HKSAR v. CHAN KWOK CHUEN

CACC 357/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 357 OF 2015

(ON APPEAL FROM DCCC 513 OF 2015)

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REASONS FOR JUDGMENT

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1. The applicant was tried in the District Court on a charge sheet containing one charge of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The charge alleged that the applicant, together with Chan Yee Lap, on 23 March 2015 entered as trespassers part of a building known as Ground Floor, No 123 Sai Yee Street, Mongkok, Kowloon and stole from the premises a safe containing HK$19,810 and also stole a number of other items amongst which was a basket containing some Hong Kong currency and foreign currencies.

2. The applicant’s trial took place before Deputy District Judge E Lin and on 2 October 2015 he was convicted of this charge.  On the same day he was sentenced to 30 months’ imprisonment.  He subsequently applied for leave to appeal against his conviction.

3. At the hearing of the application I refused it and said I would hand down my reasons for so doing at a later date.  This I now do.  

The prosecution case

4. The person Chan Yee Lap with whom the applicant was jointly charged pleaded guilty at trial and so the trial proceeded only against the applicant. Chan Yee Lap (“Chan”) testified for the prosecution. 

5. The prosecution case was that the applicant and Chan acted together in a joint enterprise to burgle a noodle shop situated in Sai Yee Street.  From this shop they stole the property particularized in the charge and then travelled by taxi to Chan’s flat at 50D Wing Hong Street, Cheung Sha Wan.  As Chan and the applicant were taking the stolen safe to the rooftop of Chan’s flat with the intention of forcing it open there, they were seen by two police officers who were on the rooftop keeping watch on the area.  Chan was arrested on the spot while the applicant was able to escape. 

6. At trial the only issue was whether or not the applicant was involved in the burglary and was the Chinese male carrying the safe who escaped from the police.  In order to prove that he was, the prosecution relied on the oral evidence of the two police officers who intercepted Chan and witnessed the escape of his accomplice, the fact that the applicant’s fingerprints were found on the safe and the fact that it could be shown from telephone call records that Chan and the applicant were in telephone contact with each other at the time of the burglary.  But, there is no doubt that the prosecution’s main evidence implicating the applicant was the evidence of Chan. 

7. It was an admitted fact that the burglary took place at about 2:08 am.  It was also an admitted fact that at about 3:12 am the two police officers were conducting an anti-burglary observation on the rooftop of 50D Wing Hong Street, Cheung Sha Wan.  They saw Chan walking up to the rooftop.  Behind him they saw a Chinese male who was, they said, wearing a red T‑shirt and holding a safe.  This Chinese male fled before the police officers were able to apprehend him.  The police officers were not able to identify the Chinese male carrying the safe.

8. The safe, which was left behind by this Chinese male had prizing and scratch marks on the sides and on the combination lock.  A subsequent examination of the safe confirmed the presence on the top of the stolen safe of fingerprints of the applicant’s right forefinger and right middle finger.

9. Chan testified that he and the applicant had been acquaintances since early 2012 and that the applicant owed him some money so Chan agreed that they would commit this burglary together and that he, Chan, would take the proceeds of the burglary in satisfaction of the debt owed by the applicant to him. 

10. On 22 March 2015 they went together to Mongkok to identify premises to burgle.  They eventually decided upon the premises at the Ground Floor of No 123 Sai Yee Street.  It was initially agreed that Chan would be the lookout while the applicant would burgle the premises but after Chan had cut the brass padlocks and opened the gate of the premises, the applicant was unwilling to enter inside.  Consequently, Chan entered the restaurant alone and stole from it the property that is the subject of the charge.  He later used his mobile phone to instruct the applicant to meet him at the back door of the restaurant in the rear lane. 

11. They then took a taxi back to Chan’s flat at 50D Wing Hong Street and on arriving there carried the safe up to the flat on the 5^th floor of this building.  There they tried to prize open the stolen safe but without success.  Chan suggested breaking it open with a hammer but said that they should do that on the rooftop in case they created so much noise that they aroused suspicion from their neighbours.  Chan walked ahead carrying the tools with the applicant following behind carrying the safe.  It was then the police appeared.  While Chan was being questioned by the police the applicant made good his escape.

12. All the stolen properties, together with a pair of pliers, two crowbars and a pair of gloves, were recovered from Chan’s flat.

13. There was a CCTV camera installed outside 52 Wing Hong Street. Between 03:07:02 to 03:07:04 hours on 23 March 2015 this camera captured images of two men walking along this street.  The man in front was carrying a large, seemingly heavy bag slung over his shoulder, while the man behind was using both hands to hold onto a large rectangular object against his torso.  It was the prosecution case that these images were of Chan and the applicant after they had burgled the premises at Sai Yee Street.  This CCTV footage became exhibit P4 and the still photos printed from it became exhibit P4A.

14. The telephone records of the mobile phones of Chan and the applicant revealed that between 12:34 am and 3:23 am on 23 March 2015 there were 14 occasions when Chan and the applicant were in contact and 5 of them were in the form of SMS messages.  In the period when Chan was likely inside the burgled premises there were phone calls at 02:23:33, 02:27:34 and 02:43:51 lasting 20 seconds, 7 seconds and 67 seconds respectively.  After this last contact there was no other contact until 03:15:48 by which time Chan was in custody.

15. Chan identified himself and the applicant in the CCTV footage that was exhibit P4 and P4A.  He also explained the phone call records.

The defence case

16. The applicant elected not to testify and did not call any witnesses.  He relied on a paragraph in the Admitted Facts that set out his defence.  This paragraph stated as follows:

“On 2015-05-12, at 1643 DPC 10885 arrested D2 outside his residence at 1507 Chung Tak House Chung On Estate. Prior to arrest, D2 said ‘I did touch the safe but I left instantly and did not take part in when I know that Ah Lap obtained it by committing a burglary.’ After caution D2 said ‘Ah Lap made an appointment with me on that day, I did touch the safe. When I knew that Ah Lap obtained the safe by committing a burglary, I already instantly left. It has nothing to do with me.’ The voluntariness and accuracy of D2’s statements under caution are not challenged.”

The Reasons for Verdict

17. The judge concluded that Chan:

“… gave a full and accurate account of what had transpired in the burglary. I accept his evidence and find beyond any reasonable doubt that D2 had agreed to carry out the burglary of the restaurant.”

18. He reached this conclusion after considering Chan’s frankness of manner as he testified, the details of his evidence and the fact that it was “substantially supported by other evidence.”  Part of the “other evidence” was the CCTV footage that was exhibit P4.  The judge described the images from the CCTV camera in the following way:

“The quality of the image is not good enough to see their faces clearly. The man behind appeared to be wearing a blueish purple T-shirt. At 03:14:51 hours, the same man in the blueish purple T‑shirt was seen walking away in a different direction. This time he was empty-handed.”

19. That footage was consistent with Chan’s evidence that his accomplice was wearing a blue T-shirt but inconsistent with the Admitted Facts which set out what the police officers saw.  The Admitted Facts stated as follows:

“Suddenly, PW2 and PW3 heard a loud noise from the floor below and shortly afterward saw D1 (without any upper garment) and a Chinese male (‘CM’) about 5 feet 7 inches tall of medium build and wearing a red T-shirt walking upwards to the rooftop. D1 was carrying a hammer and 2 screwdrivers and was walking in front of CM. CM was holding a safe, which was subsequently confirmed to be the stolen safe (part of Stolen Property 1).”

20. In his Reasons for Verdict the judge dealt with this inconsistency as follows:

“As shown in the CCTV footage, the man carrying the safe appeared to be wearing a short-sleeved T-shirt in blue colour. D1, under cross-examination, stated that D2 wore a blueish purple T‑shirt whereas, according to the Admitted Facts (MFI-2) the two police officers on the rooftop saw the man behind D1 was wearing a red T-shirt. In my view, this is not an inconsistency. Purple is the mixture of red and blue. It is also a physical fact that all perceptions of colours are a trick of light on the human brain. Different persons perceive colours differently. Colours also change with the quality or colour of the light itself, hence the same object would appear in different colours when seen in sunlight and, for example, in coloured neon light.”

The grounds of appeal

21. In his Amended Perfected Grounds of Appeal the applicant complained that the judge:

(i) erred in law in treating an admitted fact as susceptible to interpretation.  This ground refers to the judge’s resolution in his Reasons for Verdict of what was said to be an inconsistency between the admitted fact and the CCTV footage;

(ii) failed to deal with the applicant’s defence as set out in his response to caution that is contained in the Admitted Facts; and

(iii) erred in failing to consider the inherent incongruities and logical faults in Chan’s evidence.

22. Mr So, who appeared for the applicant both at trial and on this application for leave, relied on his written submission and had little to say in supplement of it.  However, in respect of his first ground of appeal he maintained his argument that the admitted fact meant that the accomplice was wearing a red T-shirt.

23. In respect of the third ground of appeal he submitted that the telephone call records showed that some of the calls were in pairs and it would not make sense for the applicant to be calling Chan if he knew he was then engaged in burgling premises.  Furthermore, by the time the call at 02:43:51 was made the burglary should have been finished and if the applicant was with Chan there would not have been any need to use a telephone to contact each other.  The same point was made in respect of the call at 03:15:48.  Mr So submitted that the judge failed to deal with these calls and yet they impacted upon the question of whether the call records could provide support for Chan’s evidence.

Discussion

24. In respect of the first ground of appeal Mr So’s submission fails to properly understand what was admitted by the admitted fact.  The admitted fact was only that the police officers saw the accomplice was wearing a red T-shirt; not that the accomplice was wearing a red T-shirt.  This admission just meant that the judge could not look behind what it was that the police officers saw and had to accept as a conclusive fact that what they saw was a man wearing a red T-shirt.  However, what the police officers saw was just one of the many pieces of evidence before the judge as to the colour of the T-shirt and the identity of the accomplice.  It did not compel the judge to find that the accomplice was wearing a red T-shirt.  It was for the judge to decide what weight he should give to the fact of what the police officers saw.

25. This is precisely what the judge did when he concluded that this admitted fact did not constitute an inconsistency with the other evidence.  This conclusion was reached through a reasoning process based on common knowledge and common sense and in respect of which I can detect no error.  I do not find the first ground of appeal to be reasonably arguable.

26. The second ground of appeal concerns the judge’s failure to refer to the applicant’s defence.  The only evidence of the applicant’s defence was in his reply to caution which was a mixed statement.  His reply contained an acknowledgement that he touched the safe but a denial that he stole it. 

27. It is true that in his Reasons for Verdict the judge did not advert to this cautioned reply of the applicant.  However, it is clear from the Reasons for Verdict that the judge considered all of the evidence and it was only after so doing, in conjunction with a careful analysis of the witness Chan and his evidence, that he concluded Chan was telling the truth.  Once he accepted Chan as a witness of truth he implicitly rejected the cautioned response of the applicant. 

28. There is nothing in the Reasons for Verdict which would suggest that the judge was unaware of or did not take into account the applicant’s denial of involvement in the burglary.  But, given that it was little more than a bare denial which was unsupported by sworn evidence, it is not surprising that the judge neither gave it any credit nor specifically addressed it.  I do not find the second ground of appeal to be reasonably arguable.

29. For the third ground of appeal it is necessary to properly understand the time line on the night of the burglary.  It was as follows:

02:00:31	:	Chan called the applicant and told him he was inside the burgled premises.
02:08 – 02:13	:	The CCTV of the burgled premises captured images of Chan stealing from the cashier desk.
02:23:33	:	Chan called the applicant (20 seconds).
02:27:34	:	The applicant called Chan (7 seconds).
02:43:51	:	Chan called the applicant (67 seconds).
03:07	:	The CCTV at 52 Wing Hong Street captured images of 2 men, one carrying a rectangular object with his bare hands and the other carrying a large bag on his shoulder.
03:12	:	The police officers mounted an observation from on the rooftop of 50D Wing Hong Street.
03:14	:	The CCTV at 52 Wing Hong Street captured an image of a male, walking, without anything in his hands.
03:20:23	:	Chan called the applicant after he was intercepted by police.  He called the applicant to tell him to come back but the applicant hung up.

30. In his Reasons for Verdict the judge refers to a call at 02:37:34 and says of it:

“D2 called back, D1 told him to meet up at the rear exit.”

31. This is clearly a mistake.  The Admitted Facts make no mention of such a call.  It does mention a call at 02:27:34 but that is only a seven second call and it is one in which Chan calls the applicant.  In all likelihood this is simply a typographical error by the judge.  Whether his description of the reason for the call is an accurate reflection of Chan’s evidence is unclear as that evidence is not before me.

32. However, I cannot see that it impacts upon the judge’s finding that the call records support the evidence of Chan.  The evidence of Chan was effectively that at the burgled premises he and the applicant parted company and met up again after the burglary was completed.  I see nothing incongruous in the fact that Chan and the applicant maintained contact with each other whilst the burglary was taking place.  It must be remembered that there is no doubt that the contacts between Chan and the applicant took place.  The issue is why.  Was it because they were two burglars who needed to stay in touch with each other or were they simply making social calls to each other.  For myself, I would find it would make less sense if Chan was calling the applicant between 2 am and 3 am to engage in social conversations with him whilst he, Chan, was committing a burglary. 

33. The call records show a gap between the call that was made at 02:43:51 and that which was made at 03:15:48.  This is consistent with Chan’s testimony that he and the applicant were together from the time Chan exited the burgled premises to the time Chan was arrested on the rooftop of the building where he lived. 

34. For the phone calls after Chan’s arrest, the Reasons for Verdict would suggest that Chan gave an explanation for these calls, namely that he tried to get the applicant to return.  Without the transcript of Chan’s evidence there is no reason for me to question what is contained in the judge’s Reasons for Verdict.

35. I am not persuaded that is any incongruity in the call records which undermines, or in any way throws doubt upon, the judge’s finding that those records provide support for the evidence of Chan.  I am, therefore, of the view that the third ground of appeal is not reasonably arguable.

Conclusion

36. For these reasons I refused the application for leave to appeal conviction.

37. After announcing my judgment I informed the applicant of his right to renew his application to the Court of Appeal and also of the power vested in the Court of Appeal to order loss of time should he do so and should the Court of Appeal find no merit in his renewed application.