HKSAR v. Cheung Kwan

IN THE COURT OF APPEAL

1997, No. 615
(Criminal)

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J U D G M E N T

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Leong. J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction out of time. The Applicant was convicted on 22nd July 1997 in the District Court of two charges of burglary and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. He was sentenced to 3 years' imprisonment on each burglary charge concurrent and 1 year imprisonment on the illegal immigrant charge consecutive to the other sentences.

3. The application for leave to appeal is sought only in respect of the conviction on the burglary charges.

4. The following facts were admitted by the Applicant at the trial.

5. Two burglaries occurred on the same day 2nd March 1997 in the same building Lung Wan House in Wong Tai Sin. The premises of the victim in the first burglary were at Room 3208. The victim went to sleep at 0300 hours on 2nd March 1997 and when he woke up later during the day, he found his premises had been burgled. A mobile phone and cash which had been placed in the living room were missing. The premises of the victim in the second burglary were one floor above at Room 3308. The victim and his wife went to bed at about 0200 hours and later in that morning, when he woke up, the victim found his wife's handbag empty on the ground in the kitchen and the contents of his wallet were scattered there. The victim found a number of items of properties missing including a mobile phone, ball pen, Rolex watch and a Dunhill handbag together with cash. His wife found the number of jewellery items including a necklace, bracelet, a number of pendants and an ornament box missing.

6. Meanwhile, in the early morning at 0410 hours the Applicant was seen by the police officers walking in Whampoa Garden. When he saw the police officers, he fled. As he fled, he discarded a handbag on the pavement. He was subsequently intercepted and under caution, he admitted that he had sneaked into Hong Kong by speedboat from Shekou, but he denied committing any robbery.

7. The handbag discarded by the Applicant was found to be the Dunhill handbag of the second victim. Inside this bag, were the items found missing from two premises, except the cash and two pendants which were found on the person of the Applicant. The Applicant told the officers that the cash belonged to him.

8. The Applicant admitted he sneaked into Hong Kong on 1st March 1997 and he spent a night at a hillside. A friend of his woke him up the next morning and gave him the handbag containing the items of properties and told him to take it back to China for him. They would then meet at Shenzhen when he would be rewarded. The Applicant said in the evidence that he ran because the police officers were strangers to him and he dropped the handbag by accident as he ran.

9. This defence was rejected by the judge and on the facts admitted, the judge concluded that the only reasonable inference was that the Applicant had burgled the premises and stolen the properties in question. The judge also considered alternative offences such as handling stolen goods but he concluded that the facts only admitted of the offences of burglary charge.

10. The Applicant's grounds of appeal are that there was no evidence from the victim of the burglary, no evidence that the burglaries occurred. No burglary implements had been produced and neither was there any fingerprint evidence. He also complained that the interpreter at the trial was the victim. The Applicant when he appeared before us also alleged that trial judge was biased against illegal immigrants.

11. The facts as admitted by the Applicant proved that the two burglaries did occur at the date, time and place as specified in the two burglary charges. The Applicant accepted that the properties found missing from the two premises were found in the handbag discarded by him. He admitted at the trial that the handbag was in his possession before it was discarded. Having regard to the proximity in time between when the Applicant was intercepted and when the victims last saw the properties in their premises, and having rejected the evidence of the Applicant, the judge was entitled to draw the inference that the Applicant had broken into these two premises and stolen the properties in question.

12. The Applicant says the interpreter at his trial was the victim in the burglary. There is nothing to substantiate that. At all trials in the courts of Hong Kong, there are sworn interpreters who are court officers. It would be inconceivable that the court would call upon a victim in a case to act as a court interpreter for the defendant. There is nothing to substantiate the complaint that the trial judge was biased against illegal immigrants. The grounds of appeal must fail.

13. We note that the Applicant in seeking extension of time has alleged that he had put in his notice of appeal, but the authorities had not forwarded the notice to the court. We have no verification of the Applicant's allegation. In any case for the reasons stated above, we are satisfied that even if extension of time is granted, the application for leave to appeal against conviction will inevitably be refused. For these reasons, the application for leave to appeal against conviction out of time is refused.