R. v. YEUNG LAI YIN

IN THE COURT OF APPEAL

1995, No.549
(Criminal)

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J U D G M E N T

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Bewley, J.:(giving the judgment of the Court)

1. The applicant was convicted in the District Court by Deputy Judge Lung of attempted burglary and was ordered to be detained in a Training Centre. He now applies for leave to appeal against conviction and sentence.

2. On the afternoon of 17th May, 1994, two patrolling police officers in plain clothes saw the applicant and another man leaving a building in Yuen Long. The two men walked to another building nearby and, after looking around for a while, ascended the staircase of this building. The officers were suspicious and followed. On the second floor the other man, who was the second defendant at trial, was arrested as he was fiddling with the iron gate of an apartment, a folding ruler in his hand.

3. Reinforcements were called up and, when they reached the top of the staircase near the roof, they met the applicant walking downstairs. Nothing suspicious was found on him but he was questioned about what he was doing there. His replies were vague or non-existent and he eventually confessed to acting as a lookout for the man arrested on the 2nd floor.

4. At the police station the applicant made a cautioned statement, in which he repeated that he had been acting as a lookout while his partner in crime attempted to prise open the gate lock with a ruler. When he saw the police he ran up to the rooftop. He admitted that the ruler was his but he did not know how to use it.

5. The applicant alleged that he had been assaulted by the police both at the scene and at the police station. The contents of the cautioned statement had been concocted by the officer. These allegations were rejected by the judge and the cautioned statement was admitted in evidence.

6. The applicant did not give evidence or call witnesses on the general issue.

7. The judge found that the police officers were telling the truth and that the applicant and the other man, who pleaded guilty to other charges at trial, had attempted to break into the flat with intent to steal.

8. We have heard nothing today that casts doubt on the correctness of the conviction and we dismiss the application.

9. So far as sentence is concerned, the applicant is 20 years of age and has two previous convictions for burglary. He has been placed on probation once and detained in the Drug Addiction Training Centre on two occasions, the most recent following his conviction for possession of dangerous drugs shortly before his arrest in this case.

10. Through his counsel the applicant requested the judge to send him to prison rather than the Training Centre, as recommended by the Commissioner of Correctional Services. His report was unfavourable but spoke of some prospect of the applicant turning over a new leaf after disciplined training and aftercare supervision. That may be an optimistic forecast but clearly prison would be the wrong option at this stage. The application to appeal against sentence is also refused.