HKSAR v. MAGAR ABIR SERPAJA

CACC 437/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 437 OF 2012

(ON APPEAL FROM DCCC NO. 688 OF 2012)

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DECISION
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Hon Yuen JA:

1.  The Applicant Magar Abir Serpaja (the 1^st Defendant in DCCC688/2012) was charged with 1 offence of burglary. He was charged together with the 2^nd Defendant of entering premises in Hung Hom as trespassers and attempting to steal therein.

2.  The prosecution alleged that on 16 May 2012 at about 4:30 pm, a workman working at a garage in Hung Hom saw someone at a rear lane climbing into the 1^st floor flat of a building through a window.  He called the police. 

3.  The police arrived soon after and guarded the front and rear of the building. 

4.  The police also contacted the agent of the building owner.  The building had been acquired for redevelopment.  The 1^st floor was unoccupied but there were metal pipes in the walls of the kitchens and bathrooms.

5.  The police officer who was sent to investigate saw, through a gap between the wall and the latched door, the 1^st defendant inside the premises.  He was holding a hammer and was wearing gloves.  The police officer told him to open the door and the 1^st defendant put down the hammer and opened the door.

6.  A water pipe cut from a wall was found in the kitchen sink. 

7.  The 1^st defendant gave evidence.  He said the 2^nd defendant (whom he had met at a games centre some years ago) asked him to help take an air-conditioner.  They took a taxi to Hung Hom, where he followed the 2^nd defendant into a rear lane. 

8.  He saw the 2^nd defendant climb a pipe to reach the 1^st floor of a building.  The 2^nd defendant then passed a ladder down through a window and asked the 1^st defendant to climb up.  He said the 2^nd defendant pulled him up through the window and inside the premises. 

9.  The 1^st defendant said the 2^nd defendant then went off somewhere in the building, and he was left waiting for the 2^nd defendant for some 1½ hours.  He denied he was holding a hammer or wearing gloves when the police arrived.  He said he opened the door for the police but they forcefully put the gloves on his hands.

Reasons for verdict

10.  The trial judge gave detailed and thorough reasons for verdict.  He rejected the 1^st defendant’s evidence that he did not know that he was committing a crime. The judge held that when the 1^st defendant saw the 2^nd defendant gain access through climbing a window in the building, he must have realized that something very suspicious was going on.  That was even more so when he saw the 2^nd defendant pass him a ladder so that he could also climb in through the window.  The judge disbelieved the 1^st defendant when he said he was not holding the hammer and was not wearing gloves.  The judge found the 1^st defendant guilty as charged.

Sentence

11.  The judge sentenced the 1^st defendant to 2½ years imprisonment.  That is the usual sentence for burglary of non-domestic premises.  

Application for bail pending appeal

12.  The Applicant has applied for leave to appeal against conviction and has now applied for bail pending appeal.

Principles

13.  The court has a discretion in deciding whether to grant bail pending appeal.  However that discretion has to be exercised applying principles of law.

14.  Bail pending appeal is usually only granted where it appears prima facie that the appeal is likely to be successful.  

Discussion

15.  The 1^st defendant has not provided any grounds of appeal at all.  What he has said in court this morning was simply a repetition of his case which the district judge had rejected.  There is nothing in the judge’s Reasons for Verdict that indicates the conviction is unsafe or unsound.  The Applicant has failed to show prima facie that his appeal is likely to be successful.    

Order

16.  The application for bail pending appeal is therefore dismissed.