation for the fact that the application was out of time and not filed with the court until 8 May 2013.

10.                     In his grounds of appeal against sentence, the applicant submits that the judge erred in determining on the basis of his criminal record that an enhanced starting point for sentence for burglary was appropriate.  In the event, the judge enhanced the sentence imposed for the two charges of burglary from the usual starting point of 30 months’ imprisonment to 36 months’ imprisonment.

11.  It was the prosecution case that during the Lunar New Year holiday, 22 to 27 January 2012, two premises, a restaurant - that is Charge 1 - and a recycling shop - that is Charge 2 - located near to one another were burgled.  Amongst other property that was stolen were bags of coin from each of the premises.  A large quantity of copper and wire was stolen from the recycling shop.

12.  On 29 January 2013, the applicant was arrested by the police in the act of moving copper from a shop onto a lorry.  The shop is located nearby to the recycling shop.  60 bags of copper were found in the shop, together with three trolleys. Ms Heong, one of the proprietors of the recycling shop, identified the property as belonging to the recycling shop. 

13.  Bags of coins contained in plastic bags bearing the name of the restaurant were found in the applicant’s home.  Some of them were identified by Ms Heong as property stolen from the recycling shop.

14.  Removal of some of the property from the recycling shop was captured on CCTV.  It depicted two men using trolleys to remove property.

15.  Following his arrest, the applicant was detained in Lai Chi Kok Reception Centre.  A visit to him on the morning of 6 February 2012 by the 2nd defendant at trial was video, but not audio, taped.  It depicted the applicant pointing out a sketch to the 2nd defendant and apparently addressing him.  In the afternoon of that day, the 2nd defendant was arrested in the act of moving 30 bags of copper from an alleyway.  Ms Heong identified some of that property as stolen from the recycling shop.

16.  The applicant did not give or call evidence at the trial.  He relied on some of the answers that he had given in a video-recorded interview with the police that had been adduced in the prosecution case.  He denied participating in the burglary of the recycling shop or counselling and procuring the 2nd defendant to remove the stolen property.  He said that the copper that was being loaded onto a lorry from his shop at the time of his arrest had been sold to him by the person who had successfully fled when the applicant was arrested by the police.

A. Consideration of the Grounds of Appeal

17.  The judge did not rely on the CCTV as evidence of the date of the images depicted therein.  She said so specifically at paragraph 84 of the reasons for verdict. Although the judge found that there was a similarity of haircut, style and build between the applicant and the person depicted in the video, she stated specifically at paragraph 105:

“I am not drawing any conclusion from the CCTV images that it is D1.”

The judge rejected - paragraphs 101 and 100 - the assertions of the applicant in his out of court record of interview that he had purchased the goods, the copper and so on.  By contrast, she accepted his admission he was in possession of the copper on 27 January 2012. From that, she concluded that the discovery of the copper in the possession of the applicant on 29 January 2012, the date on which Ms Heong discovered the theft, meant that the applicant was in possession of goods recently stolen.  Having rejected his explanation for how he came to be in possession of the stolen property, she inferred that he had committed the burglary of the recycling shop.  That is at paragraph 104.

18.  Clearly, in all the circumstances, the judge was entitled to have relied on the applicant’s possession of the recently stolen copper.  Having regard to her rejection of such application as the applicant offered in the record of interview, that permitted her to draw the irresistible inference that he had committed the burglary of the recycle shop.  The force of the inference was all the greater having regard to the nature of the stolen goods, namely hundreds, if not thousands, of pounds of copper.

19.  In the context of the applicant’s submissions that the judge had interrupted his counsel, in particular his closing speech, in a manner that demonstrated bias, it is to be observed that no request has been made for the preparation of any transcript to illustrate or evidence the point.  Nevertheless, I have listened to part of the audio tape of the closing submissions of counsel for the applicant.  There is available in the court file written submissions by counsel which he amplified in his oral address.  It follows that the judge was aware in advance of the range of points that counsel sought to make.

20.  It is the case that there were regular interventions by the judge in which she raised matters relevant to submissions made by counsel.  For his part, he took the opportunity to respond, and amplified the point that he sought to make.  At no stage did counsel indicate in any way that he objected to the interruption. Indeed, as one might expect, he took the opportunity where necessary to provide answers to concerns that the judge expressed.  Throughout, the judicial interventions were measured and calm, albeit on occasions forceful.  At no stage was there any hint of bias.

21.  In her evidence, Ms Heong identified the stolen copper bag by bag by reference to photographs.  However, earlier on, on 29 January 2012, she had identified the stolen copper and a trolley at the place at which the police had interrupted the loading operation and arrested the applicant, namely 456 Castle Peak Road.  Similarly, when the police had arrested the 2nd defendant on 6 February 2012, she had identified some of the copper in his possession as having been stolen from her.

22.  The judge noted that in her evidence, while she was able to identify some of the property in the photograph as having been stolen from her premises, other property she could not so identify.  The judge condescended to detailing the reasons that the witness gave for the identification of the property in each of the photographs.  One basis for her identification was that she had sewn up the ends of some of the bags depicted in the photograph.  She recognised her own stitching.  One bag she recognised from the fact that the copper had been tied together with black tubing by a customer.

23.  The judge stated that she accepted the witness’ identification of the bags that she had sewn up herself.  Similarly, although the style of some of the other bags was of common nature, the judge said that in the overall context, the method of packing the contents of the bag, she was satisfied of the witness’ identification.  The judge noted that the CCTV film showed bags of a description that the witness had identified on trolleys being wheeled away from the shop.

24.  Having noted that the witness had not recognised all of the recovered property, the judge determined her to be an honest and reliable witness, finding that she was correct in her identification of the copper and the bags of copper and the trolley.

25.  It is clear that the evidence of identification of the property by the witness was led carefully and comprehensively.  Similarly, the judge analysed that evidence with considerable care.

26.  The judge found - paragraph 87 - that it was not unreasonable that Ms Heong was unable to recall exactly what property had been stolen and its weight, observing that she did not keep records of her inventory.

27.  The applicant’s contention that whilst there was evidence to sustain a conviction for the offence of handling stolen goods, there was no such basis for his conviction of burglary, is without merit.  It is to be observed that the stolen property recovered from the applicant and identified by Ms Heong included not only the valuable copper, but also a trolley.  As the CCTV film depicted and as the judge accepted, the burglars used a trolley to carry away the stolen goods.

28.  There is no merit in any of the grounds of appeal against conviction.  Accordingly, the applicant’s application for leave to appeal against conviction is refused.

29.  The single issue taken by the applicant in respect of his application for leave to appeal against sentence out of time is that the judge erred in enhancing the starting point for sentence from 30 months to 36 months in light of his criminal record.

30.  Prior to being sentenced for these offences, the applicant had been sentenced by the court following his conviction on no fewer than 13 occasions in the period 1983 to 2009.  Almost all of those offences were offences with an element of dishonesty.  In 1987 he was sentenced to 3 years’ imprisonment on each of two charges of robbery; in 1992, for another offence of robbery, he was sentenced to 5 years’ imprisonment; in 1998 he was sentenced to 8 years’ imprisonment for yet another robbery.  Of his convictions in the years leading up to these offences, it is to be noted that in 2005 he was convicted of handling stolen goods and sentenced to 6 months’ imprisonment; in 2009 he was sentenced to 10 months’ imprisonment for an offence of going equipped to steal; in the same year, he was sentenced to 20 months’ imprisonment for handling stolen goods and 16 months’ imprisonment for two charges of obtaining property by deception, which resulted in a total sentence of 30 months’ imprisonment.

31.  On any view, the applicant has been a lifelong professional criminal.  It is fair to say that his criminal record suggests that he has been spectacularly unsuccessful in that career.  The judge was perfectly entitled to take the view that it was appropriate to have regard to that record when determining the appropriate sentence to impose upon the applicant for his commission of these offences of burglary.  The sentences imposed upon the applicant, both individual and in total, were entirely appropriate.

32.  The applicant has advanced no reasons why his application was made more than three months out of time.

33.  In those circumstances, in particular having regard to the fact that the application is utterly bereft of merit, the application for leave to appeal against sentence is refused.