HKSAR v. CHAN KWOK CHOI

CACC 365/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 365 OF 2002

(ON APPEAL FROM DCCC 243 OF 2002)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the Court):

1. The applicant was convicted in the District Court by Deputy Judge Mackintosh of the offence of burglary. He was sentenced to three years and six months' imprisonment. He now seeks leave to appeal against conviction.

Facts

2. According to the finding by the judge, in the early hours of the morning of 12 January 2002, two police officers were patrolling at a back alley at Tai Kok Tsui Road in Mongkok. They heard some suspicious noises from one of the shops in the alley. They asked for reinforcement. Together with the other police officers who arrived, they waited in the back alley to see if anyone would come out from the shop. They waited for over two hours until about 5:30 a.m. when the steel door from the rear of the shop opened and the applicant came out. The five police officers who were waiting in the back alley then stopped the applicant and arrested him.

3. The shop from where the applicant came out was an amusement arcade ("the shop"). The evidence revealed that the burglar had climbed up to the flat roof area of the shop. He cut through the steel lattice covering the backyard underneath and lowered himself into the backyard. He then made a hole through a piece of rusty steel sheet and the wall and got himself into the shop itself. After the theft, the burglar did not go back through the hole on the wall. Instead, he cut the lock of the door between the shop and the back yard and he carried everything to the back step. Then he cut the lock on the back door and opened it. The prosecution's case is that the applicant was the burglar and it was at this point he was arrested by the police officers waiting outside.

4. Some drawers in the shop were forced open. Money was stolen. They were coins contained in bags, totalling HK$15,565.00. The game machines were also forced open and the game tapes and game controllers were removed from the machines.

5. At the back gate of the shop, a number of articles were found. They included bolt cropper and a hydraulic jack (these two items did not belong to the shop). The coin bags were also found at the back gate. The stolen game tapes and game controllers were also found in a yellow plastic bag. The game tapes were worth HK$11,000.00 each and a game controller was worth HK$25,000.00. Also, found near the back gate was a rucksack which contained tools and equipment and a torch and also a bank card and a telephone book belonging to the applicant.

6. After the applicant was arrested he was taken to a police vehicle parked near the back alley. The police officers conducted a search of him. The applicant told the police that the car parked in front of the police vehicle was his. A search was conducted of the applicant's car. A crowbar and some large cutters were found at the boot of the car. While inside the police vehicle, the police examined the contents of the wallet of the applicant. The wallet and the contents were returned to the applicant after the search.

The defence's case

7. The applicant admitted that he was arrested by the police on that morning. He, however, denied that he was arrested at the back alley. He said that he was arrested at a nearby street. At that time, he was picking up his car. The car had been parked outside a garage the previous day for repair. It was left there after repair because the applicant was playing mahjong and did not want to collect it at that time. He lived only a few minutes away. While he was inserting the key to open the door of the car, he saw a man being chased by the police from the alley into the road. The man managed to escape the chase. The police having lost that man, saw the applicant and grabbed him. The police asked for his name and through the beat radio, they discovered his criminal record.

8. The applicant was then taken to the police vehicle where he was searched and the wallet was checked by a police officer PW2. The wallet was then returned to him. A little later, PW5, a police sergeant, also searched him. The sergeant after sending the other police officers out of the vehicle, threatened the applicant that if he did not admit the offence, he would be framed. The applicant said that he could not admit it because he was not responsible and PW5 then removed a bank card and a telephone book from the wallet and returned to the scene of the crime.

9. The applicant denied that he had put the telephone book and the bank card inside the rucksack. It is his case that the sergeant planted the telephone book and bank card in the rucksack so as to connect him with the crime. When PW5 came back, he took some equipment and planted it in the applicant's car as well. These included the crowbar and some large cutters. After this, the applicant said that he was severely beaten by the police. He fainted. The ambulance came and took him to hospital where he was detained for two days. He did not regain consciousness until he was at the hospital.

Finding of fact

10. This is a case where there is a conflict between the prosecution's and the defence's evidence. The judge accepted the prosecution's evidence and rejected the evidence of the applicant. He rejected the allegation of framing and planting of incriminating evidence by the police officers.

11. A trial judge, after evaluating the evidence, is clearly entitled to decide which version he will accept. He has the benefit of observing at first hand how the evidence is being given and the demeanour of the witnesses. Unless the finding of fact is manifestly wrong because it is against the weight of the evidence or that the judge had failed to consider some material evidence, the Court of Appeal will not interfere with his finding of fact.

12. In this case, this is exactly what the judge had done. He accepted the evidence of the prosecution and rejected the defence's case. In a carefully considered judgment, he gave reasons why he said the prosecution had proved its case against the applicant.

Judicial neutrality

13. The first ground of appeal raised by the applicant is that the judge did not maintain a position of judiciary neutrality. He failed to consider the inherently improbable nature of the prosecution's case and he simply dismissed the defence's case without justification. It was said that the judge had wrongly made assumptions and from these wrong assumptions he gave unjustified support to the police's version of events.

14. The judge disbelieved the applicant's evidence that the man who came from the alley could escape the chase of the police officer. He stated that :

“ It involves the assertion that five police officers, having waited in ambush for a lengthy period in this relatively narrow alley, were unable to stop the man who came out of the doorway when he would have to go round the door to escape. He was not expecting the police to be there. The police would have known he was about to come out and they would have been ready to pounce. Yet, according to the defendant's account, they failed to get hold of him, I find such a possibility to be unbelievable."

15. The evidence showed that three police officers were waiting outside the back door at a distance of about 15 feet, while two other police officers were also waiting at the distance of 15 feet on the other side of the door. We accept that a person could escape from the chase of five police officers. It depends on the speed and the distance between them. We did not, however, consider that the judge had made any assumptions in the sense that since the police officers were waiting in ambush for the man that eventually came out from the back door they would catch him as a matter of course. The judge obviously had considered and accepted the evidence of the police officers about the arrest. What the judge tried to convey was simply that at that time the applicant was obviously taken by surprise when he opened the door and confronted the police officers. On the other hand, the police officers were prepared and were ready to apprehend the applicant. It makes the applicant's allegation that the man still managed to escape less credible. In our view, there is nothing in this so-called "assumption theory".

Inherent improbability

16. The applicant complained that the prosecution's case that burglary tools were found in the boot of the car and the applicant's personal telephone book and bank card were found among his burglary tools in a burglary tool bag was inherently improbable. The defence asked why would a solo-burglar in such a well planned burglary leave his bank card and personal phonebook in such a manner. Further, why would he, upon being arrested, voluntarily direct the police to his car when there were burglary tools in the boot of the car? Further, these incriminating pieces of evidence were not drawn to the attention of the applicant when they were discovered.

17. In respect of the car, it is clear that the applicant did not suddenly tell the police officers that the car in front of the police vehicle was his. This came about when the police officers discovered a number of keys in the search of the applicant. He was asked what the keys were for and he said they were his car keys. He then indicated that the car in front was his. We do not see it was inherently improbable that the applicant would tell the police of his car, even though there might be burglary tools inside. After all, by then he was already caught at the scene of the crime.

18. As to the bank card, PW2's evidence was that when he searched the wallet he found that there was either a bank card or some bank cards. He could not recollect clearly on this. However, the bank card was not among the items listed as Prisoner's Property which was prepared by another police officer two days after the arrest of the applicant. The argument was that if a bank card was in fact found by the PW2 at the time of the arrest and yet did not appear in the list, then it supported the applicant's case that PW5 had taken away this card and planted it in the rucksack in order to connect the applicant with the burglary.

19. It is clear from the judgment that the judge had carefully considered the question of the bank card. The judge said that either another card was in the wallet but was removed prior to the list of properties of the prisoner being made or PW2 was confused about the card. Even if there was no evidence to support this reason, clearly, there was sufficient evidence for the judge to rely on the second reason. It was common ground that an Esso privilege card which was of the same size as a bank card was also found in the wallet. But PW2 when he gave evidence about the cards he had found in the wallet did not refer to this Esso privilege card. PW2 was further able to say that a torn or split bank card (the card found in the rucksack had this characteristic) (Exh. P24) was not among the cards he had seen in the wallet. On the evidence presented, clearly, the judge was entitled to find that PW2 had confused the Esso privilege card for a bank card. After all, the content of the wallet was returned by PW2 to the applicant. He did not keep a contemporaneous note of the contents and the trial took place seven to eight months after the event.

20. PW3, who observed the search by PW2 said that the wallet contained a Visa Card. The judge found, as he was entitled to, that this must be a mistake. There was actually no Visa Card found. While PW3 agreed that the bank card that was shown to him in evidence was similar to the one he had seen in the search and of the same colour, yet he said he had not seen the Esso privilege card which was accepted by the prosecution and defence to be one of the items in the wallet. In the circumstances, the finding of mistake by PW2 is not in any way undermined by the evidence of PW3 who obviously was also mistaken about the content of the wallet due to the lapse of time.

21. Further, while there was some confusion on the evidence of the bank card, both PW2 and PW3 maintained that no address book was found in the wallet. On such evidence, the judge was clearly entitled to find that the address book and the bank card found in the rucksack of the applicant were not originally inside the wallet of the applicant and they were not planted by PW5 at the rucksack. We did not see that there is anything inherently improbable about these two items being found in the rucksack. No matter how meticulous a plan may be, there is clearly room for mishaps.

22. Mr Haynes, counsel for the applicant, referred us to a number of cases, including the decision of this Court in HKSAR v. Pak Po Wah [1998] 4 HKC 632, where we emphasised that in a case which depends on the credibility of the prosecution witnesses and the applicant, the court must resolve the discrepancies in the evidence of the prosecution witnesses before concluding that they were truthful and reliable witnesses.

23. This is in fact what the judge had done. His finding was that the discrepancy in the evidence was due to the mistaken impression of PW2 that there was a bank card in the wallet. Once this matter was resolved, the judge could clearly find that the evidence of the prosecution's witnesses is truthful.

Other evidence

24. The tools found at the boot of the car and the contents of the rucksack were not shown to the applicant. In our view, this does not lend any credence to the allegation by the applicant that the incriminating evidence was planted.

25. It was also submitted to us that tests had shown there was an absence of contact evidence between various exhibits and the applicant, there was also an absence of the applicant's fingerprints on the yellow plastic bag containing some of the stolen items and that the applicant's DNA was not found on a glove at the scene. Further, the owner of the shop said that apart from coins, there should be some one hundred dollar notes as well. However, no hundred dollar notes were found on the applicant.

26. It was accordingly submitted that if the prosecution's case had been properly analysed, then the above matters were consistent with the applicant's account that he had not directed the police to his car, that there was only one bank card and that he was a victim of police malpractice.

27. It should be pointed out that the tests that had been carried out for contact evidence referred to above were only in respect of textile fibres, if any, transferred between, among other things, the rucksack and the applicant's clothing. No tests were carried out looking for the presence of items such as soil and dust from the premises in the applicant's clothing.

28. While the presence of contact or forensic evidence may incriminate a defendant, the absence of such evidence does not necessarily mean that he is not guilty of the crime if there is other evidence pointing towards his guilt. It is not necessary to speculate on the reasons for the absence of such evidence. As to the absence of hundred dollar notes, the judge's finding was that the owner's evidence was less than certain on this point. This is something that the judge was clearly entitled to do.

29. We do not find the judge to be partial or biased towards the prosecution. There is no substance in the first ground.

Reversed burden of proof

30. The second ground of appeal is still concerned with the bank card and the address book found in the rucksack of the applicant. The applicant complained that the judge had failed to reconcile the variations in the evidence of the police officers concerning the search of the bank card. It is claimed that the differences in the evidence are impossible to reconcile. On this we had already been pointed out that in respect of the evidence concerning the bank card, the most probable answer is that PW2 was confused about the description of the card that he had found in the wallet.

31. It was argued that the judge had in effect reversed the burden of proof when he suggested that the applicant had thrown away the bank card while he was in the hospital. While there is no evidence that the applicant had thrown away the bank card, this is only one of the reasons given by him on this issue. Based solely on the evidence of the prosecution, the judge was clearly entitled to come to the view that the police officers had been mistaken about the bank card. He did not reverse the burden of proof.

32. It was also submitted that the judge was wrong to suggest that if the sergeant had indeed intended to plant evidence on the applicant, he could have planted the wallet in his rucksack. While it is not necessary for the judge to deal further with the "planting theory", we did not consider that this point undermines the soundness of the decision in the light of the evidence that was presented.

Lack of contact evidence

33. The third ground of appeal is concerned with the lack of contact evidence in the scene of crime. We have already dealt with this matter earlier. No doubt the absence of contact evidence is consistent with the applicant's claim that he had not entered the scene of the crime, nonetheless, the judge is entitled to convict if he was satisfied with the evidence of the prosecution on the arrest of the applicant. As observed by the judge, the police witnesses account of events followed a logical and natural sequence; there was no hint of exaggeration and their evidence did not give an impression that they were motivated by malice or a desire to cover their own mistakes. The judge was satisfied that the police officers were giving "honest recollections of events, unembellished and unvarnished reports of what they saw and heard". This is despite extensive cross-examination of their evidence by defence counsel at the trial. This was a finding open to the judge.

Indulgence to prosecution's case

34. The fourth ground of appeal is a repetition of the complaint that the judge had failed to analyse properly the prosecution's case and his attitude was biased in favour of the prosecution. The evidence relied upon in support of this contention was in respect of the bank notes and the evidence concerning the checking of the applicant's criminal record by the police officers.

35. We have already dealt with the question of the bank notes earlier. As to the criminal record, the applicant had a long history of criminal convictions. Between 1977 and 1999, he had seven convictions, namely possession of instrument fit for unlawful purpose, loitering, handling stolen goods, attempted theft, going equipped for stealing and robbery. The criminal convictions were also revealed at the trial. It was conceded by the defence that it had cast imputations on the character of the prosecution witnesses and the applicant had lost his shield of protection. The judge considered that it was appropriate to take into account the previous convictions in determining the applicant's credit as a witness. But the judge clearly was aware that the convictions did not establish the present allegation against the applicant either by reference to tendency or disposition or otherwise.

36. As to the manner of discovery of the applicant's criminal records, the judge had dealt with the conflict in the prosecution's evidence. PW2's evidence was that it would have been easy to discover the defendant's criminal record. On the other hand, PW5 said that it was impossible to obtain such a record over the beat radio. The judge recognised this discrepancy but nonetheless come to the conclusion that the discrepancy did not undermine the evidence of the police officers, because he accepted PW2's evidence that no one had tried to ascertain the criminal record of the applicant at the scene of the arrest. We will not interfere with a judge's rejection or acceptance of a particular piece of evidence and his finding of fact when there is no indication that the decision was faulty. There is no substance in the suggestion that he was biased.

Lurking doubt

37. The fifth ground of appeal is that by a combination of these various grounds there is a lurking doubt as to whether the applicant had actually entered the burgled premises, or handled the tools and the stolen property. In view of our rejection of the other grounds of appeal, we do not find that there is any lurking doubt in this case.

Conclusion

38. Accordingly, the application for leave to appeal against conviction is dismissed.

39. Before leaving this appeal, we would like to draw attention to certain comments contained in the Applicant's Skeleton Submissions criticising the judge for not maintaining "a position of judicial neutrality" or being "biased". These are strong words to use in relation to a judge's conduct of a case. Where there is material to justify such submissions, counsel is of course expected to advance his client's case accordingly. Where, as in the present case, they are not justified and merely used to support arguments that the judge did not correctly analyse the evidence, we find their use unacceptable.