HKSAR v. LAM CHUN HUNG

CACC361/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 361 OF 2003

(ON APPEAL FROM DCCC NO. 553 OF 2003)

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REASONS FOR JUDGMENT

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Hon Ma CJHC :

Introduction

1. On 4 August 2003, the Applicant was convicted after trial in the District Court of two charges: one of burglary, the other of going equipped for stealing. On the burglary charge, the Applicant was jointly charged with another Defendant (Chui) who was also found guilty. On the same day, the Applicant was sentenced to 2 years 6 months' imprisonment for the burglary charge and 1 year for the going equipped charge, both sentences to run concurrently.

2. The Applicant applied for leave to appeal against conviction. Chui made a similar application but has since abandoned it.

3. At the hearing before us, Mr H Y Wong appeared for the Applicant having been assigned by the Bar Free Legal Service Scheme, but only in relation to the second charge (the going equipped charge). The Applicant maintained his application as far as the first charge was concerned and represented himself in this regard.

4. After hearing submissions from the Applicant, Mr Wong and Mr William Tam (who appeared for the Respondent), we dismissed the application for leave to appeal against both convictions.

The convictions

5. The prosecution's case against the Applicant and Chui was this. In the early hours of 2 March 2002 in North Point, a police officer on patrol saw a person squatting outside a shop pushing a stack of plastic containers. The roller shutter of the shop was half open. This person was then observed standing up and walking towards a taxi which was parked on the same side of the road some two shops away. He boarded the taxi and as it set off, the police officer moved in front of the taxi to stop it. Inside the taxi were the Applicant, who was the driver and Chui in the passenger seat at the back. The police officer then called for assistance which eventually arrived.

6. After some investigation, it was discovered that at the rear part of the said shop, which was used as a money exchange counter, a safe had been moved. It was also discovered that the roller shutter had been prised open.

7. A screwdriver and 2 pairs of gloves were found on the floor in front of the left rear seat of the taxi where Chui was sitting. In the boot were also found some tools, including 3 blue coloured crowbars. There were traces of blue paint on the under side of the roller shutter of the shop and it was the opinion of one of the forensic scientists who made a statement for the purposes of trial that the traces of blue found on the shutter matched in colour and chemical composition the blue paint from one of the crowbars. It was also the view of another of the forensic scientists that the roller shutter had been forced open by a prising tool (such as a crowbar).

8. At trial, the judge heard testimony from the police officer who had been on patrol that night. The police officer identified Chui as being the same person he first spotted outside the shop as the one who boarded the taxi. Testimony was also given by the owner of the taxi and from the shift driver who was driving the taxi before the Applicant that the various tools found in the taxi as earlier set out, did not belong to them nor had they seen them before.

9. In convicting the Applicant of both charges, the judge held :-

(1) As to the first charge, that as the crowbar that had been used to prise open the roller shutter of the shop was the one found in the boot of the taxi (this fact being inferred from the forensic evidence earlier described), this in turn supported the inference that the Applicant had driven Chui to the scene of the burglary knowing that Chui would or intended to commit an act of burglary. From this inference and also from the fact that the Applicant must have been waiting for Chui (he could observe him from his taxi), the judge concluded that the Applicant was a party to the burglary in that he was assisting Chui by providing transport to and from the scene of the crime.

(2) On the second charge, that since the Applicant was in control of the taxi and given his involvement as stated earlier, he was aware of the purpose for which the tools found in the taxi were required. In paragraph 23 of the Reasons for Verdict, the judge said this :-

"The finding that the 1st defendant used a crowbar to enter the shop, and my finding that the crowbar was in the boot of the taxi, supports the inference against the 2nd defendant. That inference is that he brought the 1st defendant to the scene in his taxi with various burglary tools in the boot of the taxi, knowing the 1st defendant's purpose ......"

Accordingly, he found the second charge proved as well.

10. The judge rejected an inference he was asked by the defence to draw to the effect that the Applicant and Chui just happened to arrive at the scene after the burglary had taken place. In rejecting this version, the judge must necessarily have rejected any notion that the blue crowbars found in the boot of the taxi were just coincidentally the same colour as the prising tool used in the burglary.

The Applicant's argument

11. In his original Grounds of Appeal, the Applicant raised various points such as the testimony of the prosecution witnesses being contradictory, the absence of fingerprints on any of the exhibits connected with the burglary and that there was no evidence of his being in any way linked to Chui. He also made the point that the traces of blue paint found on the roller shutter of the shop could have belonged to any crowbar available for purchase in shops. As we have already observed above, it must follow therefore from this ground that the 3 crowbars found in the boot of the taxi were just present by coincidence. The Applicant did not elaborate on these grounds before us.

12. These points relate to both charges. We have no hesitation in rejecting them. The judge below took them all into account in his view of the evidence. We believe that he was entitled to draw the inferences which he made from the testimony and other material before him. We do not see where the judge has erred.

13. Indeed, these arguments were not pursued by Mr Wong who concentrated his submissions instead on the second charge only. Here, Mr Wong raised a legal argument to the following effect :-

(1) In finding the second charge proved against the Applicant, the judge found it followed from the inferences that could be drawn in relation to the first charge (see above) that the Applicant must have known that the tools found in the boot of the taxi were for the purposes of burglary.

(2) Mr Wong, however, submitted that the offence of going equipped under section 27(1) of the Theft Ordinance, Cap.210 could only be established if a person, not located where he lived, was found in possession of articles which were intended to be used for a future "burglary, theft or cheat". The offence could not relate to a past burglary, as in the present case so Mr Wong submitted :- when the tools were found in the boot of the taxi, the burglary had already been committed. Reliance was here placed on R v Ellames [1974] 1 WLR 1391, at 1397B - 1398C.

14. Section 27(1) of the Theft Ordinance states :-

"Any person who, when not at his place of abode, has with him any article for use in the course of or in connexion with any burglary, theft or cheat shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 3 years."

15. R v Ellames is, we believe, authority for the following propositions :-

(1) The offence of going equipped under section 27(1) of the Theft Ordinance is committed only if a person is found in possession of any article "for use" either in the course of or in connection with a burglary, theft or cheat.

(2) The words "for use" mean and relate to the intention of the person charged. In other words, these words relate to the mens rea of the offence.

(3) The mens rea of the offence relates to the future, not the past. It is therefore necessary for the prosecution to prove an intention to use the equipment for some future burglary, theft or cheat. It is not enough to charge a person with possessing equipment that has been used in connection with a past burglary. In other words, the offence is going equipped, not 'having gone equipped'.

(4) The article or equipment found on a person can of course be intended for use either in the course of the future burglary, theft or cheat (for example, for use in the actual burglary itself) or in connection with it (say, acts preparatory to the burglary, theft or cheat or for escape purposes). Moreover, the burglary, theft or cheat do not have to be intended to be committed by the person in possession; it can be committed by someone else.

16. Ellames was cited with approval by Penlington JA in The Queen v Tsang Hing Wah [1990] 1 HKLR 714, at 716. We regard the principle in that case as representing the law in Hong Kong.

17. Mr Tam accepts the principle in Ellames that under section 27(1), the tools must relate to a future, and not past, burglary. He submits, however, that the gist of the second charge related to the possession of the tools by the Applicant at a time prior to the burglary so that they were intended at that point in time to be used in respect of a future burglary. He submits that the judge's findings at paragraph 23 of the Reasons for Verdict (the relevant part of which has been set out in paragraph 9(2) above) fully supported the conviction on this charge.

18. Mr Wong argues in response that whatever the judge's findings, the particulars of the second charge do not make it clear that this was the nature of the going equipped charge that the Applicant faced at trial. It followed then that if this was not clear to the Applicant at the trial, it was unfair to have convicted him of the second charge on the basis that it related to a point in time prior to the burglary.

19. However one might at first sight have been attracted by this submission, we take the view that the trial on the second charge could only have proceeded on the basis that it related to the time prior to the burglary. It would appear that at no stage was the Applicant's counsel at trial (not Mr Wong) under any difficulty or doubt as to the nature of the second charge. Nor was the judge under any difficulty. His Reasons for Verdict at paragraphs 23 and 25 demonstrated that he understood the second charge to refer to the point in time prior to the burglary. The sentence he imposed for the two charges were ordered to run concurrently as well. We have not seen any indication to suggest that anyone at the trial assumed that the second charge related to some future burglary subsequent to the one committed on 2 March 2002. As to the point made by Mr Wong on possible prejudice to the Applicant, with respect, we have seen no evidence to support this argument.

20. No doubt, it was somewhat odd that the Applicant should have been charged with going equipped when he was also charged with the substantive burglary offence. Be that as it may, there was no reason why the charge could not have been brought and the judge's findings (which we have held he was entitled to make) fully supported the Applicant's conviction on the second charge.