HKSAR v. SAEED ASIF SHEZAD

CACC 94/2018

[2018] HKCA 800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 94 OF 2018

(ON APPEAL FROM DCCC NO 737 OF 2017)

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J U D G M E N T

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1.  On 5 March 2018, the applicant was convicted after trial before District Court Judge Casewell (the judge) for a single offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. On 21 March 2018, he was sentenced to 15 months’ imprisonment.

2.  On 4 April 2018, he filed a notice of application for leave to appeal against conviction only, complaining that the prosecution evidence did not support his conviction of the charge alleged against him.  He had been refused legal aid and appears in person.

3.  When the applicant filed his appeal papers he was in prison custody at Tong Fuk Correctional Institution, but not long after he was released, having served his sentence.  I am informed that he was contacted by the police so that they could serve on him the papers in relation to the present proceedings.  On that occasion, he gave as his address, Room B, 8^th floor, 55 Ki Lung Street, Sham Shui Po, Kowloon.  A notice of hearing was sent by registered post to that address but was unclaimed.  The applicant was aware of these proceedings and of the need to inform the authorities and the Court of his address for service or any change of address.  He was eventually contacted on a telephone number that he had provided and a time was fixed so that he could attend the hearing of the application today. 

4.  The particulars of the charge that the applicant faced alleged that on 3 July 2017 he entered a hut at Kak Tin Village as a trespasser and stole one sickle, one copy of a Hong Kong identity card, one report reference card, one key bag with two keys and two car keys.

5.  The brief facts giving rise to the offence were as follows.  The occupier of the hut was Mr Lai Fook (PW1) who used it to store farming tools and equipment.  At about 3 pm on 3 July 2017, he locked up the hut with a padlock and left.  Later that afternoon, between 3 pm and 4 pm, Mr Yam Ho Hei (PW2), who was in the vicinity of the village, saw a South Asian male brandishing a garden implement that looked like a sickle.  He contacted the police.  A team of police officers attended the scene and one of them (PW3) saw the applicant outside the hut holding what appeared to be a sickle.  He was told to put it down which he did.  He was asked to provide proof of identity and he produced a photocopy of Mr Lai’s Hong Kong identity card and a police report card of the loss of some items.  The applicant was searched and found in his possession were a key bag and two car keys.  Mr Lai later identified all these items as having been taken from inside the hut where they were stored in a metal cabinet.  An inspection of the hut, revealed that it had been broken into and there were signs that it had been ransacked inside.

6.  The applicant gave evidence at trial.  He denied he entered the hut and took the items in question.  He acknowledged that he was a Form 8 recognizance holder.  He said he lived in Kowloon but was in the New Territories because he had mistakenly put on a friend’s T-shirt who had been staying with him and was to meet up with him to give him back his T-shirt.  He said that he was walking back home and stopped to have a drink of water from a spring when the police confronted him.  He said they did not find on him the items that they alleged were in his possession.

7.  The defence case sought to challenge the evidence of the police officers but the judge in his reasons for verdict found that they were truthful and reliable and that there was no contradictory evidence amongst them.  On the other hand, the judge disbelieved the applicant and rejected his evidence.

8.  The judge in convicting the applicant for the offence found that the prosecution case had been proved to a criminal standard and that the elements of the offence had been established.  He accepted the evidence of the occupier of the hut and the police officer that the applicant was in possession of stolen items when he stopped him.  He also found that it was the applicant who was seen brandishing the sickle in his hand in the afternoon of 3 July 2017.  He drew the inference that the applicant broke into the hut and took what items that were there.

9.  The applicant questions the judge’s verdict without identifying any error or mistake that would render his conviction unsafe or unsatisfactory.  Nor is there any on an appraisal of the evidence and the reasons for verdict.

10.  This application is without merit and the application for leave to appeal against conviction is refused.

11.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.