HKSAR v. CHUNG CHEUK PANG

CACC 104/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 104 OF 2016

(ON APPEAL FROM DCCC NO. 998 OF 2015)

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J U D G M E N T

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1.  The applicant pleaded not guilty to a charge of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200 (Charge 1), and a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance (Charge 2). On 20 April 2016, following a trial before HH Judge Douglas Yau (“the judge”) in the District Court, the applicant was convicted of both offences and sentenced to 15 months’ imprisonment on Charge 1 and 12 months’ imprisonment on Charge 2. The judge ordered that 6 months of the sentence imposed in respect of Charge 2 should be served consecutively to that imposed on Charge 1, resulting in a total sentence of 21 months’ imprisonment.

2.  By way of a Notice of Application for leave to appeal against conviction and sentence (“Form XI”) filed on 26 April 2016, the applicant seeks leave to appeal against both his conviction and sentence.  On 14 June 2016, the applicant was granted bail pending his appeal by Pang JA.  Although bail was granted on the merits ground, the judge was also concerned that the applicant’s earliest date for release will be February 2017.

Prosecution case

3.  Ms Wong[1] was the occupant of Room 2204, Kwai On House, Kwai Fong Estate, Kwai Chung (“Room 2204”).  The prosecution alleged that, on 8 July 2015 at about 00:30 hours, while Ms Wong was inside Room 2204, she heard the sound of something falling off her shoe rack which was placed between the wooden door to her unit and the outer metal gate.  She then looked through the spy-hole of her door and found that a male (later known as the applicant) was using a long plastic object to poke at the lock of her metal gate.  Ms Wong therefore opened the door to confront the suspect who immediately dropped the plastic object on the floor and fled.  A report was subsequently made to the police who successfully obtained the suspect’s image from the building’s CCTV recording.

4.  On 24 September 2015 at 22:27 hours, a team of police officers[2] conducting a licensing check at a cyber café in Kwai Chung, recognised and arrested the applicant as the suspect of the offence in Charge 1.

5.  Following the issuance of a “Notice to persons in police custody or involved in police enquiries” (“Pol 153”), on which the applicant signed to acknowledge his understanding of the contents, he was cautioned and questioned by the police, whereupon he admitted attempting to steal a pair of women’s shoes from outside Room 2204 at about 00:30 hours on 8 July 2015 using a long grey plastic ruler.  The applicant then further admitted stealing a pair of women’s shoes from another unit of the same building, namely Room 2318, Kwai On House, Kwai Fong Estate, Kwai Chung (“Room 2318”), on the afternoon of 24 September 2015.

6.  Later that day, the police officers brought the applicant up to Room 2318, where he pointed to an umbrella hanging outside the unit as the tool he had used to steal the pair of shoes, the subject matter of Charge 2.  Ms Ho[3], the occupant of Room 2318, had returned home from work on 24 September 2015 to find that a pair of shoes costing $450, which had originally been placed behind her metal gate the previous evening, were missing.

7.  The above verbal admissions were subsequently recorded in a police notebook, which the applicant duly signed.

8.  In a subsequent video-recorded interview, the applicant confirmed his earlier admissions in respect of the two offences.

Defence case

9.  Although the applicant elected not to testify or call any defence witness on the special issue of voluntariness, he did give evidence on the general issue.

10.  The applicant contended that the admissions were unlawfully obtained from him by threats and inducements.  It was also said that the applicant had not been cautioned at the scene, nor issued with any Pol 153; further, that he had been coached by police officers as to what he should say in the video-recorded interview.

11.  In giving evidence on the general issue, the applicant said that he was not allowed to read the contents of the police notebook and therefore did not know what he was signing; nevertheless, he proceeded to sign on it because he trusted the police officers and feared being beaten up by them.[4]  Having been assured that it was a minor matter, the applicant decided to cooperate with the police officers by repeating what he had been taught to say in the video-recorded interview, which was in fact untrue, in the hope of being released on police bail afterwards.[5]

Reasons for Verdict

12.  The judge set out at some length the evidence of each prosecution witness.  He found all of them to be truthful witnesses, corroborative of one another and unshaken in cross-examination.[6]  The judge also found that the contested admissions in the police notebook and video-recorded interview, to which he attached full weight[7], were voluntarily made and accurate.[8]

13.  The judge found that the applicant was neither an honest nor a reliable witness and rejected his evidence.[9]  In rejecting his testimony, the judge found, inter alia, that:

(a)   It was inherently improbable that the applicant would still trust the police officers had they genuinely threatened to beat him up[10];

(b)   Based on the demeanour of the applicant in the witness box, he appeared to be an articulate and intelligent person and not someone easily intimidated[11]; and

(c)   Instead of appearing to have been coached into giving untrue evidence, the applicant seemed fluent and firm in answering questions in the video-recorded interview.[12]

14.  Of the credibility of the police witnesses, the judge made the following specific findings, which would appear to have been the findings which have prompted the applicant’s complaint in this application:

“Finding on whether the Police officers framed the defendant

114. The Police officers are experienced officers, they would be risking their career and possible criminal sanctions for what the defendant alleged them to have done. Even if the defendant is convicted for the two offences, it is unlikely that the officers will gain much from the convictions in terms of career prospect.

115. The officers were at the cyber café together with officers from other sections of the Police force and they were conducting a licensing check on the premises. It is undisputed that the defendant did reside at Room 1322 of Kwai On House at the time of the two offences, as well as when he was picked out by the Police officers on 25 September 2015. There is no suggestion whatsoever from the defence of previous grudges held against the defendant by the Police. There was no suggestion that the officers’ encounter with the defendant was not by mere chance.

116. I find it inherently improbable that the Police officers would go to so much trouble and to put themselves under so much risk just to frame the defendant for the offence of stealing (attempting to steal in relation to charge 1) two pairs of shoes.”[13]

Mitigation

15.  In mitigation, it was submitted on the applicant’s behalf that he was 24 years old and had a job, that the subject matter of Charge 2 only had a small resale value, and that he had not entered into the living/sleeping area of the domestic premises concerned.

Reasons for Sentence

16.  Whilst acknowledging that the established guideline for a burglary of domestic premises was 3 years’ imprisonment after trial, the judge considered that:

“Sentencing must be sensitive to the facts of each case. I find that if I followed the sentencing guidelines rigidly and adopt a 3 year starting point for what the defendant had done would be too severe a punishment in the circumstances.”[14]

17.  The judge referred to HKSAR v Khan Asif[15], where the Court considered a starting point of 18 months’ imprisonment (instead of the customary starting point of 2½ years’ imprisonment for a burglary of non-domestic premises) to be appropriate on the primary basis that the facts involved a minimal entry into non-domestic premises[16].  In that case, the applicant had been lifted up to a window by his accomplice, popped his head through the window for five to six seconds, looked down at the accomplice and then did the same thing again, before being lowered by the accomplice and leaving the scene without stealing anything.

18.  The judge noted that the applicant here “did more than just popping in to see what was there to steal, he found the long pole and the umbrella nearby and then used them to enter the premises to try to hook out the shoes”, which facts were “arguably slightly more serious” than those in Khan Asif.[17] Nevertheless, the judge considered that the present burglaries were relatively minor in nature.

19.  The judge passed the sentences concerned, saying that he had adopted a slightly lower starting point in respect of Charge 2 (namely, 3 months less than the starting point of 15 months adopted for Charge 1) because, unlike Charge 1, there had been no confrontation with the occupant of the burgled premises, who was seemingly not at home at the time.

Grounds of appeal against conviction

20.  In his homemade grounds of appeal in Form XI, the applicant complains that the judge wrongly rejected his evidence, believing that the police witnesses would have had no reason to frame him up.

Grounds of appeal against sentence

21.  The applicant has not stated any grounds in relation to his appeal against sentence. Nor has he said anything in respect of his application for leave to appeal against sentence before me today.

Respondent’s submissions (re: conviction)

22.  Mr Vincent Lee PP, for the respondent, submitted that, of the judge’s evaluation of the evidence as a whole, the possible motive/reason for the police officers to frame the applicant up only formed one aspect of his consideration (as opposed to the sole consideration), and was specifically relevant to the defence put forward at trial.

23.  In relation to paragraphs 114 to 116 of the Reasons for Verdict (paragraph 14 supra), whilst accepting that it was not desirable for the judge to have said what he did in those paragraphs, Mr Lee contended that there was nothing to show that the judge had wrongly preferred the credibility of the police officers by reason of their status and occupation qua police officers.[18]  He relied on HKSAR v Leung Ka Yin(unrep., CACC 225/1999, 18 February 2000), where Woo JA (as he then was), in refusing leave to appeal against conviction on much the same ground as the present case, said (at paragraph 16)[19]:

“In the present case, which was a trial before a District Judge alone without a jury, the above cited authorities are not particularly apt, because he is a professional judge, most unlikely to think that the police are less likely to lie than other witnesses. His position must be treated differently from that of a jury who have little legal training or experience in dealing with testimonies of witnesses.”

Respondent’s submissions (re: sentence)

24.  Mr Lee submitted that the judge had generously adjusted the starting point downwards by three months on Charge 2 when compared with Charge 1.  He further argued that, since the two offences took place on different dates at different premises, the judge was not wrong in principle to impose a partially consecutive sentence.  In any event, the resulting overall sentence of 21 months’ imprisonment after trial for two offences of burglary of domestic premises could only be viewed as lenient.

Discussion

25.  My task in this application is to determine whether there exist reasonably arguable grounds of appeal against either conviction or sentence on the papers before me.

26.  In Lee Fuk Hing v HKSAR [2005] 1 HKLRD 349, at 357G-358B, the Court of Final Appeal approved of, and endorsed, the guidance given by this Court to judges directing juries in HKSAR v Leung Ka Yin, namely:

“(1) that it is desirable for a judge not to mention the consequences of a witness, including a police witness, fabricating evidence, such as his being liable to be prosecuted for a criminal offence or a serious criminal offence, or liable to lose his job;

(2) that a trial judge must not indicate to the jury that the police as a category or otherwise are likely to fabricate evidence, or are more unlikely than other witnesses to fabricate evidence; and

(3)      that words which may lead the jury to believe that the police are less likely to tell lies, or give any undue weight to police evidence, or not to consider defence allegations in an impartial manner must be avoided.”

27.  It seems to me to be reasonably arguable that, in a case which, as the judge said, “rests entirely on the truth of the contents of the (applicant’s) admissions made under caution”[20], and therefore which depended solely upon the credibility of police officers who had obtained those admissions, the findings of the judge in para’s 114 and 116 in particular of his Reasons for Verdict run counter to the guidance approved by the Court of Final Appeal.

28.  Whether or not, as Mr Lee argues they did not, the status and occupation of the police officers actually formed any part of his reasoning, and whether or not they impinged on the impartial and fair consideration of the credibility of all witnesses, in a case which did not involve a jury, will be matters for the Court’s consideration in due course.  For present purposes, I am satisfied that the applicant’s complaint forms the basis of a reasonably arguable ground of appeal against conviction and I accordingly grant leave to appeal on that ground.

29.  I am not prepared to grant leave to appeal in relation to sentence.  I see no reasonable argument that for two different burglaries on different days of different premises, the overall sentence of 21 months’ imprisonment was manifestly excessive.  I agree with Mr Lee that the sentence cannot be said to be manifestly excessive, particularly where the judge has already reduced the starting point for domestic burglary in respect of both charges to reflect the unusual facts of the two offences.  Accordingly, I refuse leave to appeal against sentence.

30.  I should advise the applicant of his right to renew his application for leave to appeal against sentence to the Court of Appeal, notwithstanding that I have refused him leave on that application today.  However, I should also warn him of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of his application for leave to appeal against sentence.

31.  Having granted the applicant leave to appeal against conviction, I shall grant him a certificate for legal aid pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221, in respect of his appeal against conviction only.