HKSAR v, HOSSAIN MD EMRAN

CACC 279/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 279 OF 2011

(ON APPEAL FROM DCCC NO. 283 OF 2011)

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1. On 14 July 2011, the appellant was convicted after trial in the District Court before Judge Stanley Chan of a single charge of burglary.  The building said to have been burgled was a church. The applicant was sentenced to two years and six months’ imprisonment.  

2. The applicant sought leave to appeal both his conviction and sentence.

3. At trial, the judge found that the applicant had entered the grounds of the church as a trespasser with intent to steal copper wiring from the air conditioning units situated on the roof of the church.  The applicant had put a ladder against a wall of the building and by that means had gained access to the roof where he removed a quantity of copper wiring from the air conditioning units.  He had however been spotted and, when he came down to the ground, was apprehended.

4. S. 11(1)(b) of the Theft Ordinance, Cap 210, directs that a person commits burglary if –

“having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it…”

5. Before us, the single issue was whether, in gaining access to the roof in order to steal the copper wiring, the applicant had ‘entered’ the building which housed the church and its various facilities.

6. In convicting the applicant, the trial judge was satisfied that, by climbing onto the flat roof of the church building where the air-conditioning units were located, the applicant had ‘entered’ the building. We came to a different view.  On the evidence, we were satisfied that the applicant, by scaling the outside wall of the building and climbing onto the flat roof, had at no time ‘entered’ the building or any part of it.

7. Accordingly, we granted the application for leave to appeal against conviction and sentence.  Treating the application as the appeal itself, we quashed the conviction of burglary and set aside the sentence of two years and six months, substituting a conviction of theft and imposing a sentence of 15 months’ imprisonment.

8. We said that we would give our reasons later and do so now.

The facts

9. On the afternoon of 26 January 2011, the applicant entered the grounds of the Ling Liang Church in Kowloon.  The grounds were protected by a wall but there was a gate which allowed access.

10. When he entered the grounds through the gate, the applicant was carrying a bag of tools and a ladder.

11. The applicant placed the ladder against the outside wall of the church building and was thereby able to climb up to the flat roof of the building.  Once on the roof, the applicant set about removing copper wiring from the air-conditioning units that were placed there.

12. While so engaged, the applicant was spotted by two employees of the church.  They went to the ground floor where they saw the applicant climbing down from the roof and jumping to the ground.  They were able to prevent him from leaving until the police were called.

13. At the scene and later at the police station, the applicant denied stealing the copper wiring.  He asserted that he had been asked by a third party to dismantle the air-conditioning units on the roof and that he was doing no more than attending to that work.  That defence was rejected at trial and not pursued before us.

Had the applicant entered the building?

14. It was accepted at trial that at no time had the applicant entered inside the building that housed the church and its various facilities.  He had not entered any door into the building nor climbed (fully or partially) through any window or other aperture.  The judge, however, was satisfied that the flat roof of the building (described by him as ‘the podium’) had to be taken to be part of the building and that, in gaining access to that part of the building, the applicant had thereby ‘entered’ the building.

15. In our view, the issue, however, was not whether the roof formed part of the building, clearly it did, but whether, in climbing up the outside of the building and on to the roof, the applicant had thereby ‘entered’ the building.

16. The language of s. 11(1) of the Ordinance is expressed in ordinary English.  The section speaks of a person who ‘enters any building or part of a building’ and of a person ‘having entered any building or part of a building’.  The meaning must be construed according to those clear words.  That meaning, we think, is clear enough: a person who ‘enters’ a building must make an entry into that building.  He does not enter into the building if he climbs an outside wall and by that means is able to climb on to the roof.  That exercise involves no ingress; the perpetrator remains always on the outside of the building.

17. Assistance as to the meaning is to be found by having regard to the mischief inherent in the crime of burglary.  That mischief consists of the invasion of premises.  Lord Bingham CJ, in Brewster (Alex Edward) [1998] 1 Cr. App. R. (S) 181, in speaking of domestic burglary, observed:

“The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to know that the burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar.” [Emphasis added]

18. The principle that there must be some entry into a building before there can be the commission of the offence of burglary has been set by the English Court of Appeal in R v Brown [1985] EWCA Crim 3; summarized in [1985] Crim LR 212, a judgment looking to the meaning of the word ‘enter’ in s. 9(1) of the Theft Act 1968.  S. 11(1) of the Hong Kong Ordinance is drawn in exact terms from s. 9(1) of the 1968 Act.

19. In Brown, a witness, having heard the sound of breaking glass, saw the appellant standing in front of a broken shop window with the top half of his body inside the window as though he were rummaging inside it.  The appellant appealed on the grounds that he had not entered the building as his body was never entirely within it.  It was held, dismissing the appeal, that the word ‘enter’ did not require that the whole of a defendant’s body be within a building.  It was sufficient if the entry was ‘effective’, that being a matter of fact to be determined by the jury.  In giving the judgment of the Court, Watkins LJ said:

“It seems to us to be an outstanding proposition that a person can go along the street, break a shop window, put his hand within and steal goods and not be held to have entered the shop as a trespasser.”

20. In the case before us, the air-conditioning units from which the applicant stole the copper wire were placed on the outside of the building on the roof.  The applicant scaled an outside wall in order to get on to that roof.  He remained always on the outside of the building.  At no time did he make any form of effective entry into the building.  He did not therefore commit the crime of burglary.

Sentencing for theft

21. Having quashed the conviction for burglary and set aside the sentence of two years and six months’ imprisonment, we substituted it with a conviction for theft.  In determining an appropriate sentence for that conviction, we took into account the following factors.

22. First, the conviction for theft was less serious than the conviction for burglary and deserving therefore of a materially lesser sentence.

23. Second, as the judge at first instance recognised, while the applicant had been armed with tools, the value of the wiring that he was able to steal from the air-conditioning units was insignificant.  The greater cost to the church no doubt was the cost of repairing the air-conditioning units.

24. Third, the applicant, who had come to Hong Kong from Bangladesh a year earlier, was an asylum seeker.  He was a man in his mid-30s with no known criminal record.

25. In all the circumstances, we considered a sentence of 15 months’ imprisonment to be appropriate.

Mr Jonathan Acton-Bond and Ms Vennie Chiu, instructed by Massie & Clement, assigned by Director of Legal Aid, for the Applicant

Mr Alex Lee, SADPP of the Department of Justice, for the Respondent