HKSAR v. CHEN CHI KEUNG

CACC 113/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 113 OF 2002

(ON APPEAL FROM DCCC NO. 1032 OF 2001)

______________

HKSAR v. CHEN CHI KEUNG

______________

__________________

J U D G M E N T

__________________

Hon. Cheung J.A. (giving the judgment of the court):

The application

1. The applicant was charged with the offence of attempted burglary on 6 June 2001 of Chung Fat Reminbi Exchange Company ("Chung Fat"). He was convicted after trial by Deputy District Judge T.S. Jenkins. The applicant now applies for leave to appeal against conviction. A single judge of this Court had earlier refused a similar application by him.

The facts

2. The facts revealed that at about 5:50 a.m. on 6 June 2001, the anti-burglary alarm of the premises of Chung Fat was activated. The premises was located in the Shui Sang Building in Tsuen Wan. The alarm was connected to a security company. As a result of the alarm, three police officers including PW7 and PW8 arrived at the scene. They found that the main gate of Chung Fat had been locked and that there was nothing unusual about it. As there were some vacant shops in the vicinity of Chung Fat, PW7 and PW8 conducted a search in the vicinity. When they reached the first floor landing they saw the applicant emerging from underneath the shutter of the rear entrance of a disused restaurant. The applicant was holding a bag under his armpit and wiping his hands with a garment which he discarded. The applicant had a lot of sweat on his head and was very nervous. PW7 asked him what he was doing there. The applicant replied that he was sleeping in there. When asked by PW7 where and when he had slept in the restaurant, the applicant did not give any answer. PW8 then guarded the applicant while PW7 entered the restaurant to investigate. Inside the restaurant, PW7 discovered a hole at the bottom of the staircase leading down from the restaurant. He put his head into the hole and saw another hole on a wall. PW7 then returned to PW8 and the applicant. After advising PW8 of his findings, PW7 declared arrest on the applicant for attempted burglary.

3. The premises of Chung Fat was divided into two parts. The first portion was occupied by Chung Fat while the other portion was occupied by a fortune-teller. Access to Chung Fat was through a glass door which one could only reach via the fortune-teller's portion of the premises. It was discovered that after the alarm had gone off, the glass door had been broken with glass fragments scattered on the ground, although the door itself had been closed. There was a hole on the wall in the fortune-teller's portion of the premises. This hole led to the vacant premises next door to Chung Fat. In other words, the vacant premises had two holes on the walls. These holes had not been on the walls before.

4. The glass fragments of the broken glass door together with the T-shirt and trousers worn by the applicant and the garment discarded by him were subsequently sent to the government laboratory for examination. After examination the government chemist found six glass fragments on the T-shirt worn by the applicant. Five glass fragments were found on his trousers. Two of the glass fragments found on each of the T-shirt and trousers matched in colour and reflective index to the glass fragments of the broken glass door. In addition, a total of 18 glass fragments were found on the garment discarded by the applicant. Seven of the glass fragments matched in colour and reflective index to the glass fragments of the broken glass door.

The applicant's evidence

5. The applicant gave evidence that in the evening of 5th June 2001 and the early hours of 6th June 2001, he felt troubled or annoyed and he had started walking aimlessly around the Tsuen Wan area. He was under the effect of alcohol and eventually some time after four in the morning on 6th June 2001, he entered the Shiu Sang Building to find a quiet place to sit down and think over things.

6. In the past, he had got drunk in a drinking establishment in the building and the waiters had taken him to some staircase where he had slept and so on this occasion he had looked for the same staircase. When he heard the alarm ringing he was going down the staircase when he met PW7 and PW8. He denied emerging from the restaurant as they had testified. At the time of his encounter with the police, he had already picked up a garment to wipe some paint or dust which he had got on his right shoulder and on his bag when he had been leaning back on the staircase.

Ground of appeal

7. The main ground of appeal of the applicant is that the police had fabricated a story against him. He prepared a 13-page written submission with attachments in which he listed out, among other things, what he alleged to be discrepancies in the written statements of PW7 and PW8 and in the notebook of PW7. He applied to call these two witnesses to testify again. In our view, there is no merits in his submission and we will not accept his application to call these two witnesses to testify in this appeal.

The notebook

8. The first complaint is that the content of the notebook made by PW7 was totally different from the content of his statement dated 6 June 2001 which was prepared shortly after he had completed the entry in his notebook. In our view, the applicant had misread the content of the notebook. The relevant entry of the notebook was made at 6:50 a.m. on 6th June 2001 in the reporting room of the Tsuen Wan Police Station. By this entry, PW7 post-recorded how he arrested the applicant earlier at 6 a.m. at the scene. The entry was not a post-recording of all the events that had taken place after the police officers arrived at the scene and encountered the applicant. On the other hand in the written statements of PW7 and PW8, there was the description of the events of their arrival at the scene and their encounter with the applicant and the eventual arrest of the applicant. Hence, the contents of the statements and the notebook were different. It does not support the applicant's allegation that the police officers had fabricated a story against him.

Discrepancies

9. Turning to the alleged discrepancies of the statements, the applicant first contended that these two police officers were mistaken about the colour of the trousers he was wearing at the time of his arrest. The statements referred to the applicant wearing a grey colour long trousers, whereas the trousers he was wearing was brown in colour. He suggested that these two police officers got the colour wrong because they simply copied it from the statement of the exhibit officer. The trousers had since been returned to the prosecution after the trial in the District Court. But, even if the police officers were mistaken about the colour of the trousers worn by the applicant, this is not an indication that the two police officers had fabricated a story against him. No issue was taken at the trial about the colour of the trousers worn by the applicant. The overall credibility of the police officers was not dependant on whether they were mistaken about the colour of the trousers.

10. The applicant further claimed that the police officers described him coming out from the half-opened shutter of the restaurant by bending his body and yet they used no similar description about how they entered the restaurant. Clearly the police officers did not have to describe how they entered the restaurant when they made the statements.

11. In the notebook, it was recorded that after the caution, the applicant responded that "Ah Sir, I just went up there to sleep, after I woke up I wanted to go but by chance bumped into you.". The applicant stated that if the police officers had actually seen him coming out from the restaurant, they would not have permitted him to give such an answer. They would have asked him what was he doing inside the restaurant and yet this question was never asked. Once again, the notebook was about the arrest of the applicant and not the earlier encounter and conversation between the police officers and the applicant.

12. The applicant submitted that in the statements of the police officers it was stated the applicant used an almond colour shirt to wipe his hands. PW8 further stated that the applicant wiped his hands continuously. The applicant submitted that these suggested that both of his hands were moving and yet the two police officers further claimed that he was carrying a bag with one hand as well.

13. We fail to see the relevance of this point. The mere fact that the applicant was carrying a bag in one hand and carried a shirt with the other hand and used it to wipe his hand does not mean both of the hands were moving at the same time. He also suggested that the description of the bag in the two police officers' statements were different from the description of the bag in the exhibit officer's statement. Again, we see no merits in this point. It had never been suggested that the applicant was not carrying any bag at all at the time of his arrest.

14. The applicant further relied on the different description of the holes in PW7's statement and in his notebook. In his statement, PW7 referred to the holes as the "floor holes", whereas in his notebook he referred them as "the holes on the wall". PW7 may have used some very loose language when he described the holes on the walls but certainly there is no indication in the Reasons for Verdict that there was any dispute that there were indeed holes on the walls.

15. In the statement of PW7, he had stated that before he declared arrest on the applicant, he had asked him again where had he slept earlier, but the applicant did not respond. The applicant submitted that if PW7 had seen him coming out from the rear of the restaurant, there was no point in asking him where he had slept. He could have asked him directly where inside the restaurant had he slept. This indicated that PW7 had not seen him coming out from the restaurant. The fact that PW7 had not asked him that question is not an indication that PW7's evidence was untruthful. PW7 had stated that earlier on when he first saw the applicant he had asked him where he had slept and whether there was any bedding.

16. In PW8's statement, he stated that while he was guarding the applicant, he had asked him to produce his identification document. The applicant claimed that since his identity card had already been given to PW8, there was no point in asking him for a further identification proof. The applicant again suggested that PW8 made up his statement. In our view, this is a far-fetched submission. The judge had the opportunity of hearing the evidence of the police officers and the applicant. He came to the view that the police officers were truthful witnesses and accepted their evidence.

Basis of the decision

17. The judge stated that

“ Given the time of the defendant's interception by PW7 and PW8 in the early hours of the morning very shortly after the attempted burglary of Chung Fat and the location of that interception, a viable escape route from Chung Fat in close vicinity to it, coupled with the presence of glass fragments on the defendant's clothing matching glass taken from the broken glass door at Chung Fat and matching it, I find there to be an irresistible inference to be drawn that the defendant was the person, or at least one of the persons, who attempted to burgle Chung Fat by breaking the glass door on the morning in question."

18. In our view, this is a conclusion that the trial judge was clearly entitled to draw. This is a case based on the finding of fact. Unless the finding was obviously wrong or based on some erroneous interpretation of the evidence, this Court is unlikely to disturb a finding of fact by the trial judge who had the opportunity of observing how the witnesses had given their evidence. The matters referred to by the applicant whether taken individually or as a whole are not matters of substance which would cast doubts on the finding of fact by the trial judge.

19. Evidence indicating that the applicant was involved with the attempted burglary was not simply based on his presence in the vicinity of the burgled premises, but also included glass fragments found on his clothing which matched the glass fragments of the broken door inside the burgled premises. The applicant attempted to explain away the presence of the glass fragments by suggesting that his clothing might have been contaminated with the glass fragments when he innocently picked up a garment in the stairs to wipe away some paint or dust from his back and shoulder. The trial judge described this as a ludicrous explanation and rejected his evidence on this. We agreed.

Glass fragments on the applicant

20. The applicant further suggested that he could not rule out the possibility that the glass fragments might have "planted" on his clothing. The applicant was legally represented at the trial and yet not the slightest suggestion was made by his lawyer to the police about this allegation. In our view this is a desperate attempt by the applicant to look for some hopeless grounds of appeal.

21. The applicant also said that if he was involved with the crime and if the garment was contaminated with the glass fragments he would not have used it to wipe the dirt on his clothing or bag. We fail to see how this would assist the applicant. It was indeed accepted by him at the trial and in this appeal that he had used the garment to clean the dirt.

Absence of other forensic evidence

22. According to the agreed facts, the gloves, the iron bars and the hydraulic jack found in the premises were examined for DNA samples to be compared with the nail clippings and blood samples taken from the applicant. But the government chemist was unable to find any DNA samples from the exhibits. Further, no other findings were made in relation to the nail clippings. The absence of other forensic evidence against the applicant had been dealt with by the judge and he stated that it did not cause him to have any doubts about the applicant's guilt in this case. This must be correct. While the presence of such evidence may further strengthen the case of the prosecution, the absence of other forensic evidence does not mean that, in the light of other evidence, the applicant is not guilty of the offence charged.

23. The applicant also alleged that the holes on the walls were quite small and if he had climbed through the holes, his clothing would have been dirtied by the ashes and also torn by the edges of the holes. Yet his clothing was clean. This was also a point considered by the judge. He accepted PW8's evidence that he noticed the applicant's clothing was dirty. While the clothing that was produced in court was relatively clean, he said that he was not troubled by this because the clothing had been examined by the government laboratory after the applicant's arrest. This is a matter that the judge was entitled to take into account.

24. The applicant also claimed he had earned a good living earlier on, although he was in financial difficulties in 1998, he had no intention to steal. The case was decided by the judge on the basis of the evidence presented to him and the financial condition of the applicant was irrelevant.

25. The applicant also claimed that the police officers had fabricated the record of his taped interview. The judge did not rely on the taped interview in his findings against the applicant.

Conclusion

26. In our view, the decision was correct and the application for leave to appeal is dismissed. As there is absolutely no merits in the application, we shall disallow three months of the time that the applicant had spent in custody to be counted as part of his sentence.