HKSAR v. GONZALEZ MARTINEZ JEFFERSON JOSE

CACC 272/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 272 OF 2016

(ON APPEAL FROM DCCC NO. 28 OF 2016)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  With the leave of the single judge, granted on 8 September 2017, the appellant, the 2^nd defendant at trial, appeals against his conviction on 3 August 2016, after trial before Deputy District Judge W H Ko, of a charge of burglary (Charge 1) on 26 October 2015, together with two co‑defendants, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. The 1^st defendant was convicted on his pleas of guilty to Charge 1 and of going equipped for stealing (Charge 2). The 3^rd defendant was convicted on his plea of guilty, of the alternative charge of handling stolen goods, namely a wristwatch belonging to Madam Chu (Charge 3). At the hearing we dismissed the appeal and said that we would give our reasons in due course. That, we do now.

The trial

The prosecution case

2.  No prosecution witnesses were called at trial and the evidence was adduced by way of admitted facts and witnesses’ statements. 

3.  On 26 October 2015, domestic premises at 2/F, Realfound Mansion, 30 A, Stanley Main Street, Stanley was burgled and a wristwatch, items of jewellery and cash were stolen to a total value of about $210,000.  The lock to the front door had been prised open, as had a safe in the living room and a bedside cabinet in a bedroom in which some of the stolen items were stored.  A Colombian passport in the name of the appellant was found on the floor in another bedroom in the premises.  A report of the burglary was made to the police.

4.  Madam Chu Ki Mui (PW1) and her daughter, Ms Yip Nga Man (PW2), lived at the premises.  Ms Yip had locked the door to the premises when she left at around 7:30 a.m. on 26 October 2015.  On Madam Chu’s return to the premises at about 3:20 p.m. that day, she observed that the premises had been broken into and property stolen.

5.  On 28 October 2015, a wristwatch, which Madam Chu identified on 11 November 2015 as her property and having been stolen in the burglary, was pawned by a man who produced the passport of the 3^rd defendant at trial to the pawnshop owner.

6.  The appellant, together with the 1^st and 3^rd defendants, was arrested on 28 October 2015 in Discovery Bay Plaza, Lantau Island.  Octopus cards found in the possession of the appellant and his two co‑defendants at trial were used to travel to Stanley at 12:44 hours on 26 October 2015.  The appellant had arrived in Hong Kong on 6 October 2015.

7.  In video-recorded interviews, the appellant denied having been to the burgled premises.  He said that he had met the 1^st defendant on the aeroplane in which they had travelled to Hong Kong.  They had stayed at the same hotel in Chungking Mansions.  They had come to know the 3^rd defendant, also a Colombian, in Hong Kong.  On 26 October 2015, the three of them had travelled together to Stanley and gone for a walk on the beach.  The appellant accepted that the passport which had been found in a bedroom in the premises was his passport.  He declined to answer a question as to why it had been found at that place.

8.  At around 11:50 hours on 28 October 2015, Ms Ip Sau Ping rented a single room at her Overseas Guesthouse, New Lucky House, Nathan Road in Jordan to three expatriate males.  She took photographs with her mobile telephone of the passports produced in the name of the 1^st and 3^rd defendants.^[1]  Also, she made a record in her guest registry of their names, passport numbers and the time and date that they had checked in to the guesthouse.^[2]  The third man did not produce any identification, explaining that his passport was held in the process of a visa application to the Mainland.

The defence case

9.  The appellant did not avail himself of the right to give or call evidence in the defence case.  The defence case, as advanced in submissions made on behalf of the appellant, was that there was no evidence that the burglary had been committed by more than one person and that it was a possibility that could not be excluded that the 1^st defendant might have taken the appellant’s passport to the premises at the time that he committed that offence.

Reasons for verdict

10.  Of the fact that the appellant’s passport had been found in the premises after the commission of the burglary, the judge said “the only and irresistible inference that can be drawn is that the 2^nd defendant’s passport was left when the burglary took place on 26 October 2015.” ^[3]  Then, the judge went on to determine:^[4]

“ The 2^nd defendant must have known that his passport was lost before he went with the 1^st and 3^rd defendants to the guesthouse. The passport is an important piece of identification document for a traveller when staying overseas. Yet there is no evidence showing that there was any report made to the police concerning the lost (sic) of the 2^nd defendant’s passport. The indisputable fact is that no report was made by the 2^nd defendant on 28 October 2015 as to the lost of his passport and he having specifically told the owner of the guesthouse he could not produce his passport, proceeded to go to Discovery Bay, allegedly for a walk at the beach, with the 1^st and 3^rd defendants. [Italics added.]

11.  Of the circumstances in which the appellant’s passport had come to be in a bedroom in the burgled premises, the judge said:^[5]

“ I was satisfied the only way was that he had been staying inside the bedroom of the premises and somehow left his passport there. His presence in the premises must be the time between 7:30 a.m. to 3:20 p.m. on 26 October 2015, when the burglary took place. The only and irresistible inference that can be drawn from his presence during that time inside the premises was that he was one of the persons who committed the burglary of the premises.”

12.  Earlier, the judge had determined:^[6]

“ I was satisfied on the evidence that it was the 2^nd defendant went with the 1^st and 3^rd defendants to Overseas Guesthouse at around noon time on 28 October 2015. I am also satisfied that it was the 2^nd defendant when asked for his identification document told Ms Ip that he could not produce any as his passport was used to apply for the visa for China permit.”

Subsequent application

13.  Immediately after the judge had delivered his reasons for verdict, and before mitigation began, Mr Ian Polson applied on behalf of the appellant to re‑open the case so that he could produce evidence that the appellant had made a report to the police on 26 October 2015 of the loss of his passport.  He said that the matter had been brought to the attention of District Court Judge Woodcock at an earlier hearing, in particular that in the appellant’s prisoner’s property there was a police record evidencing that report.  In response, the judge said “I cannot reopen the case after my verdict has been delivered.” ^[7]  The judge said that, in those circumstances, the remedy for the appellant was to appeal to the Court of Appeal.

Grounds of appeal against conviction

14.  In the grounds of appeal against conviction advanced on behalf of the appellant, Mr Phil Chau submitted that the judge was wrong to conclude, from the discovery of the appellant’s passport inside the burgled premises, that the appellant had committed the burglary and had left his passport at the burgled premises.  There was no evidence of how many burglars had committed the burglary and it was possible that the 1^st defendant, who admitted committing the burglary, had left the appellant’s passport at the premises.

15.  Secondly, Mr Chau submitted that the judge had erred in finding that the appellant had not reported the loss of his passport.  There was no evidence as to whether the appellant had or had not reported the loss of his passport.  So, the judge had erred in finding that it was an “undisputed fact” that no report was made by the appellant of its loss.  

The respondent’s submissions

16.  In his written submissions for the respondent, Mr Ira Lui acknowledged that the appellant had made a report at the Tsim Sha Shui Police Station of the loss of his passport at 19:36 hours on 26 October 2015.  That information was known to the prosecution and had been disclosed to the defence prior to the trial.

17.  There was no evidence before the judge as to whether or not there had been a report of the loss of his passport by the appellant.  In those circumstances, Mr Lui acknowledged that the absence of a report was not “undisputable”.  Further, Mr Lui acknowledged the failure of the appellant to report the loss of his passport “was of great importance” to the judge’s analysis of the evidence and was “practically the sole reason given for drawing adverse inference against the appellant.”  In his oral submissions, Mr Lui acknowledged that the judge’s error was material.

18.  Mr Lui submitted that in refusing the application made on behalf of the appellant to re‑open the case after delivery of the reasons for verdict, it appeared that the judge understood that he was functus officio.  If that was the case, the judge was wrong.  The judge was entitled to accede to an application to re‑open the case until the conviction and sentence had been finally recorded.[8]

19.  Mr Lui submitted that, notwithstanding his concession that the judge had reached his verdict on an incorrect factual basis, nevertheless this Court ought to invoke the ‘proviso’ and affirm the conviction on the basis that the appellant’s conviction was inevitable on a consideration of the totality of the evidence.  He said that it was appropriate to do so given that no ‘live’ witnesses had been called at the trial and all the evidence had been based either on admitted facts or on witness statements adduced into evidence pursuant to sections 65C and 65B of the Criminal Procedure Ordinance, Cap. 221 respectively.  It followed that this Court was equally well placed as was the judge to determine whether or not the only reasonable inference to be drawn from the proved primary facts was that the appellant was guilty of the burglary.

20.  Of the evidence relevant to the drawing of that inference, Mr Lui pointed to the undisputed evidence that the appellant’s passport had been found inside the premises immediately following the burglary, together with the undisputed evidence that the appellant had travelled by bus together with his co‑defendants to Stanley at 12:44 p.m. on 26 October 2015.  He pointed to the fact that Octopus cards in the possession of the appellant and his two co‑defendants had all been used on the Star Ferry at 11:58 a.m. and all had value added to the card at the same 7-11 convenience store at 15:02 p.m. that day.  Relevant to those matters was the fact that the burglary had been committed between 7:30 a.m. and 3:20 p.m. on 26 October 2015.  Further, the appellant admitted in a video recorded interview that he had been in Stanley for about two hours on that day together with his two co‑defendants.  The appellant was in the immediate vicinity of the scene of the burglary at a time at which it could have been committed.  Moreover, he was in the company of the 1^st defendant, who admitted committing the burglary, and the 3^rd defendant who admitted handling a wristwatch stolen in the burglary.

21.  Mr Lui submitted that a passport, in particular for a visitor from a foreign country to Hong Kong, was an important document not only of identification but also by which the right to be in Hong Kong could be established by the holder of the passport.  In those circumstances, it was to be inferred that the appellant had the passport with him when he visited Stanley.  On all the evidence, there was no innocent reason for the passport to have been left in the premises which were burgled.  Therefore, the only reasonable inference to be drawn was that the appellant had left the passport in the premises at the time that he had participated in the burglary of those premises.  That available inference was more safely drawn in circumstances where the accused has not supported any hypothesis which is consistent with innocence from facts with the jury perceives to be within his knowledge.[9]

A consideration of the submissions

A material error

22.  We are satisfied that Mr Lui was correct to concede that the judge was in error to have determined that “The indisputable fact is that no report was made by the 2^nd defendant on 28 October 2015 as to the lost (sic) of his passport”.  Immediately before that finding, the judge had stated correctly that there was no evidence that the loss of the appellant’s passport had been reported to the police.  More particularly, there simply was no evidence one way or the other as to that matter.  Clearly, with respect the judge was in error to make the finding referred to above.  That error was material.

Re-opening the case at trial

23.  In face of Mr Polson’s assertion on behalf of the appellant, at the conclusion of the delivery of the reasons for verdict, that the appellant “…did report the loss of his passport to Tsim Sha Tsui police station on the day they went to Stanley”[10] and his assertion that “the verdict isn’t finalised until I think you actually filed the copy” [11], the judge responded in the negative “No, I think no.  I think no.  The verdict has been finalised after I announced it and delivered it.”  Then, in face of Mr Polson’s “formal application to reopen the case so that I can introduce this evidence”, the judge said:[12]

“ I cannot reopen my case after my verdict has been delivered. It is not in the Magistrate Court that I have the power to review. I have no power to review myself.”

24.  With respect, the judge fell into error in determining that he could not re‑open the case.  The application was made immediately after the reasons for verdict had been read out and before sentence had been imposed on the appellant.  It is a well‑established rule that a court had the power to recall and vary a decision it had made until it is finally recorded.

25.  The issue was considered by the Court of Final Appeal in HKSAR v Tin’s Label Factory Ltd.[13]  Having adverted to the judgment of the Court of Appeal of England and Wales in R v Cross[14] that the perfection rule applied in a criminal appeals, Li CJ said:[15]

“ Following the decision in Cross, the perfection rule has been consistently adopted and applied by the courts in Hong Kong in criminal appeals. The Court of Appeal has held in a number of decisions that it may reconsider a decision on appeal against conviction and sentence before the order has been finally recorded. See R v Au Pui Kuen (unrep., CACC 1028/1976, 3 February 1977), R v Wong Tak Sing [1990] 1 HKC 155, R v Wong Siu Chung (unrep., CACC 571/1994, [1995] HKEC 385), Secretary for Justice v Mak Wai Hon [2000] 1 HKC 498.

The Court of Appeal has also applied the same approach in relation to the power of a District Judge to change his decision at a criminal trial.  The Judge only had the power to do so before the conviction and sentence had been finally recorded.  See HKSAR v Ho Tung Man [1997] 3 HKC 375, Secretary for Justice v Yuen Lit Ping [1999] 1 HKC 476, HKSAR v Chu Kin Yuen [2008] 1 HKLRD 405, HKSAR v Agbayani (unrep., CACC 114/2007, [2008] HKEC 496).”

26.  Given that there was no oral evidence at trial and that such evidence as was led at trial was adduced by way of admitted facts and written statements, we accept Mr Lui’s submission that we are in a position to determine whether or not the only reasonable inference to draw from the proved primary facts was that the appellant was a burglar of the premises so that, absent the judge’s flawed finding as to the lack of a report to the police of the loss of the appellant’s passport, on the undisputed evidence a conviction of the appellant for the offence of burglary was inevitable.

27.  Obviously, the finding of the appellant’s passport in a bedroom in the ransacked premises the subject of the burglary is the most important relevant undisputed primary fact.  A passport is a valuable document, most particularly to a foreigner visiting Hong Kong, who is required to produce proof of identification when asked to do so.

28.  Also relevant is the undisputed fact that the appellant was in Stanley for about two hours during the period of about eight hours in which the burglary took place.  Not only that but also it was an admitted fact that when arrested the appellant and his co-defendants were in possession of Octopus cards that had been used to travel to Stanley at 12:44 p.m. on 26 October 2015.  Further, in his video record of interview the appellant admitted that he had been in the company of the other two defendants in Stanley for about two hours that day.

29.  The 1^st defendant pleaded guilty to the burglary and to an offence of going equipped to steal, whereas the 3^rd defendant pleaded guilty to handling a wristwatch stolen in the burglary in the period on and between 26 and 28 October 2015.  The latter had pawned the wristwatch at a pawn shop in Temple Street, Kowloon on the afternoon of 28 October 2015.  Clearly, as the judge found, the appellant was the third person present at the time that his two co‑defendants checked in to the Overseas Guesthouse at 11:50 a.m. on 28 October 2015.  He gave a false explanation for the absence of his passport.  No Visa to visit the Mainland was affixed to the passport.  The appellant and his two defendants were arrested in the company of each other in Discovery Bay, Lantau Island in the early evening of 28 October 2015.

30.  The appellant having denied in his video record of interview that he had been in the burgled premises, but having declined to give any explanation as to how his passport was found in the premises, there was no evidence of the latter issue.  In those circumstances, the observations of Chan PJ in the Determination of the Appeal Committee of the Court of Final Appeal in HKSAR v Chiu Wai Keung[16] are apposite.  In that case, the Appeal Committee refused the application for leave to appeal the applicant’s conviction for burglary, in which copper had been stolen from secured Switch Rooms in a building in a housing estate.  The applicant’s fingerprint had been found on the inside of the door to one of those Switch Rooms.  The applicant did not give or call evidence.  In the judgment of the Appeal Committee, Chan PJ said:[17]

“ In the present case, it cannot be said that in the circumstances of this case, the presence of the applicant’s fingerprint inside the switch room where entry and presence was restricted where a burglary taken place was not sufficient for drawing the irresistible inference that he must been involved in the crime. There was simply no other basis for drawing a different inference. In this connection, it is apt to refer to the following comments made by the Australian High Court in Weissensteiner v The Queen (1993) 178 CLR 217, 227, 229 which was cited with approval by Lord Hoffman NPJ in Li Defan and another v HKSAR (2002) 5 HKCFAR 320, 333,

“ There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge.” ”

31.  In all the circumstances, we are satisfied that the only reasonable inference to be drawn from the proved primary facts was that drawn by the judge, namely that in the course of having committed the burglary the appellant had left his passport behind in the premises.

Conclusion

32.  Accordingly, we applied the proviso and dismissed the appeal against conviction.