HKSAR v. LAI HON KONG

CACC 601/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 601 OF 1998

(ON APPEAL FROM DCCC 976 OF 1998)

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J U D G M E N T

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Stuart-Moore J.A. (giving the judgment of the Court):

1. On 26th November 1998, the Applicant was found guilty of burglary by Judge Wright following a trial in the District Court. The Applicant received a sentence of two years and three months. He now applies for leave to appeal against conviction and sentence and he is out of time on the latter application.

2. The charge related to 29th June 1998, and was particularized in this way, namely that the Applicant, having entered as a trespasser part of a building, known as Sunshine Delicatessen, ground floor, No.390, Hennessy Road, stole therein 196 packets of cigarettes, a safe containing cash $74,000, US$100, $500RMB and a Hang Seng Bank Mastercard.

3. The prosecution's case against the Applicant was that he had left his fingerprint on a green box from which money was stolen in the course of the burglary and that on the same day he paid $20,000 into his bank account.

4. In his grounds of appeal, the Applicant principally complains that the prosecution evidence from all eleven witnesses called was neither safe nor sound. The Applicant says he had given an explanation for a fingerprint on an exhibit found at the scene of the crime which the judge, he complains, ought to have accepted. Furthermore, the Applicant believes that some of the fingerprint expert's evidence was dubious. Additionally, a number of witnesses had given evidence about the strength of a false ceiling in which it was possible, on the evidence, for a burglar to have hidden behind. The Applicant's point is that it would have been impossible for him to have hidden in the false ceiling because of its flimsy construction. He believes that the judge was misled by some witnesses who said that it would have been possible for the Applicant to have hidden in there. He complains also that PW1's evidence was "incredible" as to what was missing after the burglary and that the judge also criticised aspects of that witness's evidence. The Applicant believes that it was "sinister" that the charge, which originally stated 29th July 1998 as the date of the burglary, was changed to 29th June 1998 at trial. He points out that on 29th July 1998, he had deposited $76,000 into his bank and he wonders if that is why the wrong date was originally chosen.

5. The judge, in his detailed Reasons for Verdict, went with care into his assessment of the witnesses, and also into what he termed the "unusual features" that led to contradictions and inconsistencies in some of the evidence given by prosecution witnesses. The Applicant was quite right in saying the judge found PW1 to be unimpressive as a witness. The judge dealt in some detail with the evidence about the false ceiling which, according to some witnesses, would have been unable to support the Applicant's weight.

6. None of the material raised by the Applicant was overlooked by the judge, who concluded in the end that there were a number of important points in the case against the Applicant which he was able to accept. These are set out at page 12 in the Appeal Bundle. The judge found that the green box was kept in the left-most drawer; its purpose was to store surplus till amounts as well as other moneys removed from the day's takings; the green box had not been placed in a position which would have afforded the accused access to it at any time; when PW4 went off duty in the early morning of 29th June, that box was in the drawer; the premises were secured for what was left of the night by PW6; some three hours later, when the premises were re-opened, a quantity of property was found to be missing from the restaurant; it was also found that the green box was no longer in the drawer but, out of it, on the lower level of the cashier's area; on the green box there was the Applicant's fingerprint; later the same day, an amount of $20,000 in cash was paid into the Applicant's bank account.

7. The judge then concluded by saying:

"At the end of a trial a Court may only draw an inference if it is the irresistible inference which may be drawn on the proven facts. On the facts I have related I cannot see what inference I am able to draw other than that the Accused was in the premises between approximately 4 a.m. and 7 a.m. on 29th June; that, as such, he would have been trespassing and that he stole from those premises."

8. This conclusion was reached after the judge had earlier described the Applicant as a bad witness whose explanations for the fingerprint on the box he rejected. The judge had also rejected the Applicant's account as to how he came by the money which was paid into his bank.

9. Taking all of these matters into account, we are able to say that there was nothing in the grounds settled by solicitors on the Applicant's behalf which have been shown to us by the Applicant in the documents we have been able to read this morning. They carried no more weight than the grounds settled by the Applicant himself.

10. In court the Applicant has added that he was not happy with prosecuting counsel saying to the judge that he had a previous conviction which was recorded twenty years ago. There was a reason why the record of the Applicant was referred to. The Applicant's fingerprint was on record. That is how he was identified as the culprit. It was obviously a matter of fairness that the court should know that the conviction was twenty years ago and, furthermore, that it was a matter of very little significance. The sentence had been a bind-over order. The judge regarded the conviction as having no importance. He regarded the Applicant as a man effectively of previous good character.

11. There is no merit in any of the grounds which the Applicant has put before us and this application must be dismissed.

12. So far as the application regarding sentence is concerned, no valid reason has been provided for the late application. On the merits, in any event, it had no substance. We refuse to give leave out of time and that application is also dismissed.

13. As this whole matter has been unmeritorious, we shall order that three months of the time spent in custody shall not count towards the Applicant's sentence.