HKSAR v. WU KA FAI

CACC 440/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 440 OF 1998

(ON APPEAL FROM DCCC 714 OF 1998)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 11th August 1998, the Applicant (D2 at trial) was convicted in the District Court on charges of burglary of a flat and resisting a police officer in the due execution of his duty, following a trial before Judge Line. He was sentenced to 3 years' imprisonment on the first charge and to a consecutive term of one month's imprisonment on the second. He now seeks leave to appeal against conviction on both charges.

2. In his original grounds of appeal, the Applicant complained that the judge did not conduct a fair trial because of a prejudicial outlook on the case and a disregard for "all the doubts" which he alleges had arisen during the case.

3. There are further grounds which he has advanced to which I shall turn later.

4. The nature of the case against D2 was simple. He and D1 (who was not prosecuted) entered the building where the burgled premises were. They could both be seen going to the lift on a security video film, and it was this which initially made them become suspects.

5. The daughter of the family who lived in the burgled premises knew D1 and D2, and D2 in particular had visited the flat only shortly before. At the time of the burglary there were no occupants inside the premises. A day after the burglary, five of the stolen items were recovered at three separate pawnbroker shops. D1 had used his own name to pawn the items using his true identity card but giving a false address. He was arrested next day when the allegation in the second charge relating to this application arose.

6. D2 chose to give evidence at his trial in order to explain his recent possession of the stolen items. The explanation he gave is set out by the judge on page 12 of the appeal bundle line P:

"He said he was a friend of D1 whom he thought was 15 years of age, though he didn't know his age exactly. It was on the afternoon of 5 March they were together in Kwun Tong at a video game centre and that the 15 year old asked this 21 year old defendant to go to Tseung Kwan O with him. This defendant did not ask him why and he went there on the bus with him not knowing why. He says that once they were in Tseung Kwan O, the 15 year old said he was there to get something. This defendant did not enquire what or why, but went with him to the 35th floor of the block where the burgled premises were situated.

The 15 year old told him to wait in the lift lobby. He did not ask why. He had been in the flat before on a social occasion. He waited there some 20 minutes. He could advance no explanation as to why he was left waiting there in the lift lobby for that amount of time on the 35th floor. When the 15 year old emerged and came back to the lift lobby, he was carrying a bag. The defendant asked what he had got and the 15 year old, according to the defendant, smiled and said 'Nothing.' The defendant claimed in his evidence that he was not curious.

Later, according to the defendant, the 15 year old produced to him some items of female jewellery in a plastic bag. This was later the same day, away from the scene of the burglary. The defendant tells me that the 15 year old said he was under age, therefore could he, the defendant, please help him out by pawning these things on his behalf. The defendant agreed to do so and indeed, on the next day, 6 March, he went to three separate pawn shops and raised a sum of $1,400 pawning these various items.

The defendant claimed in his evidence that he was not suspicious as to the provenance of these items of female jewellery in the possession of this 15 year old. And obviously, implicit in that claim that he was not suspicious, he never connected the possession of those items with the 15 year old emerging from the flat with a smile and declining to give an explanation of what he carried.

When he was asked to explain in the witness-box why he had given a false address quite different from his own as appears on other written documents in the case, his explanation was this: 'I just said it casually. It was just a slip of the tongue and I told an address.' "

7. Not surprisingly, the judge did not believe the account given by D2. There was, however, more. There was evidence of a confession. One important aspect of what D2 told police was that D1 had been able to borrow the keys of the burgled flat on one occasion, and it was after the keys had been copied that the duplicates were used to commit the burglary.

8. On the face of it, the evidence was completely overwhelming. The Applicant, however, has placed today a great deal of emphasis upon evidence that he was, as he puts it, beaten up by the police which has resulted in evidence being given that was unfair to him. There was certainly evidence of injury to the Applicant and this issue is dealt with in the Reasons for Verdict at page 16 of the bundle line E, where the judge said this:

"The police officers in question who spoke to this contested issue, I found to be good and credible witnesses. They were steady and mature officers who were completely undamaged by cross-examination. I completely reject the idea that in full view of the public in Central Kwun Tong, opposite McDonald's which was open and doing business at the time, that they just landed on this young man and laid into him with violence as he describes.

It was right that the defendant, after he was bailed, went to a hospital and complained that he had been beaten up by the police and had an examination which revealed some injuries to his body as set out in Exhibit 14. I have absolutely no doubt that those injuries were caused in the struggle which occurred upon his arrest.

It was common ground that the police officers got him down on the ground with an officer on top of him, he lying prone on the ground. It was mostly common ground - I say 'mostly' because a defence witness changed his ground about it - that he was struggling on the ground. Obviously, struggling when they were trying to put the handcuffs on him would cause the abrasion to the skin over the right and left wrists and that was what the doctor found. A red mark of 3 centimetres would be entirely consistent with him being pushed and held down. And if in the course of that struggle he was wriggling around and pushed down, I do not find it at all surprising that he banged the left side of his head and that's why he had a bruise on the left corner of his eye and a bump on the left side of his head.

Probably the best point that was available to him on the special issue was that the officers said that they saw no injuries on him. The only injury that may have been obviously noticeable would have been the one on his face, at the left corner of his eye. We know this went black later. It is not entirely clear how it would have appeared when the officers saw him but the fact was that, on any view, it is a minor injury and unless it became the object of some significance like a medical examination or the object of some investigation, I am not surprised that nobody noted it or remembered it."

9. That evidence was something which the Applicant has given much attention to during the course of today's hearing, but it was for the judge to decide on the evidence of witnesses that he saw and heard. However, it did not end there and the Applicant himself has drawn to our attention that the judge had other material on which to form his impression of the Applicant. At page 15 line I, the judge said:

"He claimed that it was not until he was charged, which was in June, that he had any idea that it was going to be alleged that he had confessed to any crime. Asked whether he suspected that these were confessions he was being made to sign, his answer was, 'I had no time to suspect.' The idea of him in the cells overnight at the police station not wondering why the police had used violence upon him to force him to sign a document and not contemplating or suspecting it was a confession to crime is quite, as I say, unworthy of belief.

He was asked, 'Well, how did you feel when you found out?' His answer was, 'No special reaction.' He was asked, 'Well, weren't you curious as to what you were being made to sign?' His answer was, 'No.'"

10. It is unnecessary to go through all of the points which are made by the Applicant in his grounds of appeal which, to some extent, were drafted by trial counsel at the end of the case in the District Court. There was, however, one point which he raised in his grounds to the effect that there was a police notebook which was read over to him at 12:45 a.m. which initially put us on enquiry. He has told us that there was a document which he signed when he was given a photocopy of the book. That document was not exhibited in the trial and therefore we have only seen it in this court on a de bene esse basis at the Applicant's request. The Applicant, too, was reminded of how it looked by being shown it a few minutes ago. There is very little doubt that if the document is dated 0050 as opposed to 0030, that would be in complete accordance with the time when he would have received his copy of the notebook. It is, by looking at the writing on the document, impossible to say what time is recorded. We do not need to go further than to say that the position is entirely equivocal, and if there had been any importance to be attached to it, no doubt the judge would have referred to it in his Reasons for Verdict. The judge has made no such reference to it and we cannot see that this is a matter of any great importance.

11. One last matter which the Applicant raised at a very late stage, and which forms no part of his written grounds, is that he suggests that at the start of his trial, counsel may not have been ready with full instructions to proceed with the case. It is apparent by looking at the trial record that there was no application for any adjournment and we attach no significance to what the Applicant has told us on this aspect. What is important is that the judge, by the end of the trial, was fully aware of all of the points that had been made on behalf of the defence of any significance and importance and it is abundantly apparent that this Applicant was convicted on evidence that could have led to no other sensible result.

12. Accordingly, his application is dismissed. It was utterly unmeritorious and as a result we shall order that three months of the time this Applicant spent in custody awaiting the hearing will not count towards his sentence.