HKSAR v. DINH NGOC BI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 515
(Criminal)

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J U D G M E N T

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Nazareth Atg CJHC (giving the judgment of the Court) :

1. The applicant, Dinh Ngoc-bi, was charged with burglary contrary to s.11(1)(b) and (4) of the Theft Ordinance (Cap. 210). He appeared before His Honour Judge Wilson in the District Court on 16 September 1998 and was convicted and sentenced to 2 years imprisonment after trial. He now seeks leave to appeal against his conviction.

2. The particulars of the charge are that the applicant and another person on or about 24 May 1998 at Yuen Long, having entered as trespassers a building known as Wo Kee Metals Company, stole therein one metal handcart, 300 kilogrammes of copper plate and 200 kilogrammes of copper wire.

3. Mr Chan, PW2, lived next to this metals company. His bedroom was on the first floor of his building and overlooked the company premises. On 24 May last year, at about 3 o'clock in the morning he was awakened by noises. He looked out of the window and saw a man inside the metals company, throwing objects on to the pavement outside. He watched the man for about 20 minutes. He decided a burglary might be in progress. He telephoned the police and told them if they came quietly they might catch the thief.

4. When the police arrived they were not able to spot anyone. They searched the area and eventually found the other accused person, charged with the applicant. He was the 1st defendant. He pleaded guilty.

5. Mr Chan looked at the 1st defendant and said he was not the man he noticed from his bedroom window in the metals company. Shortly after that, the police found the applicant hiding inside a bush a few yards from the metals company. He was lying on the footpath and had arranged foliage or grass in an apparent attempt to cover himself. Next to him was a hole cut in the wire mesh enclosing the company building and nearby was a heap of metal ware which had been thrown out from the company. There was a handcart which came from the company. Nobody else was found in the vicinity.

6. The applicant being Vietnamese, the police at first could not communicate with him, but they confronted him with Mr Chan, who at once said the applicant was the man he had seen throwing metal ware from inside the company to the outside.

7. The items found on the pavement were identified by the owner of the company. The owner also said the hole in the wire mesh had not been there before that night and that some metal cutters belonging to his company had been moved about inside. He also said he had seen the applicant some months before when he came to sell some scrap metal.

8. Mr Chan's evidence was that he had observed the applicant for some 20 minutes before telephoning the police during which time he saw his face from time to time. Although it was night time there was street lighting nearby which afforded reasonable light. The applicant, he said, was wearing a distinctive T-shirt with horizontal stripes. Mr Chan said that he had been struck by the T-shirt, and in additional to that, he was adamant that he identified the applicant from his face and general appearance. A photograph exhibited showed in the judge's view the bedroom window as being only a matter of a few feet away. Other photographs showed the street light and the general area. The judge took the view that it was apparent that Mr Chan's window was close to the scene of the burglary and afforded a good view of the metal company.

9. The applicant gave evidence that he normally resided at Pillar Point Camp but that night he went to sleep on the roadside as he did not fancy going home. He said he pulled foliage about him for shelter as he had no shirt. He was surprised to be awoken by the police and knew nothing of any burglary. As he was bare chested and felt cold someone had given him the striped T-shirt to wear and he was identified in that way by Mr Chan and wrongfully accused.

10. The judge was satisfied that the applicant had been identified by Mr Chan as the man he saw inside the company throwing metal ware to the outside. He pointed out that it was the early hours of the morning, no persons were about and that Mr Chan was a convincing and unshaken witness. He accordingly was satisfied beyond reasonable doubt that it was the applicant who had broken into the company and that he was guilty of the burglary.

11. In his application for leave the applicant simply stated that he did not participate or have any knowledge about the case. When the police arrested him he was sleeping and that he was not present at the scene. Before us today, he complains that there was no identification parade. He says that even if he did commit the offence there should have been forensic evidence that he was at the scene but there was none. He says he is Vietnamese. He was working nearby, was tired and slept there. The police had arrested him wrongly and that some Hong Kong residents committed the burglary, not him. The judge, he says, took a view of his previous convictions and found him guilty.

12. Nothing in his written notice or what he has said to us today leads us to doubt the judge's finding. He was perfectly entitled to convict the applicant, and on the strong evidence before him, it is difficult to see what other possible conclusion he could have come to. There is plainly no merit whatsoever in the grounds relied upon by the applicant. Accordingly the application is dismissed.

13. Since there is no merit whatsoever in the application, we order that a period of three months during which the applicant was in custody will not count towards his sentence. The result is that he will serve three months in addition to the period under his sentence.