HKSAR v. LEUNG CHAK

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.580
(Criminal)

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

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

J U D G M E N T

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

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

1. The applicant in this matter with two others faced two charges of burglary. He was the third defendant as set out in the two charges. He also faced one charge of remaining unlawfully in Hong Kong. He was convicted of the two burglary charges after trial before District Judge Davies, and he now seeks leave to appeal against those convictions.

2. The facts are set out by the District Judge in his Reasons for Verdict as follows:

"..... two teams of police officers combined in a search for illegal immigrants in the Tai Po area on 1 April 1997. Shortly after 11 am .."

We pause to note that it was 11 o'clock on the morning of 1st April,

"they were proceeding up a pathway in the general direction of a large unoccupied two-storey house called Hon Ka Yuen. When the police sergeant leading them had almost reached the end of the sloping pathway, he looked in the direction of the house and happened to see these three defendants emerging from its entrance. He alerted his subordinates.

They then observed the defendants, each carrying a bag, walk in the direction of a concrete pathway which led further up the slope and which was to the left of the house. Most of the police team followed the defendants and when D3 (the applicant), who was walking ahead of his companions, had climbed the path almost to the point where there was a dilapidated stone hut on his left, he looked back and caught sight of the following police squad. At this stage the police officers shouted to the defendants to stop. D3's reaction was to put down the red, white and blue bag he had been carrying, run a short distance up the path and enter the stone hut.

He was then seen to jump through one of the windows and run off into the trees. However, D3 had been barefoot and injured himself in his efforts to escape. He was, therefore, soon caught by the two officers who had chased him into the trees. D1 and D2, who had been behind D3 and therefore closer to the police squad on the uphill pathway, made no effort to escape. D1 had been carrying a white plastic bag and D2, a black knapsack. Examination of the white plastic bag revealed that it contained a substantial number of coins belonging to different foreign countries. The black knapsack contained a collection of tools.

A red, white and blue large bag that had been carried by D3, contained one large full bottle of Hennessy XO brandy, one large full bottle of Courvesier cognac brandy and two small ornate and partly empty bottles of cognac, one of the Meukow brand and the other of the Carte d'argent Renault brand of cognac.

D1 and D2 were taken back to Tai Po police station, whereas D3 was conveyed by Ambulance to hospital for treatment to his injured foot. At the police station enquiries revealed that bottles of brandy identical to those found in the bag carried by D3 and foreign coins similar to those found in the bag carried by D1, had been stolen on the previous night between the hours of 1 am and 6 am from a residential house in Hong Lok Yuen, Tai Po."

Again, we pause to note those times: "Between the hours of 1a.m. and 6a.m.". The applicant and the other two were apprehended at 11 a.m.

"These items had been stolen, together with five watches, a bundle of red laisee packets containing Hong Kong banknotes of all denominations and two kitchen knives. As a result, D1 and D2 were searched in the police station. D1 was discovered to have a Tag Heuer watch on his wrist identical to one of the stolen watches and D2, a Corum watch, also identical to another of the missing watches. Additionally, D1 had $150 in Hong tong currency and D2, HK$1,692. The five plates found in D3's bag had markings on them which established that they had been removed from the large house called Hon Ka Yuen and from which the defendants had been seen to emerge."

3. He turned then to the consideration of the applicant's interview. He said:

"D3 (the applicant) was interviewed at the hospital. None of the records of interview related to D3 were proffered as evidence by the prosecution on the ground, I understand, that D3 had refused to acknowledge their contents by his signature."

4. He set out the defence case saying:

"Each defendant gave evidence in the trial proper and the version each gave of events is generally consistent with that of his co-defendants. It can be summarised as follows:

There had been four in the group who had made the crossing into Hong Kong on the night of 29 March, the fourth person being a male called Man Bo, referred to also as "Hunan Boy". They had crossed the mountains into Hong Kong, arriving at about daybreak on the 30th. They were then led by Man Bo to the vicinity of Hon Ka Yuen where they stayed in an abandoned hut, the same hut in which they were ultimately found and arrested by the police."

That is not an exactly correct statement of the evidence as the applicant ran through the hut and jumped from it, before being arrested. The other two, it appears, had not yet reached that hut when they were apprehended.

5. The judge went on:

"They have each denied in evidence that they had been observed coming out of the house called Hon Ka Yuen carrying bags of stolen property and that they were followed up the pathway by the police. They have said that the police officers had come upon them while all four of them had been in the hut and that on the entry of the police, D3 and Man Bo had managed to get out through one of the windows and that Man Bo had succeeded in escaping.

With regard to the items of property found, they have each said that they were not aware of the existence of these items until after Man Bo had returned to the hut that morning, having gone out the previous night with the declared intention of visiting a relative with a view to finding them all jobs. Man Bo had shown them two watches and had allowed D1 and D2 to take one each for their own use. This had happened shortly before the police had arrived.

None of the defendants has been able to explain the presence of the five plates in the hut, with D1 saying that while he and Man Bo had been into Hon Ka Yuen house on the previous day, he had not taken anything and had not seen Man Bo do so."

6. The judge went on:

"... it seems clear from the evidence of PW1 and PW2, the owners of the property at Hon Lok Yuen, that considerably more Hong Kong currency in laisee packets had been stolen than had been recovered, possibly as much as $6,000 more. And also that as many as three expensive watches were also not recovered, namely a Bon Emercier(?) watch, a Concord diamond encrusted watch and a Casio Baby-G watch."

The judge then turned to what he characterized as the "primary issue" saying:

“The primary issue is plainly one of credibility. Is there any reasonable doubt that these three defendants were observed leaving Hon Ka Yuen house on the morning of 1 April in possession of bags containing items of property which had recently been stolen from a house in Hon Lok Yuen and plates taken from Hon Ka Yuen house itself?

If there is no such doubt then I am satisfied that the doctrine of recent possession applies to this case. It would then follow that their possession of the items calls upon each of them for an explanation and if I am sure that such an explanation is untrue, I am entitled to infer that one or more of these defendants was guilty of stealing these items. I remind myself that the evidence against each defendant is to be considered separately and in respect of each offence."

7. The judge then went on:

"Having considered all the evidence in this regard and the criticisms of counsel, I have no doubt that these three defendants were observed leaving the entrance of Hon Ka Yuen and that they were each carrying a bag. D1 had, in fact, two white bags, no doubt one inside the other in order to support the large number of foreign coins which were inside. They were apprehended after D3 had turned and spotted the police following close behind. He ran into the hut and jumped through the window in an effort to escape. The others put up no struggle."

8. He said, finally:

"I do not believe that these items came into their hands in the way they have claimed. The version each gave is untrue. I am satisfied that the prosecution have proved that each of the defendants was a party to the theft of these items and is accordingly guilty of burglary. I find all three defendants guilty on both charges."

9. There is only one ground argued today by Mr. Kelly, who appears for the applicants, and that is that the judge failed to consider whether the applicant might have been guilty of handling stolen goods as an alternative to burglary. He submits that as the evidence for both these offences was the same recent possession, the judge could not have been sure which of the two offences the applicant had committed and that he should, therefore, have acquitted the applicant on the first charge.

10. The argument advanced by Mr. Kelly is succinctly put in the seventh paragraph of his written argument as follows:

"In finding the applicant guilty of burglary the learned trial judge erred as he could not be sure that the applicant was guilty of burglary as the possibility that the applicant was merely a receiver of the stolen property could not be excluded nor in the absence of any other relevant evidence could the learned trial judge be sure that the property had not been stolen by the applicant in circumstances other than is the course of the original burglary."

11. We turn then to consider that submission.

12. The applicant admitted that four persons had come together from China on the night of March 29th. A burglary had occurred in the early hours of the morning of 1st April. The applicant and the other two offenders were apprehended at 11 a.m. on that morning. The burglary had then taken place some five to ten hours before their apprehension.

13. The judge understandably in our view had no hesitation in rejecting the evidence that one of the four who had come from China had gone off on the pretext of visiting a relative, had committed a burglary, had returned to the hut with the property stolen from the Hong Lok Yuen house and had then distributed part of it, without explanation, to the other three. This was a wholly incredible story which was, we are satisfied, properly rejected.

14. There was more, however, for the judge to consider. There were the five plates. These, it was established, had been stolen from the large unoccupied house out of which the applicant and the other two had been seen coming with their bags of loot. There was no explanation advanced at all as to how these plates came to be in the possession of the applicant. It was, of course, their story that they were apprehended in the hut by the police but this was not believed.

15. The trial judge had evidence that three of a party of four were found decamping with some of the proceeds of two burglaries. One, it seems, had been committed a matter of minutes before, and the other a few hours before. Having rejected the thoroughly incredible story that was told by the applicants, i.e. that one of their number had committed the first burglary and then distributed the proceeds, the judge was, we are satisfied, entitled to draw the inference that he did. This was, in our view, a classic case for the application of the doctrine of "recent possession". There was the clearest evidence from which the inference of involvement in both burglaries could be drawn. There is no merit in the application and it is, therefore, refused.