HKSAR v. KONG WAN WAH

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 582
(Criminal)

-------------------------------------

----------------------

J U D G M E N T

----------------------

Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant, Kong Wan-wah, appeared before Deputy Judge S. Chow in the District Court on 26 August 1997 on four charges. The first was attempted theft. The second was possession of dangerous drugs. The third and fourth charges were of burglary. He pleaded guilty to the first and second charges but contested the latter two charges of burglary. He was found guilty of the latter two after trial. He was sentenced to 4 months for the attempted theft charge, 2 months on the dangerous drugs charge and to 31 months imprisonment on each of the burglary charges; all the terms of imprisonment to run consecutively, making a total of 4 years. He now seeks leave to appeal against conviction on the 3rd and 4th counts, that is the burglary offences, and also leave to appeal against sentence.

2. In his original notice of appeal dated 11 September 1997, he relied upon two grounds in support of his application for leave to appeal against conviction. But later in January 1998 he sent in further written grounds, embodying his two original grounds and two additional grounds. The first of these is that there was no direct evidence in this case to prove that he really did commit the two offences.

3. Before we come to address his grounds, it is necessary to outline the facts. In the morning of 5 May 1997 two security guards were patrolling at Tsui Ping Estate and noticed the applicant standing on a protruding part of the external wall of Flat 107A, Tsui Wing House. They saw him putting his hand into the flat through an open window and withdrawing it shortly afterwards. He then attempted to leave. They chased after him with the assistance of a third security guard and apprehended him. The police then arrived and arrested him. It was the insertion of his hand into the window that resulted in the first charge of attempting theft.

4. Having arrested him, the police searched him and they found upon him a package of white powder and two blue tablets. The powder turned out to be 0.58 grammes of a mixture containing 0.05 grammes of heroin hydrocholoride and the two tablets to contain 37 milligrams of midazolam maleate. These became the subject of the second charge of possession of dangerous drugs.

5. The police, after searching him in the course of that day and the next day, took four statements from him. In these statements he admitted to the police two burglaries, also in Tsui Ping Estate, one on 25 January 1997 and the other on 30 January 1997. In those statements he gave detailed accounts of how he had obtained entry, what he found on the premises, what he had taken and, indeed, in respect of the second, that he had not found anything worth taking. These were cautioned statements. After being cautioned yet again, he went with the police to the Estate, and pointed out the particular flats he had burgled.

6. The occupants, whom the police were thereby able to contact, confirmed one that he had been burgled and the other that her flat had been ransacked. The details they gave tallied significantly with what the applicant had said in his statements.

7. At his trial the applicant challenged the statements, claiming that they had been beaten out of him. He also mentioned his mental state. What he meant has become clearer to us today when he claimed to have had severe withdrawal symptoms while in police custody. Reverting to the statements and his challenge, after a voir dire, the Deputy Judge found they were voluntarily made and admitted them in evidence. We have to say, having reviewed the judgment, that the judge was clearly entitled to take the view that he did, and to admit those statements given the incredible nature of some of the features of the applicant's version of the events which he gave in challenging the admission of the statements and the judge's view of his demeanour.

8. We turn then to the applicant's grounds which he relies in support of his application for leave. The first is that there was no direct evidence to prove that he committed the two offences. If by that he means there is no direct evidence of the burglaries by witnesses who actually saw him commit them, then that is right. But there is ample evidence which, if accepted, would support his conviction. By that, we mean his admissions in his statements and the statements of the victims, which as we have said tallied in significant features with the contents of his statements, and the fact that he pointed out the position of the flats. As we have said, the judge was entitled to accept those statements, and if accepted, they amply support the two offences.

9. The second ground he relies upon, is formulated in these terms: "In this case, I was charged based on what I wrote on the cautioned statement. During the trial, I gave evidence for numerous times that the cautioned was not taken by me on a voluntary basis. Yet, the judge neglected this point and me guilty. That was extremely unfair to me." More or less in the same terms in his second communication, he merely referred to his involuntariness and, again, repeated that the judge neglected the point and convicted him.

10. The judge did not neglect the point as we have already said. He devoted pages to consideration of the evidence bearing upon the statements. He ruled them admissible. Having considered all the evidence, he rejected the applicant's version. In doing so, he also referred to the applicant's demeanour. We can see no reason to fault his acceptance of the cautioned statements.

11. The applicant's next ground is that there were discrepancies between the evidence of PW1 and that of PW2 and indeed also that of PW3, all three being police officers. That evidence, he says, pertains to his being brought to the lift on the 16th floor of Tsui Chung House. But he says, that the evidence of the second and third prosecution witnesses did not completely mention the travelling by lift to the 16th floor of Tsui Chung House. He expresses the hope that this Court would scrutinise the point. He says he lodged a complaint with the Complaint Against the Police Office requesting them to retrieve the closed circuit video tapes. He renewed that complaint again before us today. We will return to that aspect of it concerned with the tapes.

12. It is apparent from the judgment of the judge that he did indeed consider an aspect of the discrepancies of the witnesses concerned with different floors but he found that the discrepancy was not significant. We cannot ourselves see any significance in possible discrepancies concerning which floor of Tsui Chung House were visited.

13. We turn then to the last point which was that the lawyer from the Legal Aid Department who represented him did not try his best to defend him at the trial; in particular that he did not emphasise to the judge that he was a drug addict and consequently what his mental state was after arrest. This, he says, conduced to the judge's overlooking the need to assess his mental situation.

14. His main complaint against his lawyer is that he asked his lawyer, he says, to obtain from the Housing Authority the tapes of the closed circuit television cameras which, he says, were present in the building. It may be that there were such tapes, and just possibly that they had been preserved. We do not know. What could be gained from them is not clear to us. It would seem that the applicant hoped to establish from the tapes that he did not visit the buildings which the police witnesses in their evidence claimed he did when he took them to the flats in question. That would require a negative to be proved. It does not seem to us that this point raised at the somewhat late stage at which legal aid would in the normal way have been secured would now warrant intervention. We do not think intervention upon such remote possibilities to reverse the judge could in any way be warranted in the face of the very clear evidence and findings of the judge.

15. It remains to mention that although it is not apparent from the reasons for verdict whether the lawyer did inform the judge of the applicant's mental state, it is plain that the judge could have been in no doubt whatever that the applicant was a drug addict. We cannot see that any withdrawal symptoms would have led the judge to come to a different conclusion.

16. In those circumstances we find nothing of merit in the application for leave to appeal against conviction and we dismiss it.

17. Turning to the application for leave to appeal against sentence, in his original notice, all the applicant said is this:

"On each of the charges [the burglary charges], I was sentenced to 21 months imprisonment consecutively. I now make an appeal against sentence. Since I do not have any similar conviction record and my present sentence is relatively severe compared to the sentence of similar cases, I sincerely hope the judge would consider my request for appeal against sentence."

18. Before us today, he says, the sentences are severe; other defendants are not subject to such heavy sentences. He refers to some cases of a lighter sentence in the District Court which we do not have before us. This Court has repeatedly pointed out that particular sentences in other cases are irrelevant; it is principles, guidelines and tariffs that count. He points out that the burglary offences were committed in domestic premises and contends that for a burglary offence in domestic premises a sentence of 3 years after trial is proper. In fact, the proper sentence would be higher. The position is that the starting point for a single offence by a first offender of full age in domestic premises is 3 years, but such sentence will be enhanced if there are multiple offences, see for instance AG v. Lo Ching-fai (1996) 1 HKC 747.

19. Having noted that the judge also observed that the applicant was not a first offender. While he very properly noted that this did not constitute an aggravating factor, he rightly pointed out that in conjunction with the absence of anything favourable in his background report, it meant that there was nothing that called for a reduction of the usual sentence. He was, therefore, not ungenerous to the applicant in setting each sentence for both offences at 21 months. There were in this case two offences and the judge could very properly have imposed a higher sentence in respect of the second offence. Moreover, the two burglary offences were separate and distinct offences; different premises were involved and indeed different dates. The sentences were therefore properly made consecutive. The judge also very properly had regard to the totality, achieving a total of four years in the way he did. For the possession of dangerous drugs in the circumstances here, he could have imposed a sentence of 6 to 18 months which would not be uncommon, and moreover made it consecutive. Nonetheless it remains a result that is neither wrong in principle nor manifestly excessive.

20. In those circumstances there is no merit in the applicant's grounds for leave to appeal against sentence and this application is also refused.