HKSAR v. HAU PAK KWAN

CACC 172/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 172 OF 2013

(ON APPEAL FROM DCCC 111/2013)

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J U D G M E N T

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Hon D Pang J (giving the judgment of the court):

1. On 14 May 2013, after a trial in the District Court, the applicant was convicted of one charge of ‘burglary’, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He was sentenced by the trial judge (Deputy Judge WT So) to 30 months’ imprisonment. His application for leave to appeal against conviction was first refused by Yuen JA on 31 December 2013. His renewed application for the same was filed on 7 January 2014, and is now before us for hearing.

The Prosecution Case

2. PW1 (Mr Lo) worked as an attendant at the Craigengower Cricket Club (“CCC”). At 10.15 pm on the night of 7 December 2012, he found the applicant outside the rear door of the male changing room holding a card sensor that had been dislodged from its place on the wall.  He confronted the applicant, asked him to leave, saw him walk away and returned to the counter to report the matter to PW2 (Mr Ng), the assistant club manager. 

3. What took place afterwards, up the point of the applicant’s arrest, was as summarized by the trial judge in his Reasons for Verdict:

“4. After a few minutes, PW1 led PW2 to the male changing room and found that the defendant was inside a cubicle of the male toilet. PW2 then stayed there waiting for the defendant to come out. After a while the defendant came out holding a blue‑coloured bag but immediately returned to the cubicle upon seeing PW2. PW2 asked loudly whether he was a member of CCC and the defendant replied in the affirmative. Eventually the defendant came out and was stopped by PW2. A report was made to the police. Inside the cubicle, the said blue-coloured bag was hung behind the door.

6. At about 10:50 pm, police officers including PW4 [PC 3841] and PW5 [PC 54605] arrived at CCC. Upon enquiry, the defendant told PW4 that he was not a member of CCC and had arranged to meet a female friend inside the club. Also the defendant was carrying a black-coloured backpack on his shoulder (Exhibit P1). Upon search, one face mask (Exhibit P2), three gloves (Exhibit P3) and eight screwdrivers (Exhibit P4) were found inside Exhibit P1. The defendant was further asked about the purpose of Exhibit P2 to P4 and he explained that they were used for experiments and decorative purpose.

7. At about 11:00 pm, PW3 [Mr Chan], a member of CCC and the owner of the blue-coloured bag which was hung behind the door of the cubicle, returned to the male changing room after playing tennis. He confirmed that at about 7:00 pm in that evening, he arrived at the male changing room of CCC and put his bag on top of locker no. 946 A (Exhibit P7(31)). He then left for playing tennis. The bag contained a towel, a jacket, a T‑shirt, a pair of shorts, a belt, a pair of socks, a headband, an umbrella, a scarf and a letter in the name of his wife Chan Wai Fong. The bag and all the belongings were returned to PW3 on that evening. A photo depicting them is produced as Exhibit P7(33)(2) to 35(2) and they are the subject matter in this case.

8.  At about 11:40 pm, PW4 declared arrest on the defendant for an offence of ‘Burglary’.  Under caution, the defendant said ‘I did not steal.  I was only here because I have arrangement with friend to meet inside’.”

4. It was an admitted fact at trial that the applicant was caught on CCTV as having entered CCC by its main entrance at 10.05 pm.  It was an admitted fact that he was not a member of the club.

5. Exhibit P6 (comprising two layout floor plans) shows that there were two entrances to the male changing room, namely the front and the rear doors both of which were secured by card sensors.  Members of the CCC had to use their membership cards to go through. The rear door opened out to a passage that led both to the car park and the swimming pool.  Somewhere in the passage was a fire door that led to the streets outside CCC.

The Defence Case

6. The applicant, aged 29 at the time of the trial, was a personal trainer at a fitness club.  As summarized in the Reasons for Verdict, he and his girlfriend gave evidence to the following effect:

12.  …. On the evening on 7 December 2012, he had arranged to meet his girlfriend DW2 at CCC. Neither of them was a member of CCC.  They however did not realise that CCC is reserved for members only.  At about 10:05 pm, the defendant arrived at CCC while DW2 was expected to be there shortly.  He therefore walked around inside the club intending to see whether there would be another entrance that DW2 might use.  He entered into one of the exits and went down the staircase.  He found himself at the back alley where there was a transformer room.  He intended to go back to the foyer on G/F.  At that point in time, he found the rear door of the male changing room and saw that the card sensor had already been detached.  When he was checking the sensor by holding it, PW1 came out from the male changing room by the rear door.  PW1 then signaled him to go towards the direction of a fire door.

13.  When the defendant found the fire door, he entered into the male changing room.  Before he left, he went into a cubicle.  At that juncture, PW2 came and asked him out.  He never said that he was a member of CCC.  Nor did he come out with a blue‑coloured bag.  After using the toilet, he came out with his backpack on his shoulder.  PW2 then asked him to stay for the police.  When he went into the cubicle, the blue-coloured bag had already been hung behind the door.  He had no intent to steal and he just intended to meet his girlfriend for a chat inside the club.

14.  The gloves and face mask found inside his backpack were being left there after a reunion visit to his high school several weeks prior to the incident.  On that occasion, he carried out some simple experiments involving PH papers and Bunsen burners.  The screwdrivers were tools used for fixing tiles at his friend's apartment.

15.  At about 10:30 pm in that evening DW2 arrived at a tram stop in Happy Valley.  She received a call from him asking her to wait; however he had never turned up.  Later she received another call from him saying that he was at the police station.”

The Trial Judge’s Analysis

7. The judge dismissed the applicant’s account as wholly unbelievable.  For example, it was the latter’s claim that he did not realise that the CCC was a private club, albeit that he had been inside its premises on two previous occasions.  The judge stated:

“25. Indeed the defendant agreed that he had met PW2 on the second occasion during which he was asked if he was a member. This would plainly put him on alert that CCC is a private club. It is inherent improbable that he still believed that he might be entitled to enter the club freely. In cross‑examination, it was suggested to him that there was a yellow notice sign showing the characters ‘members only’. His first answer was that there was not such sign. However when Exhibit P5 was played in court which clearly showed the presence of that sign and the security guard at the main entrance, he retreated and said he was not aware of that sign ….”

8. The judge also explained why the applicant’s explanation for wandering about the club premises at the material time to be incredible:

“26. He said in his evidence that the reason why he walked around was to see if there was another entrance that DW2 might use. His evidence was in direct conflict with that of DW2 who said that they were to wait at the tram stop. If he wished to ascertain the number of entrance, he could have asked any of the staff instead of wandering inside the club. In this regard, the evidence of DW2 also contradicted the assertions made by him under caution.”

9. Those were well-reasoned conclusions, fully justified, and so were the judge’s comments on the issues of the damaged card sensor, Mr Ng’s alleged attitude and the content of the applicant’s black colour backpack:

“27.  He explained that when he found himself at the rear door of the male changing room, the sensor had already been damaged.  He held the damaged sensor as he saw the notice next to the socket and intended to see how he could open the door.  The notice as shown in Exhibit P7(21) clearly stated that “please use your membership card to unlock the door”.  By then, the defendant must have known that he was not allowed to go in without a membership card.

28.  When he was stopped by PW2 outside the cubicle, he felt that PW2 was disrespectful to him by pushing his chest and he was anxious to see DW2.  He also said that his mobile had gone off a number of times and some missed calls recorded.  However according to the evidence of DW2, when she was waiting for him at the tram stop, she once received a call from him telling her to wait.  By the time when the call was made, he had already been apprehended by PW2.  If he had already contacted DW2, there was no basis for his alleged anxiety to meet her at the foyer at all.  Furthermore if he found that PW2 had unreasonably and violently treated him, he could have made a complaint to any police officer present during the investigation.  He however confirmed in his evidence that he did not voice that out to any police officer.

29.  I also find that his explanation as to the gloves, mask and screwdrivers found inside his backpack incredible.  If the gloves and mask had been used in any laboratory experiments, however simple, everyone would appreciate the risk of contamination.  Even if he did not appreciate such risk, it is inherent improbable that he would keep those used items as a kind of souvenirs and carry them with him.  He also said that the screwdrivers were tools bought for removing tiles for his friend’s apartment in Water Street Sai Wan and he was only involved in the first day of work.  After removing the tiles, he should leave the tools behind for his friends to continue the decorative works.  Again, it is wholly unbelievable that he would carry so many screwdrivers with him at the material time for no reason.”

10. The judge did not however stop there. Correctly, he stated that:

“31. Having rejected the defence evidence, the burden remains on the prosecution to prove every element of the offence beyond a reasonable doubt.”

11. He went on to say:

“32. I find, as a matter of fact, that when the defendant entered into CCC, he must have realized that it is a private club reserved for members only and he was not allowed to enter. As suggested and explained by PW2, anyone could find a way to the rear door of the male changing room through the passage in the carpark and the back alley without the need to present a membership card. I am sure that this was exactly what the defendant did. At the rear door, when PW1 asked the defendant to leave, he said that the rear door was closing slowly whilst he went to make a report to PW2. As confirmed by PW1, there was no report of any malfunctioning of the card sensors securing the main and rear doors of the male changing room at the material time and the fire door was secured by a fire alarm which would go off if anyone pushed to open. I therefore find that the defendant must have gained entry into the changing room via the rear door. The defendant did come out from the cubicle twice and he was seen by PW2 that he was holding the blue bag. Under those circumstances, the only reasonable irresistible inference is that the defendant entered into CCC as a trespasser with the intention to steal the personal belongings of the members inside the male changing room of CCC.”

This Application

12. The applicant listed five “appeal grounds” in his Form XIII (Notice of Renewal of Application after Refusal by the Single Judge) dated 6 January 2014.

13. Grounds 1 and 2 concern the trial judge’s finding that the applicant had knowingly trespassed into the CCC.  It is pointed out that the CCTV recording shows the applicant’s entry to have been unchallenged by the guard guarding the main entrance.  It is maintained that the “members only” sign at the door had escaped the applicant’s attention. Referring to his second previous visit, it is said that Mr Ng had omitted to inform the applicant that no visitors were allowed in the CCC, albeit that he did ask if the applicant was a member of the club. 

14. Ground 3 argues that as Mr Ng was outside the toilet cubicle and asking questions, it was inherently improbable for the applicant to have come out with the blue colour bag, retreated immediately upon seeing Mr Ng and then re-emerged with only his black colour backpack.  The fact that the blue colour bag contained no valuables makes that suggestion even less likely.  Ground 4 maintains that ultimately retrieved from behind the cubicle door, the blue colour bag could have been misplaced by other members using the male changing room.

15. Ground 5 points to a discrepancy between the evidence of Mr Lo and Mr Ng.  It was the former’s account that the applicant had come out of the toilet cubicle only once, then carrying his black colour backpack.  Mr Ng, on the other hand, testified to not only two exits but that Mr Lo was present during the first exit when the applicant was holding the blue colour bag.  It is allegedly a discrepancy that the trial judge did not and could not properly resolve.  It puts in question whether Mr Ng had fabricated part of his evidence to strengthen the case against the applicant. 

16. Ground 5 is elaborated in a letter of 9 June 2014 headed “The applicant’s Submissions”.  In it is the reference to three cases all of which are about unresolved discrepancies between witnesses: HKSAR v Sun Fook Kong Construction Limited, HCMA 298/2009; HKSAR v Chan Kwok Yee, CACC 276/2006 and HKSAR v Lau Kwong Yan, HCMA 1475/1996.

Discussion

17. Very little needs to be said about the applicant’s trespassing.  The judge’s analysis on the point is unassailable.  The fact that the applicant was not challenged upon entering CCC at the main entrance was explained by Mr Ng’s evidence[1]:

“I believe the security guards would – they will try to memorise the faces of members. And if they find anyone suspicious, they would check the identity of those persons or that person.”

18. There is nothing inherently improbable about Mr Ng’s version of events.  His watching the toilet cubicle meant that the Applicant was trapped.  The Applicant had to leave the cubicle to begin to have the chance of extricating himself.  It could be that he thought he could talk his way out.  It could be that he thought in the event of a search, the content of blue colour bag would pass him off as someone having bona fide use of the changing room.  It could be that he recognized Mr Ng’s face (but not his voice) and was shocked into immediately retreating into the cubicle upon his first exit.  It could be that in the end, he thought it best to rid himself of what could be proved as a stolen item and left the blue colour bag in the cubicle.  There is a myriad of explanations to the Applicant’s action all of which are plausible.

19. On the discrepancy between Mr Lo and Mr Ng’s evidence, the following passages in the Reasons for Verdict are relevant:

“17. …. The primary factual dispute is whether the defendant came out from the cubicle twice and he was holding the blue bag at the first time as alleged by PW2 ….

18. In cross-examination, PW1 said that he saw the defendant coming out from the cubicle with his own backpack once only. He was not told by PW2 that the defendant had come out earlier with the blue bag. PW2 however said in his evidence that when the defendant came out with the blue bag, PW1 was there. It was submitted by the defence that PW2 fabricated the first ‘coming out’ event so as to strengthen the evidence against the defendant as he was biased. The allegation of bias was based on an earlier encounter between the defendant and PW2 at CCC which happened in about half a year prior to the incident. The earlier encounter was that PW2 met the defendant at the male toilet. Having aware of recent reports of theft cases at CCC, he asked the defendant whether he was a member. The defendant then rushed out of CCC but PW2 failed to stop him. A report was made to the police on that occasion.

19. Indeed PW1 said that after he led PW2 to the male toilet, he had to go back to the reception counter of the male changing room and see if other members required assistance. During that period of time, he had to go out and come back several times. Apart from PW2, another club attendant Ah Lun was also there guarding the cubicle. Under those circumstances, PW2 might have been mistaken as to the presence of PW1 when the defendant came out the first time or PW1 might have forgotten the first ‘coming out’ event as he had to attend the reception counter intermittently. This is purely a matter of memory or confusion.

20. On the other hand, if one were to put the question of memory or confusion aside, I would ask myself, as a trier of fact, if the discrepancy was material and would cast a reasonable doubt on either testimony. Taking an overview of the evidence, PW2’s first encounter with the defendant was a brief one and he indeed had no idea if the defendant was a guest of other club members. On that occasion, PW2 was performing his duty to maintain the security of the club and a report to police was the preventive measure very often taken by security office. I fail to see there was any reason why PW2 in reality had to form any prejudicial view on the defendant and jump to a conclusion that his presence at CCC must be clothed by an evil intent. On 7 December 2012, there was no loss report made by PW3 at the time when PW2 was guarding the cubicle. When PW3 returned to the male changing room, he was asked by the police officers if he had lost anything. PW2 therefore would have no knowledge as to whether the blue bag was the property of PW3, not to mention that it might be a stolen property. Thus I fail to see there was any reason why PW2 had to exaggerate his evidence against the defendant.

21.  Also PW1 had to travel between the male toilet and the reception counter intermittently at the material time whilst PW2 was guarding the cubicle throughout.  Therefore, in my view, PW2 shall be more vigilant about the observation.  Having considered their overall testimonies, I prefer the evidence of PW2 if there is any discrepancy with that of PW1.”

20. It has not escaped us that in describing Mr Ng as more vigilant, and stating that his evidence was to be preferred[2], the judge had seemingly contradicted himself on his finding that Mr Ng might be mistaken as to Mr Lo’s whereabouts during the Applicant’s first exit[3].  We are however satisfied that the reference to vigilance means nothing more than that Mr Ng was stationary, had all his attention focused on the person inside the toilet cubicle and was thus in a better position than Mr Lo to see and relate everything that this person (the Applicant) had done. 

21. It should also be pointed out that prior to cross-examination, Mr Ng’s clear evidence was that Mr Lo witnessed only the second exit, and it was at that juncture that he asked Mr Lo to confirm the Applicant’s identity as the person behind the rear door[4].  This is consistent with Mr Lo whose evidence was that he saw the Applicant come out, and was then asked to confirm that that was the same person[5] – there was no mention by Mr Lo of any retreat into the toilet cubicle.  It was only in cross‑examination that Mr Ng stated that Mr Lo witnessed the quick exit‑and-retreat episode[6], and equated it with the time when he asked the latter for a confirmation of the person’s identity[7], which seems to us to indicate a sudden confusion in the order of events. Unfortunately, this was never clarified by counsel through re-examination.

22. It his written submissions, supplemented orally, the Applicant raises the point that according to Mr Lo, he was “in the vicinity of the male toilet” throughout the incident.  The point being if that is true, and given the fact that Mr Lo witnessed only one exit, what Mr Ng said about the blue colour bag and the other exit must be fabricated.  The answer to that, however, is that that is a misinterpretation of the evidence. The crux of Mr Lo’s evidence was that he had to “leave and go out to work”, and was outside the toilet cubicle when his other duties did not occupy him[8], which is in complete agreement with Mr Ng’s depiction of the situation.[9] 

23. Having gone through Mr Lo and Mr Ng’s evidence, we are satisfied that the trial judge was entitled to his conclusion on the above‑mentioned discrepancy.  The cases cited by the Applicant deal only with principles and are of no assistance to him in the factual context of the present case. 

24. We can find nothing that would upset the conviction.

Conclusion

25. For those reasons, the application is refused.

Hon Lunn JA (giving the judgment):

Loss of Time

26. Having dismissed the applicant’s renewed application for leave to appeal against conviction, we invited him to address us as to why we should not exercise our power pursuant to section 83W of the Criminal Procedure Ordinance, Cap 221 to make a “a loss of time” order. The applicant told us that he had been informed by the Correctional Services Department, or at least an employee of that department, that if he raised new grounds of appeal, then a loss of time order could not be made, and he pointed to the grounds that he advanced as to the issue whether or not he knew he was a trespasser as being such new ground. 

27. However, the essence of the grounds of appeal advanced by the applicant today, repeat the essence of argument advanced before Yuen JA, alleging failure of the judge in his analysis of the evidence, including his failure to resolve alleged discrepancies in the evidence of prosecution witnesses, to have regard to the inherent improbability of the evidence and the evidence generally. 

28. On 31 December 2013, Yuen JA dismissed the application for leave to appeal against conviction and warned the applicant of the Court’s power pursuant to the section 83W of the Criminal Procedure Ordinance. The form by which the applicant renewed his application contains that warning in simple, stark term.  We are satisfied that it is appropriate to make such an order.  We order that six weeks of the time during which the applicant has been in custody pending determination of his appeal shall not be reckoned as part of the term of the sentence to which he is for the time being subject.

[1]  Appeal Bundle, page 50N.

[2]  Reasons for Verdict, paragraph 21.

[3]  Reasons for Verdict, paragraph 19.

[4]  Appeal Bundle, pages 46Q – 48L; in particular page 48G.

[5]  Appeal Bundle, pages 40Q – 41M.

[6]  Appeal Bundle, page 59N.

[7]  Appeal Bundle, page 60B – F.

[8]  Appeal Bundle, page 40N – Q.

[9]  Appeal Bundle, pages 46Q & 59A – M.