HKSAR v. CHAN TING KWOK

CACC73/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.73 OF 1999

(ON APPEAL FROM DCCC1271 OF 1998)

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J U D G M E N T

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

1. On 22nd January 1999, following a trial in the District Court before Judge Line, the Applicant was convicted of burglary and sentenced to three years' imprisonment. He received a further sentence of fifteen months, of which six months was ordered to run consecutively for remaining in Hong Kong without authority, a charge which he admitted from the outset. The Applicant now seeks leave to appeal against his conviction for burglary.

2. The burglary occurred at Ha Wo Che Village in New Territories on 5th November 1998. Currency valued at $11,120 was stolen together with a necklace, two rings, a watch and a ball-pen. This occurred while two of the occupants, one of whom (PW1) was 71 years old, and her grandson (PW2), aged 17, were away from the house during the evening. When they returned at 9.15 p.m., lights were on which made PW1 think that her son was indoors. PW1 and PW2 went inside to find that in reality it was a burglar inside who they had disturbed. PW2 saw his face. Within an hour, the Applicant was arrested. The police had been given a description of the suspect. PW2, who was with the police in their search for the suspect, identified the Applicant as the man who he had seen in his grandmother's kitchen.

3. The Applicant had in his possession $8,629.50 in various denominations, and a ring which was the subject of dispute insofar as where and when it was found. PW1 identified it as her own.

4. The Applicant's defence was that he was an illegal immigrant who had crossed the border that day under a lorry. His purpose was to meet his brother-in-law but he walked straight into the police and was arrested. He explained, during his evidence, that the ring in his possession had been given to him by his girlfriend in Shenzhen, and most of the money also. This was to be used in order to undergo medical treatment for tuberculosis.

5. The case hinged upon two main pieces of evidence. The identification of the Applicant by PW2 and the recent possession of the ring identified by PW1.

6. The Applicant in his grounds of appeal complains that the judge unjustly dealt with both topics and, in the result, achieved an unfair verdict. The grounds that he has set out are lengthy but the principle points he makes can be summarized.

7. Dealing first with identification, the Applicant states that he was wrongly arrested and only came to realize what the case was about during the trial. He complains of the procedure adopted for his identification by PW2 at the scene of arrest. He states that PW2 had only had a fleeting glimpse of the thief inside the house and that, after PW2 had seen the thief, there was a gap in time before the suspect was shown to PW2 through the window of the police vehicle. The Applicant wore a striped shirt but part of the description given to police by PW2 was that the burglar was wearing a check shirt. The Applicant also complains that in his evidence, PW2 had said that he saw the burglar's face for two minutes when it could not possibly have been that long. Indeed, as the Applicant points out, the judge agreed with that very point during the trial by saying that it could not have been more than a few seconds before the burglar left the house. The Applicant wonders in his grounds of appeal whether there was a conspiracy between PW2 and the police to mislead the judge.

8. Dealing next with the ring, the Applicant points to doubts over its identification by PW1 on account of her poor eyesight. The ring, he states, had been given by his girlfriend to him bearing an inscription on the inside showing 9999 to mark the purity of the gold.

9. The Applicant also deals in his grounds with the large sum of money found on him which was an issue that arose in the trial because, although a smaller sum than that which was alleged to have been stolen, it was nevertheless a very large sum for a man in his position to be carrying. He points to the fact that the money was, to some extent, in different denominations to the notes PW1 had described as being stolen. A prime example of this is that PW1 said she had one note of $1,000 which had been taken, whereas amongst the money in the Applicant's possession there were three $1,000 notes. He also pointed out that he had less money on him than PW1 said was stolen and complains, in that context, that the judge speculated about possible reasons why this might be so. One of the reasons, the judge had said, was that the Applicant might have an accomplice, and yet in the Applicant's view there was no evidence of any accomplice and considerable evidence to show that there was none.

10. Finally, the Applicant points out that his fingerprints were not found at the scene of the burglary.

11. With the exception of the last point relating to fingerprints, the judge in his Reasons for Verdict had, with the greatest care, sifted all the matters raised in the evidence which have been brought to our notice again through the grounds prepared by the Applicant. The absence of fingerprints is seldom a matter of importance and it is not surprising that there is no reference to this.

12. Nothing of great importance was omitted from the Reasons for Verdict and all the issues which concern the Applicant today were covered with accuracy by the judge, whose mastery of the factual issues cannot be faulted. The Applicant should understand that this court is not here to try all over again the issues which were raised in the case. The trial has already taken place and a retrial can only be ordered if material errors have been made by the judge in his approach to the evidence. No error of approach was made and the assessment of witnesses was a matter for the trial judge who saw and heard them. We cannot assess the witnesses ourselves because we have not seen them. The judge accepted the identification by PW2 despite the inconsistency in the pattern of the shirt. In doing so, he had taken into account the "powerful support" provided by the ring and, to a much lesser extent, the existence of the money in the Applicant's possession. PW1, despite her poor eyesight, identified the ring as having the same pattern as the one she lost. As the judge said in his Reasons for Verdict:

"The pattern is a distinctive one. It is difficult to describe in words."

13. A summary of this carefully reasoned verdict does not do justice to the precision with which each point in the trial was analyzed for and against the Applicant. However, we did earlier say that nothing of great importance was omitted from the Reasons.

14. The Applicant, during the course of this hearing, complained that PW1 had said in her statement that most of the $20 notes which were stolen from her were in sequence and the Applicant claimed that this had not been established in the trial. We called upon Mr. Tam, for the Respondent, to produce the $20 notes which had been exhibited during the trial so that the Applicant could look at them for himself. It turned out that many of those notes were in sequence. There were three separate sequences of consecutive notes.

15. In a case that was overwhelmingly strong, now that we have also had the opportunity of seeing the highly distinctive ring which PW1 had lost in the course of the burglary, this piece of evidence concerning the notes might be described as the final bullet. If the judge had dealt with it in his Reasons for Verdict, it would simply have been another reason for confirming the identification of the Applicant as the burglar. No valid criticism of the judge's verdict has been made out and there is no justification for this court now to interfere with the verdict recorded by the judge.

16. Accordingly, the application is dismissed.