HKSAR v. NG WAI HING

CACC 621/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 621 OF 2002

(ON APPEAL FROM DCCC 588 OF 2002)

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J U D G M E N T

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The applicant was convicted in District Court before Judge Whaley on 2 charges, namely, burglary and assault with intent to prevent lawful apprehension. He was sentenced to imprisonment for 3 years for the burglary and 4 months for the other offence, to run concurrently. He now seeks leave to appeal against both conviction and sentence.

2. The particulars of the burglary charge were that on 19 April 2002 he entered as a trespasser into part of a building known as room 509, the Metropole Hotel, 75 Waterloo Road, Kowloon with intent to steal there. The particulars of the second charge were that he assaulted Fang Tian-zheng, with intent to resist or prevent the lawful apprehension of himself for the offence of burglary.

3. Before the Judge, both Mr Fang and the applicant gave evidence. Mr Fang's evidence was to the effect that on 18 April 2002 he, a tourist guide, checked into room 509 of the Metropole Hotel together with a member of the tour group, Mr Ma. Mr Ma went to bed first. At about 2 am on 19 April 2002, after Mr Fang had checked that the doors and the windows of the room were all closed he switched off the lights and went to bed. Later on, he was awoken and he saw a hand searching amongst the clothe-hangers in the cupboard. The cupboard's automatic lighting was on. He reached out to the next bed to find that his roommate, Mr Ma, was in the bed. His roommate asked who it was, whereupon the intruder opened the room door and started to leave. Mr Fang immediately jumped out of bed and ran after the intruder. When he reached the door, it was not fully shut, but was in the process of closing. When he got outside the room, he saw the intruder about 2 to 3 metres ahead of him in the corridor running away and the intruder was the only person in the corridor. He gave hot pursuit and eventually he caught the applicant. During the hot pursuit, he had struggles with the applicant to prevent him from escaping and the applicant assaulted him.

4. The applicant's evidence was that he was looking for a person on the 5th floor of the hotel, at room 521, but he could not find that person. He ended up at the entrance to room 509 when Mr Fang and his roommate Mr Ma came out in haste. Mr Fang and Mr Ma then grabbed hold of him and punched him. The applicant struggled with them in the corridor and managed to wriggle free and ran down the corridor. Mr Fang then chased him for sometime before the he gave up. The applicant's case was that he was mistaken to be the burglar.

5. A number of grounds of appeal are raised mainly to challenge the Judge's acceptance of Mr Fang's evidence as being honest and reliable. A couple of grounds allege that the Judge's non-acceptance of the applicant's evidence was incorrect. What the applicant has told me today is to the same effect.

6. I have examined the Judge's reasons for conviction. He analysed the applicant's evidence carefully and came to the conclusion that he was not a truthful witness. On the other hand, he found Mr Fang's version could be relied upon as an honest and reliable account of what transpired. As I see it, none of the grounds of appeal has been able to cast doubt on the correctness of the Judge's decision or to persuade me that the conviction was unsafe or unsatisfactory. I have come to the conclusion that the applicant is bound to fail in attacking the conviction. I refuse to grant leave.

7. As far as sentence is concerned, the only ground of appeal that can be considered is that the Judge treated the hotel room as domestic premises in imposing the sentence of 3 years' imprisonment on the applicant. The applicant argues, as did his counsel before the Judge, that the hotel room should be categorised as non-domestic premises for sentencing purposes. The Judge said:

"It is true that a hotel is not a home - it is different from people's homes - and also true that the guests have to pay for their accommodation, so that they are commercial in that sense. However, in my view, the hotel has more in common with domestic premises than non-domestic premises for the purposes of sentencing and the purposes of the guidelines. A hotel is after all intended to be a 'home away from home' for travellers, and the victims were sleeping in what they thought was the security and safety and comfort of their own bedroom at the time, which is quite different from commercial premises in the normal sense of that term."

8. I am in agreement with the Judge's view that the hotel room in which Mr Fang and Mr Ma were sleeping should be treated as domestic premises for the purposes of sentencing. However, as this point has not been a subject of decision by a full panel of the Court of Appeal, I think it should be considered and dealt with by that Court. For this purpose and for this purpose alone, I grant leave to the applicant to appeal against sentence.

9. I remind the applicant that he is entitled to renew his application for leave to appeal against conviction, which I have refused. However, I warn him that if he does so, the Court of Appeal has power to order a loss of time if it finds that his application is unmeritorious.