HKSAR v. TANG WAN CHEUNG

CACC 256/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 256 OF 2011

(ON APPEAL FROM DCCC 195 of 2011)

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J U D G M E N T

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Hon Macrae J (giving the judgment of the Court):

1.  The applicant was convicted after trial in the District Court before Deputy Judge Woodcock on three charges of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.  He was sentenced to 3 years and four months imprisonment on each charge concurrently.  He now appeals against conviction only.

The Facts

2.  At about 8:15 pm on 31 January 2011, the applicant was observed by a police constable on anti-burglary patrol trying to open the iron gates of four properties in Sheung Wo Che Tsuen, Shatin, New Territories.  The police constable (PW1) was one of a team of plainclothes officers who at the time had separated in order to patrol the village.  He had first noticed the applicant because he appeared to be looking around furtively and walking close to the entrances of various houses trying to look inside.  Accordingly, the officer followed him keeping a suitable distance away.  When the officer arrived near an awning (which was depicted in photographs and on a sketch produced at trial), he saw the applicant, whom he said was about 20 metres ahead of him, looking around before testing in succession the iron gates of house number 19, 18B and 18A in Sheung Wo Che Tsuen.  The applicant then walked to a narrow alleyway between house number 17A and 18A which he entered for a short distance and shone a torch upwards before emerging and going to the doorway of house number 17A.  He then walked back to house number 18B, 18A and 19, all the while looking around.

3.  PW1 was suspicious and informed his colleagues over his beat radio.  Having done so, he then saw the applicant trying to pull the iron gate of house number 19 with both hands.  After pulling the gate a few times he walked in succession to house number 18A, 18B and 17A where he performed the same actions.  Whilst he was doing so the applicant was looking around and also into the properties themselves.  When the applicant was about to leave the area, and pursuant to PW1’s instructions, he was intercepted by members of the patrol team.  At that time, PW1 noticed that the applicant, in addition to carrying a torch, was wearing a pair of white cotton gloves.

4.  After being intercepted, the applicant was questioned under caution by another officer in the team as to what he had been doing in the area.  He replied, “Nothing.  I have come to walk around”.  When asked if he had any friends in Sheung Wo Che Tsuen, he said “No”.  He was then asked directly why he had pushed the gate of number 17A, at which point the applicant said he did not wish to answer any further questions.  He was arrested and taken to Shatin police station.

The Grounds of Appeal

5.  Mr Bruce Tse, who appears for the applicant at this appeal but who did not represent him at trial, argues three grounds of appeal.  It is submitted, firstly, that the judge failed to consider the physical impossibility of PW1 being able to see what he claimed he had seen the applicant doing from his position some distance away under some awning, which position was depicted in a sketch drawn by PW1 himself and shown in certain photographs produced at trial (Ground 1).  Secondly, it is argued that by failing to evaluate the issue raised by Ground 1 in her Reasons for Verdict, the judge’s reasons were flawed and inadequate (Ground 2).  Thirdly, it is submitted that the judge erroneously applied the principle in Li Defan & Another v HKSAR [2002] 1 HKLRD 527 to find that the applicant’s election not to give evidence strengthened the adverse inference against him when, in the circumstances of this particular case, it could not do so (Ground 3).  However, Mr Tse informs us this morning that he is no longer pursuing this particular ground of appeal.

Discussion of the Grounds of Appeal

6.  The difficulty faced by Mr Tse in advancing Ground 1 is that it was never put to PW1 by the applicant’s counsel at trial that he was not in a position to see what he said he had seen.  The thrust of cross-examination was that the lighting conditions were such as to make PW1’s observation of the applicant difficult and not that PW1’s position made it physically impossible to see what he claimed.  It is true that such a submission was put forward in counsel’s closing address at the trial but, as the judge rightly remarked, the same was never put to PW1 for him to comment on. Had it been so put, PW1 might have explained how it was that he was able to see what the applicant did in relation to the different iron gates in question.  We very much doubt that an officer conducting surveillance in such circumstances would have been static and, indeed, there is no suggestion in PW1’s evidence that he in fact remained stationary for the duration of his observation.  For all we know, the officer might have explained, had he been asked, how he was able to manoeuvre himself into a position so as to have a direct view of what was going on.  He did at one point say that he never lost sight of the applicant, which evidence was again not challenged in cross-examination.

7.  Furthermore, looking at the sketch and the photographs now in the light of Mr Tse’s submissions, we cannot agree that it would have been impossible for PW1 to see what he said he saw.  The one gate that it might possibly be argued the witness could not have seen whatever his position within the awning was the gate of house number 19.  However, even on that issue it would be difficult for this court to come to a concluded view in the absence of cross-examination on the point.  In any event, the applicant was not charged with attempted burglary of house number 19.  We see nothing in this ground of appeal.

8.  Our view on the merits of Ground 1 necessarily impacts on Ground 2.  We fail to see how the judge can be criticised for not dealing with a point which counsel at trial chose not to canvass in cross-examination.  In any event, she was plainly alive to the issue and did deal with it because she twice mentioned the fact that it was not specifically put to PW1 in her Reasons for Verdict.  Nor could it be said that she did not have the sketch and the photographs in her mind when evaluating the evidence because she specifically referred to both items of evidence at the outset of her judgment.  We consider that there is no merit in Ground 2.

9.  In relation to the third ground of appeal advanced by Mr Tse, we note that this ground is no longer being pursued.  In the circumstances, we think Mr Tse was right to abandon this ground.  However, we would make this observation.  What the judge in fact said was this:

“I turn to the defence case. The defendant elected not to give evidence which is his right. The failure of an accused to give evidence is not evidence of his guilt. It proves nothing one way or the other. The fact that the defendant elects not to give evidence would strengthen the adverse inference to be drawn against him on the prosecution’s evidence. I referred myself to the judgment of Lord Hoffmann NPJ in Li Defan & Another (supra) at para 32.”

In the position in which the reference to this authority comes in the Reasons for Verdict, we do not think – as we believe Mr Tse now accepts - that the judge was in fact using the judgment in Li Defan’s case to strengthen any inference against the applicant.  The reference comes in the context of how a court might approach a defendant’s election not to give evidence.  Save that we would have used the word “could” rather than “would” in the penultimate sentence of the above passage, it seems clear to us that the judge was merely stating in general terms her understanding of how in appropriate circumstances the failure to give evidence might be viewed rather than how it would be applied to the specific case before her. 

10.  With due respect to Mr Tse’s well-argued and comprehensively researched written submission in relation to this issue, we think it is ultimately a misunderstanding of what the judge meant. 

Conclusion

11.  We see no grounds for impugning the verdicts in this case and the application for leave to appeal against conviction is refused.