HKSAR v. TUNG KIN TAK

CACC 25/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 25 OF 2000

(ON APPEAL FROM DCCC 995 OF 1999)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 21 January 2000, the Applicant (D1 at trial) was convicted of burglary following a trial before Judge Sweeney in the District Court. D1 pleaded guilty to a second charge of remaining in Hong Kong without authority. Lo Heung (D2) pleaded guilty to both charges at the outset of his trial.

2. D1 now seeks leave to appeal against his conviction on the first charge. He presented no written grounds of appeal but at court today he suggested that there was no evidence of his having admitted to the charge. In the statement he made to police, which was put before the court, he suggested that this was ambiguous, and he further suggested that some of the words which appeared in that statement were not his own.

3. The case was very straightforward. On 17 September 1999, a school tuck shop in Mount Davis Road was broken into at some time after 6.40 p.m. when it was last seen by the school security guard (PW2) to have been properly secured. At 7.00 p.m., as a result of hearing dogs barking, PW2 saw a man attempting to cross the school basketball court. This man was trying to ward off the two watchdogs. The matter was then reported to the police and, after their arrival soon after 7.00 p.m., the burglary was discovered. Cash in the sum of $4,350 was later found to have been taken from the till which had been prised open. The metal grille to the shop and a wooden cabinet inside the shop had also been broken.

4. On 18 September 1999, at 1.10 p.m., police officers on patrol stopped D1 and D2, both of whom admitted having sneaked into Hong Kong illegally. D1 was carrying a bag in which $2,419 were found. D2 was in possession of $2,906. They were arrested on suspicion of remaining in Hong Kong without authority and burglary. D1, in reply to the caution, said to the officer:

"The money was given to me by 'Lo Heung' as my share. It was him who stole. It has nothing to do with me."

5. The two men were then taken back to the police station for further inquiries. A post-record of D1's response to the caution, followed by a record of interview, was made and D1 denied all knowledge of D2 having burgled the school in question. Eventually, however, D1 did admit in a further interview that he had entered the burgled premises with D2 looking for a place, as he put it, "to sleep". D1 stated that, having entered the premises, they were discovered by the two dogs which started to bark at them. Because they were fierce, he fetched a spade from the ground and he fended them off using the spade. Meanwhile, he admitted that he could see D2 forcing open the cash register and a drawer in the tuck shop. The money which came from the till was put by D2 into a white cloth bag. They then left the school and D1 went on to say that they returned to the hillside where D2 opened up the cloth bag and shared the monetary proceeds with him.

6. The judge conducted a voir dire during the trial in which seven police officers, a Mandarin interpreter and D1 himself gave evidence. In the result, the judge admitted the three interview statements and excluded one small portion of one of them for reasons which it is not necessary to go into.

7. In D1's defence, he said that he had sneaked into Hong Kong on 15 September with D2. He went on to admit that he would follow D2 wherever D2 said he should go. They had spent time on the hillside and, after three days, they became hungry. The weather was bad and a typhoon was raging. D1 said that most of the time he spent sleeping when it was not raining and, as far as he knew, D2 had been with him all the time, although it was possible that D2 had left him during periods whilst he was asleep. Although D1 had no watch, he testified that at the time when the burglary took place, which was at 7.00 p.m. or thereabouts on 17 September, he was asleep.

8. Dealing with the events of 18 September 1999, the judge said this:

".... at about midday (D1) woke up. (D2) was there. (D2) gave (D1) a pile of money and said he wanted to treat him to a meal. No, (D1) did not count the money, and if there was to be any balance left over after the meal, (D2) wanted him to buy some fresh clothes for himself. No, he did not ask (D2) where he got the money from and, no, he did not wonder why this person was giving him so much money.

The undisputed police evidence is that a sum of $2,419 was found inside D1's bag. Under caution, D1 was quite categoric that he had brought $630 of that from Shenzhen and that the balance, i.e. $1,789, had been given to him by (D2)."

9. The judge, in his assessment of the defence case, found D1 to be:

"a tricky, evasive and lying witness, prepared to say anything to stay out of prison. He told us in the voir dire that some three or four police officers had conspired together throughout the afternoon of 18 September to beat and pressure him, followed by a coaching session in which they tried to teach him what to say in the cautioned statement. He says, to be sure, the police then spent over four hours extracting this coached false confession from him in the statement itself in the presence of the lady interpreter.

What then is the result of all of this endeavour? Apart from an admission that (D2) had given him 'stolen money', there is nothing here to tie (D1) to this specific burglary offence. It is by and large, to be sure, an exculpatory statement that the police have coached into (D1). I noted also in the voir dire that (D1) had instructed his counsel that the OC case in court, that is Senior Inspector Ng Wing-fai, was present and supervising at the scene of arrest. This allegation was put to PW3 and had caused me to exclude the senior inspector from court at that point. It was only when he himself gave evidence later on that we discovered that Senior Inspector Ng had played no part whatsoever in this case until the file was sent to him in October 1999. This was a typical example of (D1's) scant regard for the truth, as also were his accusations of a dereliction of her duty by the Mandarin interpreter, Madam Ching Man-kei, who denied all of his allegations and who presented as an honest and reliable witness of the truth.

As for the defendant's evidence on the general issues, it is best described as inherently incredible."

10. The judge then gave a short analysis of his reasons for coming to this view before deciding that the Applicant had told the court a pack of lies. In conclusion, the judge found that D1 had "assisted D2 by warding off the guard dogs whilst D2 got on with the job of stealing the money which he subsequently shared with the defendant".

11. There was an abundance of evidence on which the judge could draw the conclusion that D1 was involved in a joint enterprise involving burglary with D2. D1 has attempted, during the course of these proceedings, to put forward the story which he gave to the court below with a number of additions. He appeared to misunderstand the nature of these proceedings which, of course, are not designed for a re-trial of the case.

12. We have no hesitation in dismissing the application.