HKSAR v. DASANAYAKE ADIKARI APPUHAMILAGE SUJEEWA

CACC431 /2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 431 OF 2003

(ON APPEAL FROM DCCC NO. 790 OF 2003)

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JUDGMENT

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Hon. Yuen JA (giving the judgment of the court):

1. On 26 September 2003, the Applicant was tried in the District Court (before Whaley, D.J.) on a charge of burglary.

2. On 29 September 2003, the Applicant was found guilty and was sentenced to 3 years imprisonment.

Application for leave to appeal refused by single judge

3. The Applicant sought leave to appeal against her conviction. Leave was refused by Hon. Stuart-Moore V-P on 17 March 2004.

4. The Applicant did not renew her application within the 14-day period prescribed by rule 42(3) of the Criminal Procedure Rules, Cap. 221.

Application for extension of time to renew application

5. On 28 April 2004, some 4 weeks out of time, the Applicant sought an extension of time to renew her application.

6. In considering whether the Applicant should be granted an extension, it is relevant to examine the explanation she has offered for the delay and her chances of success in the renewed application.

Explanation for delay

7. The only explanation the Applicant has offered for the delay is that she had written to her sister (who lives in Sri Lanka) for advice whether she should renew her application. The Applicant says that by the time she received her sister's reply, the 14-day period had already expired.

8. It has not been suggested that the sister is a legal adviser and the Applicant did not need to obtain her advice before she could decide for herself whether to renew the application for leave. Accordingly the explanation proffered by the Applicant is not a reasonable excuse for the delay.

Chances of success

9. Of course, the more important consideration for this court is the Applicant's chances of success in the renewed application. If the Applicant had a good chance of success, the court would be more likely to grant an extension despite her delay. Does the Applicant have a good chance of success?

Agreed Facts

10. It was common ground at the trial that the Applicant had been employed as a domestic helper by a couple Mr & Mrs Hung, at a house in Fairview Park, Yuen Long. The employment lasted a period of 6 months, from January to July 2002. The Applicant's employment was then terminated. The Applicant filed a claim against Mr Hung in the Labour Tribunal alleging underpayment of wages. The claim was settled in early October 2002 when, by consent, Mr Hung paid a sum of $6,000 to the Applicant.

11. It was also agreed at the trial that on 24 February 2003 at about 12:25 pm, the Hungs' new domestic helper had left the house unattended. Before leaving the house, the new helper had locked the front door and the fence of the backyard, but she did not lock the iron grille and door at the back of the house.

12. It was also agreed that when Mr Hung returned home at 1:45 pm that day as a result of a call from the management office, he found the front door had been unlocked and the iron grille and back door open. The house had been ransacked and a number of items stolen.

Prosecution case

13. The case against the Applicant centred upon the evidence of the Hungs' next door neighbour, Madam Leung. She gave evidence that at about 12:20 pm that day (24 February 2003), she first saw the Applicant in her garden. She recognised the Applicant as she (the Applicant) had worked for the Hungs for some 6 months the year before.

14. Madam Leung's evidence was that she asked the Applicant what she was doing in her garden. The Applicant did not reply but left her garden.

15. Madam Leung's evidence was that after that, she saw the Applicant climb over the Hungs' backyard fence and enter the house. She called out to ask if Mrs Hung was at home but received no response. Subsequently, she saw the Applicant walk away hurriedly from the Hungs' house. After she discussed the incident with her husband, he reported it to the management office. Between the time she saw the Applicant leave and Mr Hung's return, she had not seen anyone enter or leave the Hungs' house.

16. Mr Hung reported the burglary to the police. The Applicant was arrested a few months later.

Trial

17. At trial, the Appellant was legally represented. Madam Leung gave evidence, as did the Applicant.

18. The judge found the Applicant guilty and sentenced her to imprisonment for 3 years.

19. The Applicant is now seeking an extension of time to renew her application for leave to appeal both conviction and sentence.

Grounds of appeal against conviction

20. The Applicant's grounds of appeal against conviction are, briefly as follows:

(1) Mr Hung had owed her wages and therefore falsely accused her of theft;

(2) Madam Leung gave false evidence against her because she did not like her;

(3) since she (the Applicant) knew the combination of the lock of the backyard fence, she would not have needed to jump over it;

(4) since she knew that the Hungs' child would be going to school by bus at 12:30 pm, she would not have chosen to burgle the house at that time;

(5) her fingerprints had not been found.

21. We are not persuaded that the Applicant has a good chance of success in showing that the conviction was unsafe or unsatisfactory.

Ground 1 - false accusation of theft by former employer

22. First, the Applicant claims that Mr Hung had owed her wages and therefore falsely accused her of theft.

23. There is nothing in this point. It was an agreed fact that the Hungs' house was burgled and that property had been stolen. Mr Hung's oral evidence at trial focussed on exhibiting photographs of his house and garden, and he did not give any other testimony that tended to inculpate the Applicant. Therefore any unhappiness between Mr Hung and the Applicant as a result of her claim against him (which in any event, had been settled some 4 months before the burglary) was irrelevant.

Ground 2 - false evidence from next-door neighbour

24. The evidence that did implicate the Applicant came from the next-door neighbour Madam Leung. The judge considered this evidence carefully. He recognised the fact that she was an elderly lady, but found that she was clearly in possession of all her faculties and he was impressed by her evidence. He found her to be alert, a good witness and that she gave her evidence well and was unshaken in cross-examination.

25. There was no question of mistaken identity as the Applicant had admitted at the trial that the two had met almost daily during the 6 months that she was working for the Hungs the year before.

26. It is the Applicant's allegation now that Madam Leung gave false evidence simply because she did not like her. This suggestion that an elderly lady with no interest in the matter would come to court and perjure herself, simply because she did not like an ex-employee of a neighbour, can only be described as outrageous. There is nothing to support such an allegation, save that the Applicant has said in her grounds of appeal that when she was employed by the Hungs, Madam Leung had never shown her a pleasant face and always spoke to her "in anger". This is contradictory to the Applicant's evidence at trial, when she said that she and Madam Leung would greet each other when they saw each other almost daily.

Ground 3 - choice of entry into premises

27. As for the ground that the Applicant would not have needed to jump over the fence because she knew the combination of the lock, that is neither here nor there.

28. There was no evidence whether the combination had remained the same as at the time of the Applicant's employment.

29. Even if the combination had remained the same, there may have been good reason why the Applicant would have preferred not to have unlocked the fence that way, which would have revealed the fact that the house had been burgled by someone who knew the combination.

Ground 4 - choice of time for burglary

30. It is difficult to understand how the Applicant's allegation that she would not have chosen to burgle the house at 12:30 pm, because the child would be taking the school bus at that time, can be a ground of appeal. If anything, this points to her knowledge of the fact that the house would be unattended at this time.

Ground 5 - lack of fingerprints

31. Finally, the agreed fact that fingerprint examination results were negative does not assist the Applicant. The fact that her fingerprints were not found does not exculpate her when there was clear evidence from Madam Leung that she saw her there, which evidence the judge accepted.

Appeal against sentence

32. Finally, there is the application for leave to appeal against sentence. We can see no grounds for suggesting that the judge erred in principle in imposing a sentence of imprisonment of 3 years for this burglary of domestic premises, and it cannot be said to be excessive.

Order

33. For the reasons stated above, the Applicant has failed to show any good chance of success whether on her proposed appeal against conviction or that against sentence. Her application to extend time to renew the application for leave is therefore dismissed.