R. v. VU DINH-DAI

IN THE COURT OF APPEAL

1992, No 535
(Criminal)

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J U D G M E N T

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Litton, JA:

1. This applicant, Vu Dinh-dai, was originally charged with three offences which occurred on 20 May 1992. In relation to the second charge, the unlawful possession of a knife, he was acquitted. This therefore leaves two charges for consideration. The first charge is attempted burglary, the particulars of which are that the applicant attempted to enter the Venice Fast Food Shop on the ground floor of 53 Yi Chun Street, Sai Kung, with intent to steal therein; the third charge is resisting the police in the execution of their duty, contrary to section 63 of the Police Force Ordinance, this having occurred at the rear of Yi Chun Street, Sai Kung. The offences occurred on 20 May 1992 and after trial in the District Court on 2 December 1992 this applicant was convicted. He now seeks leave to appeal against these convictions.

2. The prosecution evidence was this. Two police constables were on patrol at Sai Kung in the early hours of 20 May 1992. At about 2.10 a.m. near the rear lane of Yi Chun Street they heard a sound of metal upon metal. This was described a "prising" sound. They went to investigate and saw three people, one appeared to be prising open a gate with a metal object and the other was holding a torch. A female stood nearby. PC 48395, one of the police officers, pursued one of the men it was this applicant. This applicant tried to throw him off and there was a struggle. The second police constable came to his assistance and this applicant was subdued. In the course of this the other man - the one holding the torch - escaped.

3. This applicant was taken back to the scene and the police found on the ground a plastic torch and a crowbar. The lock was scratched and there were signs that an attempt had been made to prise open the gate, so the police declared arrest whereupon the applicant tried to break free and in the struggle the police constable and the applicant both fell to the ground. This led to the third charge of attempting to resist the police in the execution of their duty.

4. This applicant was represented by counsel at the trial. A spirited defence was put up and the police officers were thoroughly cross-examined. This applicant decided to give no evidence at the trial. The trial judge accepted the testimony of the police witnesses and convicted this applicant.

5. In his appeal, the applicant says in effect that the police had framed him; he was innocently out in the streets of Sai Kung at 2 O'clock in the morning with his girl-friend; he had previously, in 1990, been arrested and falsely accused and this was a repetition of that occurrence. The applicant also complains of the fact that of the three people at the scene he was the only one arrested. As to the last point this was in fact put to the judge and this was what the judge said:

"As for the second man, the officers said that they had no opportunity to catch him and he was able to escape."

6. Having regard to the behaviour of this applicant and the fact that he needed two officers to subdue him, that the second man escaped is not surprising.

7. There are no grounds whatever to doubt the validity of the conviction. This application for leave to appeal conviction must therefore be dismissed.