HKSAR v. TANG LAP SAN

CACC345/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 345 OF 2010

(ON APPEAL FROM DCCC NO. 401 OF 2010)

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REASONS FOR JUDGMENT

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

1.  At the hearing of the application for leave to appeal against conviction we dismissed the application and said we would give our reasons for so doing in due course. We do so now.

2.  The applicant sought leave to appeal against his conviction after trial on 21 September 2010 by District Court Judge Yip of the offence of burglary, contrary to section 11(1)(a) of the Theft Ordinance, Cap. 210.

THE CHARGE

3.  The charge alleged that on 16 March 2010, the applicant entered Room C on the 4^th Floor, 2N, Shek Kip Mei Street, Sham Shui Po, Kowloon as a trespasser with intent to steal.

THE TRIAL

4.  There was no dispute at trial that the applicant had entered Room C in the premises sometime after 5 p.m. on 16 March 2010 and that he had done so by using a plastic card to prise open the interior ‘pushbutton’ lock in the door, which was in the locked position.  At that time, Mr Ho Shing Cheung, who lived in the room, was resting on a bed within that room.  The applicant entered the room and moved two steps inside.  Prior to the door being prised open, someone had knocked on the door three or four times enquiring “Anyone inside?”  In face of the advancing Mr Ho, who rose from his bed, the applicant left the room.  A short conversation ensued between the two of them outside the room, resulting in Mr Ho calling the police.

5.  The applicant had been hired by Madam Hau Yeung Chi Wan, the agent of the owner of the four roomed premises, Mr Au, earlier that day to replace the doors to two of the unoccupied rooms of the premises, namely Rooms A and B.  He was to be paid $1,500.  At about 5:15 p.m. that day Madam Hau gave the applicant three keys to enable him to gain access to the premises, namely at street level and then to a metal grille and wooden door to the whole of the premises on the 4^th floor of the building.

THE PROSECUTION CASE

6.  In the prosecution case, Mr Ho testified that he had heard knocking and enquiries at the door to his room but that he had not answered.  He did not know the applicant.  He followed the applicant out of the room and, in answer to his enquiry as to why he had entered his room, the applicant said that he done so to borrow a pencil.  In response, he told the applicant that, if that was the case, he should go downstairs into the street and buy one from a stationery shop.  Then, he told the applicant that he was going to call the police, in response to which the applicant asked to be given a chance.

7.  A party of several police officers, including PC8515 arrived at the premises at about 5:30 p.m.  The applicant was working in Room A.  He had tools with him.  PC8515 had a conversation with the applicant, after which he arrested and cautioned him.  Later, at the Sham Shui Po Police Station he made a written record of that event, including the applicant’s response.

THE DEFENCE CASE

8.  The applicant did not give or call evidence at trial.  His case, as put in cross-examination of Mr Ho and PC8515, was that he had entered Room C in order to borrow a pencil.  In cross-examination, PC8515 confirmed that the applicant had told him that he was on the premises to fix doors, having been employed to do so by Hau Yu Real Estate Agent Company.  He produced the three keys to show how he had gained access to the premises.  PC8515 agreed with the suggestion that the applicant had told him that he had entered Room C in order to find a pencil to use in his work replacing the doors, no doubt to mark various positions.  Similarly, he agreed that the applicant had demonstrated how he had used a plastic card to prise open the locked door to Room C.

REASONS FOR VERDICT

9.  The judge ruled inadmissible an alleged admission made by the applicant on the premises after having been arrested and cautioned, which was put into writing later at Sham Shui Po Police Station and signed by the applicant.

10.  The judge rejected as incredible the applicant’s explanation that he had entered Room C in order to borrow a pencil.  He noted that at that time of the day in Shek Kip Mei the applicant could have gone down into the street to buy a pencil.  Of the contention that the applicant’s conduct was reasonable, the judge said :

“I do not think that his uninvited entry into a private locked room sounds reasonable at all. He was a stranger to PW1(Mr Ho) or Room C. It was serious enough for him to enter PW1’s room and the more serious as it was locked.”

11.  Of the circumstances of the applicant’s entry into Room C, the judge found :

“There was no response from inside. It was clear that at that juncture, there was no consent to enter. The moment he set foot inside the room, he had become a trespasser.”

12.  In the result, the judge determined that the irresistible inference to be drawn was that the applicant had entered Room C with an intent to steal whatever he found.

GROUNDS OF APPEAL AGAINST CONVICTION

13.  By Ground 1 of the Grounds of Appeal against Conviction advanced on behalf of the applicant, Mr Y.C. Yeung submitted that the judge failed to consider whether or not the applicant has a reasonable and/or mistaken belief that he had consent to enter any part of the premises in order to carry out the work for which he was hired.  There was no evidence as to the ambit of the instructions given by Mr Au as owner of the premises, in particular of any restriction on the applicant's movements within the premises.

14.  By Grounds 2 to 4, it was submitted that the judge had erred in drawing the inference that the applicant had entered Room C with the intent to steal what he found in the room.  In rejecting submissions made at trial as to the drawing of inferences, the judge had “failed to appreciate and/or act” on the requirement, that the prosecution prove primary facts before inferences adverse to the applicant could be drawn.  The applicant’s out of court statement that he had entered the room in order to take a pencil, was to be given weight by the fact that that explanation was given spontaneously and immediately, with the result that it could not be excluded as being true.  Accordingly, the judge erred in determining that he inferred that the applicant had entered Room C with the intent to steal.

A CONSIDERATION OF THE SUBMISSIONS

Ground 1

15.  The instructions given by Mr Au, the owner of the premises, to Madam Hau are the subject of ‘Admitted Facts’, namely to rent out Rooms A and B of the premises and to hire a worker to replace the doors to those rooms.  Similarly, Madam Hau’s instructions to the applicant are also the subject of ‘Admitted Facts’, namely to fix the doors to the “two front rooms”.

16.  There is no dispute that the “two front rooms” are otherwise described as Rooms A and B.  The sketch drawn by PC8515, exhibit P4, adduced into evidence through the Admitted Facts depicts the premises as divided into four rooms, A to D.  Access to the rooms was through an L‑shaped corridor. Rooms A and B lay opposite the front entrance to the premises, whereas Room D lay at the end of the corridor that ran from the left of the front entrance on entry into the premises and Room C lay at the end of a right angle turn made in the corridor at Room D.

17.  It follows, that there was nothing in the undisputed instructions given to the applicant which required him to go beyond Room B to Room D, let alone to Room C.  His work required him only to remove the existing doors from the door frames and replace them with new doors.  It was the evidence of Mr Ho, a former resident of Room B, that after he had vacated the room, the door to it and the door to the unoccupied Room A were left open.

18.  Clearly, there was no imperative in the discharge of his work that the applicant move about in the premises beyond Room B.  By contrast, an electrician or a plumber might need to go elsewhere in the premises to turn off or shut down the supply of either electricity or water to the particular part of the premises in which he was working, in order to render his work safe.

19.  Although the applicant had not given evidence to support the contention that he was possessed of a reasonable belief that he was permitted to go anywhere in the premises in performing his job of replacing the doors to Rooms A and B, nevertheless the judge considered but rejected defence submissions to that effect.  Clearly, he was entitled to do so.

Grounds 2 to 4

20.  Prior to his finding that the irresistible inference he drew in respect of the applicant’s conduct was that he had entered Room C with an intent to steal, the judge had set out in extenso the arguments canvassed on behalf of the applicant by counsel at trial.  It is clear that the judge approached the issues of the determination of credibility and the drawing of inferences adverse to the applicant by having regard to all the evidence in the round.  He said so specifically in respect of the evidence that the applicant had given a spontaneous immediate explanation for his presence in Room C : “This explanation has to be considered in the light of all the evidence.” Similarly, having regard to the improbability of the applicant committing a burglary, given the fact that obviously it was known that the applicant was on the premises with his tools, that he had been promised a substantial reward of $1,500 for his work and that he remained on the premises after Mr Ho said that he was going to call the police the judge examined that evidence in the context of all the evidence, including the undisputed fact of the applicant “breaking into a privately locked Room to allegedly borrow a pencil”.

21.  Of the evidence that the applicant had knocked on the door and enquired if anyone was inside prior to prising open the lock to the door, the judge set out the counterbalancing considerations, namely that conduct “could suggest an intention to seek permission to enter but they could equally suggest an intention to enter without the permission if no one was in”.

22.  We are satisfied that the judge approached the issue of the drawing of adverse inferences to the applicant entirely correctly.  He was entitled to reject the applicant’s out of court assertions that he had entered Room C to look for a pencil as “incredible”.  Similarly, having had regard to all the evidence, he was entitled to draw the inference that the applicant had entered Room C in order to steal.  The evidence in support of that determination was overwhelming.

CONCLUSION

23.  In the result, we were satisfied that there is no merit in any of the Grounds of Appeal against Conviction.  Accordingly, the application for leave to appeal against conviction was dismissed.