HKSAR v. GURMEET SINGH

CACC 329/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 329 OF 2016

(ON APPEAL FROM DCCC NO 318 OF 2016)

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J U D G M E N T

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1.  Following his trial before HH Judge Dufton (“the judge”) in the District Court, the applicant was convicted on 27 September 2016 of a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, and sentenced to 2 years’ imprisonment.

2.  On 24 October 2016, the applicant filed a Form XI Notice applying for leave to appeal against both his conviction and sentence.

3.  At a hearing on 22 March 2017, the applicant was refused bail pending appeal on the merits.  The applicant subsequently sought to renew an application for bail, which, at a further hearing on 9 May 2017, was again refused on the basis that he did not attain the requisite threshold for bail pending appeal in respect of either conviction or sentence.

4.  The test before me today on an application for leave to appeal is somewhat different from the test he must attain in respect of an application for bail.  For a grant of leave to appeal, the applicant must merely show that he has reasonably arguable grounds for appeal against either conviction or sentence.

Issue in dispute

5.  There was no dispute that, on 3 February 2016, the applicant entered as a trespasser into a vacant residential flat on 3/F, No 30 Gillies Avenue South, Hung Hom, Kowloon.

6.  The issue at trial was why the applicant was in the flat and, in particular, whether the prosecution could prove that he had entered those premises in order to steal the items particularised on the charge sheet, namely (i) a rice cooker; (ii) a gas stove; and (iii) two speakers.

Prosecution case

7.  On 3 February 2016, at about 1211 hours, PW1 (one of the security guards of the premises) received a telephone call from his company informing him that there was an intruder inside the flat in question. Accordingly, he immediately went to the premises and noticed that the metal gate of the unit concerned was not secured as previously[1].  He knocked on the door and, when no one answered, he called the police.  He continued knocking on the door, which was eventually opened by the applicant.  PW1 spoke to the applicant in Punjabi dialect and asked him why he had gone into the premises.  The applicant replied that “he just went in like that”[2], and PW1 informed him that the police were on the way.  The applicant then returned inside the flat and closed the door.  Initially in his evidence, PW1 said that when the applicant opened the door again he was holding a few boxes, although he was later to say that he could not remember whether the applicant was holding or carrying anything.

8.  At some stage, two police officers had arrived at the scene and, having established that the applicant understood Cantonese and having made preliminary enquiries as to what he was doing in the flat, conducted a search on him, as a result of which they found in the rucksack he was carrying a purple recycle bag containing one pair of gloves, one can of WD40 lubricant oil, five screwdrivers, three torches, two pairs of pliers and one crowbar.  The applicant was asked the purpose of the tools, but he lowered his head and did not answer.  In a blue plastic bag he was holding were found the gas stove and two speakers, while in a paper box was the rice cooker.

9.  The applicant was duly arrested and cautioned, whereupon he replied in Cantonese: “I took the stove, rice cooker and speakers from the table inside the flat for my own use.  I saw there was no one inside the flat therefore I went in there to take them.”[3]

10.  In a video-recorded interview conducted between 2145 hours and 2217 hours on the same day, the applicant chose not answer most of the questions posed, merely stating that there were two doors inside the flat[4], and that he had arrived at the flat at about 1130 hours that day[5].

Defence case

11.  The post-record of the applicant’s answer to caution and his subsequent record of interview were the subject of challenge as to admissibility.  The applicant elected to testify in relation to both the special and general issues but called no other defence witness.  He said he was not cautioned at the scene; neither did he say anything to incriminate himself after his arrest.  He was induced by the police into confirming his alleged confessions, which were recorded in the record of interview.

12.  Whilst accepting that he had no permission to enter the flat in question[6], the applicant testified that he had gone there with his friends to smoke “Ice” on two to three previous occasions.  On one of those occasions, his friends showed him how to open the metal gate by pulling the cable along to release the lock.  On 3 February 2016, he went to the flat alone and opened the lock as before.  He explained that he was there again in order to smoke “Ice”, which explanation was provided to both PW1 and the police officers, although it was not recorded.  As regards the stolen items, he said he had neither seen nor touched the stove or the speakers whilst he was in the flat.  He had not seen (nor was he shown) the rice cooker inside the flat and had no idea where the police had found it.

Reasons for Verdict

13.  The judge said that he was satisfied that the police officers were truthful witnesses.  He found that the post-recorded admission was signed voluntarily by the applicant and he refused to exclude the admission on the grounds of unfairness.[7]

14.  The judge accepted the crux of the prosecution evidence (save those areas to which he attached no weight, and which are discussed below).  The judge rejected the applicant’s evidence, which he found to be incredible for the various reasons he set out.[8]

15.  In assessing the evidence of PW1, who had accepted in cross-examination that he could not remember certain matters clearly through lapse of time, the judge said:[9]

“I am satisfied no weight is to be attached to [PW1’s] evidence in cross-examination that the defendant opened the wooden door for a second time only after the police arrived. The incident having been a long time ago, [PW1] could not remember very well whether the police knocked on the door and asked the defendant to come out. Had it been 1-2 weeks earlier [PW1] would have remembered clearly. [PW1] also said he may have made a mistake as to whether the defendant opened the door for the second time before or after the police arrived.”

16.  Also, the judge said:[10]

“…[PW1] said in examination-in-chief that when the defendant came out for the second time he was holding a few boxes. The discrepancy came towards the end of cross-examination when [PW1] said the boxes were lying on the ground. Earlier in cross-examination [PW1] had twice said when the defendant opened the door for the second time he had boxes with him. On clarification by the court [PW1] repeated that boxes were lying on the ground.

[PW1] clearly had difficulty in remembering what happened when the police arrived. Apart from not remembering whether he knocked on the door or the police knocked on the door and may have made a mistake as to whether the defendant opened the door for the second time before or after the police arrived, [PW1] also could not remember how the metal gate was opened; whether the stove was in a bag; and he could not remember if the defendant was carrying or holding anything when the door was opened for the second time.

[PW1] said he was confused as this was his first time in court; he may not be clear about some things; this was not the only incident of this kind and as the incident was eight months ago / a long time ago, he could not remember very well.

Having carefully considered the evidence of [PW1], I am satisfied no weight is to be attached to this part of [PW1’s] evidence.  I accept the evidence of the police officers that they opened the metal gate and saw the defendant carrying the rucksack containing the tools; the blue plastic bag containing the stove and speakers and holding the rice-cooker.”

17.  Noting the discrepancy between PC 17048 (who was PW4 at trial) that he had made enquires prior to the caution with the applicant (the contents of which enquiries were not recorded in his witness statement) and PC 13769 (who was PW5 at trial) that no such enquiries were made, the judge said:[11]

“These matters do not cause me to doubt the evidence of the police officers. The submission with respect overlooks that on the defendant’s own evidence enquiries were made of him before he was arrested by PC 17048, in particular what language he understood and what he was doing there. The fact PC 13769 did not hear any of these enquiries does not cause me to doubt the evidence of PC 17048.

In any event, in final submission, [prosecuting counsel] said the prosecution do not rely on this evidence as the replies were not made under caution.  The prosecution were right to do so.  Unlike the reply under caution these replies have not been reduced into writing and shown to the defendant for his acknowledgment.  In reaching my verdict I place no weight on this evidence.”

18.  In reaching his verdict, the judge was satisfied that there were no material and significant discrepancies, improbabilities or omissions in the prosecution evidence.  He also considered it immaterial that there was no fingerprint or forensic evidence.[12]

Mitigation

19.  The applicant was 36 years of age and had two daughters who were 8 and under 2 years of age respectively.  Counsel submitted that it was an opportunistic burglary, which took place in an unoccupied flat, and that there were no aggravating features which might call for a higher starting point.

Reasons for sentence

20.  In passing sentence, the judge noted that the basic starting point for a single burglary of residential premises involving a first-time offender of full age was 3 years’ imprisonment.  That said, a lower starting point could be adopted for a burglary of unoccupied premises.  The judge referred to the following appellate authorities:

(a)   HKSAR v Chau Man Ying[13], where the Court of Appeal set aside a sentence of 2 years’ imprisonment in respect of an opportunistic burglary committed in a vacant residential building awaiting development resulting in the theft of property of very low value.  The appellant there had been in custody for almost a year as at the date of the hearing of the appeal, and the Court substituted a sentence which enabled the applicant to be immediately released;

(b)   HKSAR v Lee Chiu Yui[14], where the Court said that “[g]iven the array of housebreaking tools present, and the appellant’s determined and purposeful acts of trespass, a starting point of 2 years’ (and an ultimate sentence of 16 months’) imprisonment would have been appropriate”[15]; and

(c)    HKSAR v Shea Pat Chi[16], referred to in HKSAR v Lee Chiu Yui, where, in respect of a burgled building which was vacant and valuable property unlikely to be found in any of its units, the Court upheld a sentence of 2 years’ imprisonment after trial as not being manifestly excessive.

21.  Although rejecting the submission that the burglary was opportunistic, the judge nevertheless accepted that the stolen items were of little value.

22.  In the result, the judge passed a sentence of 2 years’ imprisonment.

Grounds of appeal

23.  In his homemade grounds of appeal attached to the Form XI, the applicant stated that there was insufficient proof that the stolen items were in his possession at the time of arrest.  He also complained that the sentence imposed on him was too severe, given that the value of the stolen items was low.  In view of the number of witnesses testifying at trial (7 prosecution witnesses and himself as the only defence witness), the applicant asserted that his case “need(s) another consideration” by a judge sitting in the High Court.

24.  In his written submissions filed on 22 February 2017, the applicant outlined his background and how he claimed the circumstances leading to his arrest had unfurled.  He asserted that it was untrue and improbable that he was carrying the stolen items when the police arrived.  He highlighted various discrepancies within and between the testimony of the prosecution witnesses.  He further attached a copy of the defence closing submissions (which is already included in the Appeal Bundle), asking the Court to reconsider the arguments afresh.

25.  In a further letter to the Court dated 14 June 2017, the applicant has articulated six grounds of appeal, which cover much the same ground that he has earlier identified.

Respondent’s submissions (re: conviction)

26.  Mr Derek Lai, on behalf of the respondent, submits that the circumstantial evidence against the applicant was overwhelming; the applicant was caught red-handed in a place where he was not entitled to be with stolen property in his physical possession; and he made a confession to the police.  Accordingly, the only reasonable inference to be drawn from all of the evidence was that the applicant had burgled the premises in order to find what he could to steal.

27.  Mr Lai also submits that the judge was alive to the discrepancies within the prosecution witnesses’ testimony and properly addressed them in his Reasons for Verdict.

Respondent’s submissions (re: sentence)

28.  The respondent argues that the sentence of 2 years’ imprisonment was in line with relevant case authority for this type of burglary offence, which the judge properly considered in his Reasons for Sentence.  Accordingly, the sentence was neither manifestly excessive nor wrong in principle.

Consideration

29.  The appeal against the judge’s findings in this particular case is essentially an attack on his assessment of the evidence and his findings of fact.  Whilst points can obviously be made about the evidence and various discrepancies between the witnesses, the judge engaged in a very careful evaluation of those matters, concluding that ultimately they did not matter.  The judge accepted the essentials of the evidence that the applicant was found inside premises where he had no right to be, that he was carrying tools fit for house-breaking, that he was in possession of items of property which did not belong to him, and in respect of which he made an unequivocal admission of theft.

30.  Conversely, he rejected the applicant’s evidence.  That was hardly surprising, since, although the applicant had chosen to answer the caution and admit theft, he never mentioned anything about entering the premises in order to smoke “Ice”.  Moreover, no instruments for the smoking of “Ice” were found anywhere in the premises.  The judge rejected the allegation by the applicant that he had effectively been framed up by the police, who had falsely accused him of possessing house-breaking implements as well as stolen property.  Furthermore, the absence of fingerprint evidence was neither here nor there.

31.  This was a case where the facts and the credibility of the witnesses were eminently for the trial judge to determine. Mr Lai is right to remind the Court of the principles engaged where an appeal on fact is mounted.  In HKSAR v Chiang Lily and Others[17], the Court held:

“Principle on challenge to finding of fact

38. Chiang’s challenge is on the Judge’s findings of fact. According to the well-established principle, an appellate court would not lightly interfere with this finding unless it is plainly wrong. As observed by Bokhary PJ in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336,

‘The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to it correctness.’

39. This principle was recently repeated in HKSAR v Egan (2010) 13 HKCFAR 314 where Ribeiro PJ stated that:

‘194. It is well-established that an appellate court should be very slow to interfere with credibility findings made by the primary judge but that, if it can be shown that the findings are plainly wrong, such interference is mandated’.”

32.  I do not consider it to be reasonably arguable that the trial judge’s conclusions of fact and credibility in this case were “plainly wrong”.  Indeed, an appellate court may well conclude that the judge’s findings were unassailable in the context of circumstances that were overwhelming, and which included a full confession to entering the premises in order to steal.  I can see no reasonably arguable grounds for appeal against conviction.

33.  As for the appeal against sentence, the judge rejected the notion that the burglary was opportunistic.  Given the fact that the premises had been broken into and unlawfully entered, coupled with the possession by the applicant in his rucksack of house-breaking tools, such a finding was entirely understandable: see HKSAR v Lee Chiu Yui (above), at para 10.

34.  The judge fully appreciated that he was passing a sentence well below that which would have been merited in respect of the burglary of occupied domestic premises.  He considered relevant authorities and determined that 2 years’ imprisonment was appropriate after trial.  Given the authorities to which he adverted, I can see no reasonably arguable ground of appeal in relation to the appeal against sentence.

Conclusion

35.  The application for leave to appeal against both conviction and sentence is refused.  I have now explained to the applicant at this hearing, as well as at two earlier bail applications, that the evidence against him seems to have been overwhelming and that he has neither reasonably arguable grounds of appeal nor, in the context of a bail application, any realistic prospect of success in either his appeal against conviction or sentence.

36.  Accordingly, I now advise him that he has the right to renew either application for leave to appeal to the Court of Appeal, but, in view of my remarks, he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of his application.