R. v. CHAN HEUNG FUK

IN THE COURT OF APPEAL

1996, No. 670
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an application for leave to appeal against conviction and sentence. It comes to us from a trial before His Honour Judge Davies in the District Court.

2. One man was on trial: this applicant who is in his mid 20's.

3. He faced five charges. The first four were of burglary, while the fifth was of remaining in Hong Kong without authority having landed here unlawfully.

4. To the charge of remaining, he pleaded guilty. Of the four burglary charges, the first three depended solely on confession statements. The judge excluded those statements. Accordingly, submissions of no case to answer on the first three burglary charges succeeded.

5. So only one charge called for the judge's verdict, namely the 4th charge.

6. On November 5 last year, the judge gave his verdict convicting the applicant on that charge of burglary.

7. Sentencing took place on the same day. On that charge of burglary, the applicant received three years. And on the charge of remaining, he received one year and three months. The two terms were made consecutive. So he received a total of four years and three months' imprisonment.

8. In his notice of application, he wrote this about his conviction for burglary:

"Not satisfied with the conviction the District Court imposed on me for the charge of burglary. Now (I) apply for appeal. Regarding the charge the court convicted me of, I really do not know at what place and what time the incident occurred. I know nothing about the crime, this is the ground for my application to appeal."

9. And this is what he wrote about his sentence:

"I was convicted of two charges on 5th November in court 28 of the District Court and the sentence was 4 years and 3 months. I really can not understand the sentence. I think it is too heavy, so one of the grounds for my appeal is to reduce the sentence"

10. The charge of burglary on which he was convicted is particularised thus:

"CHAN Heung-fuk, on the 18th day of May, 1996, at Ngau Tau Kok, Kowloon, in Hong Kong, having entered as a trespasser a building known as Room 103, Block R, Telford Gardens, stole therein $2,500 Hong Kong currency, $1,300 RMB, one gold bracelet, three pairs of shoes, one camera, one lighter, three ball pens, one white tracksuit, one ellesse watch, one 'AIWA' mini radio with headphone, one AIWA cassette with headphone, one 'National' shaver, one wallet and one bag."

11. There was no dispute at the trial as to the fact that that burglary had been committed. Nor was there any dispute that when the police arrested the applicant in Kwun Tong on May 20 last year, they found in his possession: HK$217 and RMB1,490 in cash and all the items taken in the burglary charged under the 4th charge except for the shoes, the ball pens and the camera.

12. In all the circumstances, the judge thought - and we agree - that the doctrine of recent possession applied.

13. As to the applicant's explanation, it was that he had won those items playing cards with five other illegal immigrants on a hillside.

14. After a careful consideration of that explanation, the judge, who saw and heard it being given in the witness-box, felt sure that it was false. Accordingly, he convicted.

15. We in this Court do not have the advantage which the judge had: which was to observe the applicant as he was giving the explanation.

16. There is nothing which the judge said or did which enables us, without that advantage, to overturn his decision reached with that advantage.

17. So we must now turn to sentence, because the application necessarily fails as far as conviction is concerned.

18. We have studied the reasons which the judge gave for the sentence which he passed. And we are unable to fault those reasons or the sentence to which they led.

19. In the result, the application for leave to appeal against sentence must also be dismissed.