HKSAR v. CHAU CHING KAY, NAUTHUM

[English Translation]

CACC 505/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL JURISDICTION

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

CRIMINAL APPEAL NO. 505 OF 2000

(ON APPEAL FROM DCCC 733 OF 2000)

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J U D G M E N T

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Hon Woo, J.A. (giving the judgment of the Court):

1.  The applicant was the 1^st accused in the original trial.  He and the 2^nd accused Ms. HO Chui-yu were convicted on 30 November 2000 in the District Court by H.H. Judge Wong of the following charges:

(1)  The 1^st charge was against the applicant for burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, namely, on 24 May 2000 having entered as a trespasser the 2^nd Floor of No. 4 Seymour Terrace, Central, he stole therein one video camera and one clock.

(2)  The 2^nd charge was against the applicant for attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200, namely, on 24 May 2000, he attempted to enter as a trespasser the 1^st Floor of No. 4 Seymour Terrace, Central, with intent to steal therein.

(3)  The 3^rd charge was against the applicant and the 2^nd accused for attempted burglary, contrary to the same provisions as referred to in the above 2^nd charge, namely, on 28 May 2000, the two of them attempted to enter as trespassers the 2^nd Floor of No. 20 Castle Road, Central, with intent to steal therein.

2. On the applicant’s three charges, Judge Wong sentenced him to a total of four years’ imprisonment. On the 2^nd accused’s charge, Judge Wong sentenced her to two years’ imprisonment.

3. On 11 December 2000, the 2^nd accused had applied to this Court for leave to appeal against both conviction and sentence, but earlier on she already informed the Court that she would abandon all the applications.

4. On 14 December 2000 the applicant applied for leave to appeal against conviction.  He submitted a total of nine grounds of appeal which alleged in broad terms that the Judge should not have rejected his evidence and accepted the prosecution witnesses’ evidence.  He also argued that the prosecution had not given any fingerprint evidence against him to support the charges.

5. The applicant’s above applications were made within the statutory time limit for appeal.  Moreover, on 31 May 2001, the applicant applied to this Court for leave to appeal against sentence.  These applications were made out of time.  To explain why the applications were made out of time, the applicant filed an affirmation in which he stated that he had to seek legal advice, and therefore, there was a delay in making the applications for reduction in sentence.  The applicant’s two applications were both made as per Form No. XI provided in the Criminal Procedure Ordinance, Cap. 221.

6. The applicant was assigned Counsel Mr. Wong Po Wing by the Legal Aid Department to represent him in making the applications for leave to appeal against conviction in respect of the 1^st and 2^nd charges, whereas he handled the other applications himself.

The Reminder

7. On 18 October 2000, before hearing this case, this Court reminded the applicant and his counsel Mr. Wong Po Wing as follows:  If after hearing this case this Court was of the view that the applicant’s appeal was entirely without substance and unjustified, this Court might make a loss of time order, namely, an order that the applicant’s time spent in custody pending the determination of these applications be taken away from the counting of the service of the term of his imprisonment.  This Court’s reminder was in effect a reiteration of the content of Note 3 of the two applications as per Form No. XI submitted by the applicant.  The Chinese statement is as follows:

“根據《刑事訴訟程序條例》第83W條，上訴法庭有權指示，你在聽候上訴的裁定時在扣押中的時間，不得作為你當其時所受刑罰的部分刑期計算。”

(“The Court of Appeal has power under section 83W of the Criminal Procedure Ordinance to direct that the time during which you are in custody pending the determination of your appeal shall not be reckoned as part of the term of any sentence to which you are for the time being subject.”)

Moreover, the content of Note 1 makes it clear that this Court has power under section 83I of that Ordinance either to increase or reduce the sentence.

8. This Court gave time to the applicant and Mr. Wong to consider the matter. Subsequently, Mr. Wong informed this Court that the applicant had in fact decided to abandon the application to appeal against the conviction on the 3^rd charge prior to appearing before this Court. After hearing the reminder of this Court he was also willing to abandon the application to appeal against the sentence.  However, he insisted that Mr. Wong should continue to proceed with the applications to appeal against the convictions on the 1^st and 2^nd charges.  But he hoped that even if this Court did not allow those applications, we would not order a loss of time.

The Facts

9. The facts of this case were simple.  According to the prosecution’s evidence, Sergeant 17626 and other members of his team were performing anti-burglary and anti-robbery operations in the vicinity of Caine Road, Central on 28 May 2000.  At 2.30 p.m., while patrolling in Castle Road he saw the applicant holding a black leather bag under his armpit, walking downhill along Castle Road, and looking around at the buildings nearby.  The Sergeant, therefore, summoned other team members over his beat radio to render reinforcement.  After that he saw the applicant talking with the 2^nd accused for about one minute outside a McDonald’s shop. The two of them then went together to Castle Road and walked towards Seymour Road.

10.  When the two of them reached the building of No. 20 Castle Road, the 2^nd accused went towards the building’s main door. At that time a Filipino domestic helper was walking out from the inside and the main door was open.  The 2^nd accused then entered the building.  The applicant continued to walk ahead and reached a rear lane further up from the building.  He looked into the rear lane for two to three minutes and then walked down Castle Road.  When he returned to that building he stood at the doorway for a while.  The main door was then opened and he also entered the building.

11.  At 2.52 p.m., other police constables arrived at the scene.  The Sergeant then deployed his team members.  At 3.00 p.m., the applicant and the 2^nd accused had not yet left the building, and therefore the Sergeant and PC 52949, PC 48112 and WPC 18639 entered the building to investigate.  There were no lifts but only flights of stairs.  They walked up the stairs.  When they reached the landing between the 1^st and 2^nd floors, the Sergeant saw that the applicant was bending down holding a crowbar with both hands and was doing something, near the lock, to the wooden door of the residential flat on the 2^nd floor.  The Sergeant then dashed forwards and shouted loudly, “Police, don’t move”, and he gripped the applicant by the shoulder and ordered him to kneel down.  At that time the Sergeant saw the 2^nd accused standing behind the applicant. Afterwards PC 48112 went forward to assist the Sergeant in arresting the applicant, while WPC 18639 arrested the 2^nd accused.

12.  At that time the iron door of the residential flat on the 2^nd floor was already opened and the wooden door showed marks of having been prized near the lock.  The Sergeant ordered PC 48112 and WPC 18639 to arrest the applicant and the 2^nd accused respectively.  The Sergeant saw that there were a crowbar, a black cloth bag and a handbag on the ground, and inside the black cloth bag there were two crowbars, two pairs of gloves and a cap.

13.  At 3.10 p.m., PC 48112 declared that the applicant was under arrest for the offence of burglary and orally cautioned him. The applicant replied,

“As I am caught red-handed, if my girlfriend is released, I can co-operate with you.  I can tell you about the two jobs I did a few days ago.”

14.  When the whole party returned to the Central Police Station, PC 48112 interviewed the applicant for the purpose of making a post record and asking the applicant some questions.  Having completed the post record and cautioned the applicant again, he asked the applicant the following question:

“Earlier on you told me you did two jobs a few days ago.  What does that mean?”

The applicant replied,

“The first job was done about 4 days ago, further up from Shelley Street, Central, on Floor Two [二樓in Chinese] of the building where renovation works were going on right below that floor.  I went inside and took some foreign currency.  Later I exchanged it for about HK$1,060.  The second job was done in Seymour Terrace, on Floor Three [三樓 in Chinese] of a building, the house number of which I cannot recall. I entered the flat and took a video camera which I sold for about HK$3,000.  Then I prized with a crowbar the main door to a flat on Floor Two [二樓 in Chinese] but was not able to gain entry.”

The Grounds of Appeal against Conviction

15.  Before this Court, Mr. Wong of Counsel sought leave to appeal against conviction on the 1^st and 2^nd charges.  In essence he submitted the following two grounds of appeal:

(1)  Judge Wong was wrong in admitting into evidence the confession statements made by the applicant to the police because the applicant gave ample and strong evidence that he had been induced by the police to sign the confessional statements.  The applicant’s evidence was that as an inducement to him to sign the confession statements, the police promised to release his girlfriend (i.e., the 2^nd accused) and allow him to get a lawyer.

(2)  Even if the contents of the applicant’s confession statements were accepted, it was no proof beyond reasonable doubt that he had committed the offences in the 1^st and 2^nd charges.

The 1^st Ground of Appeal against Conviction

16.  The applicant’s confession statements mentioned in paragraphs 13 and 14 above were recorded in the notebook of PC 48112 and were produced in court as exhibit P14.  Besides, after he had been interviewed by PC 48112, the applicant was further interviewed twice by another police constable at the police station.  The interviews were videotaped.  The written records of the interviews were also produced by the applicant and marked exhibits D1 and D1a.  Mr. Wong of Counsel argued that the confessions made by the applicant to the police were all made as a result of inducement on the part of the police.  He said that the contents of exhibits D1 and D1a provide strong support for this point.  The applicant said in exhibit D1a,

“This was when the cop spoke to me, told me that [he] would allow me to get a lawyer.  He told me just to admit to two jobs and then he would, and let me use the telephone to get a lawyer. That is to let, that is to let me get a lawyer as well as let my girl go, release my girl on bail, that is to release my girlfriend on bail.  So I did not sign until he, after he had written, and I was not quite sure of the actual content.”

17. The applicant went on to say,

“Because at that time I was anxious and wanted to get a lawyer.  I also just wanted my girlfriend to be bailed out, the sooner the better.  And so, we reached an agreement.  I was asked to admit to two jobs.  With [my] admission to two jobs, he would let me get a lawyer, that is, my girlfriend would be allowed bail.”

18.  In his Reasons for Verdict, Judge Wong ruled as follows:

“D1 objected to the production in court of the reply to the oral caution at the scene and of the post-recorded statement on the grounds that he had been threatened and induced.  My ruling after the hearing was that he provided the entire contents voluntarily.  In my ruling, what he said and what was recorded on videotape were entirely voluntary.  So, I accepted the evidence and allowed the production of the evidence in court.”

19.     Mr. Wong complained that Judge Wong had not given detailed reasons for admitting the applicant’s confession statements. However, Senior Assistant Director of Public Prosecution, Ms. Ip So Ng for the respondent submitted that there was no need for Judge Wong to give detailed reasons when ruling on the voluntariness of the applicant’s confessions.  Ms. Ip of Counsel cited R v CHAN King-hei [1995] 1 HKCLR 288, 291 in support of her view.  In that case, Mortimer JA cited R v LAM Yip-ying [1984] HKLR 419 and reiterated that there was no need for the trial judge to give the reason for the ruling when deciding whether a statement was made voluntarily.  This Court is satisfied that the legal proposition stated by Ms. Ip is correct.  The trial judge did not err when he admitted the applicant’s confession statements into evidence without giving the reasons in detail.  This does not constitute any valid ground of appeal.

20.     Mr. Wong of Counsel cited HKSAR v Dhillon, CACC 387/00 (24 August 2001, unreported) and submitted that the Court of Appeal would quash a conviction on the grounds that the trial judge failed to state clearly how contradictory facts in a case were ruled upon.  In that case, two facts were in issue and the relevant evidence about each fact was in conflict.  In the Reasons for Verdict, the trial judge did not mention at all how the conflicts were resolved, nor did he state why he accepted the fact which was unfavourable to the accused whilst rejecting the fact that was favourable to him.  Most importantly, those facts in conflict were both admitted by the prosecution witnesses.  The situation in the above case differs greatly from the situation in the present case.  In the present case, both the prosecution and the defence provided evidence which was at odds in respect of the voluntariness of the applicant’s confession statements, with each side sticking to its own version of the account.  Judge Wong, as did all trial judges, had the advantage of having the opportunity to hear the witnesses and observe their demeanour when they gave evidence, and by comparison the Court of Appeal was denied such an advantage and could only rely on the transcript of the testimony.  In deciding to accept the testimony of one party and reject that of the other, he did not have to state all the reasons for doing so (see HKSAR v CHOI Gin-ngon & Ors [1998] HKLRD 902 at 909-910).  In the Dhillon case there were conflicting facts that were all admitted by the prosecution witnesses.  But the situation in that case is completely different from that in this case.  The question that Judge Wong had to determine is also not the same.

21.     In addition, the contents of exhibits D1 and D1a can also show that the applicant’s allegation that his confession statements were involuntary was farfetched and without merits.  Exhibit D1 recorded that the interview began at 7.46 p.m. on 28 May.  In the Interview, the applicant posed the question to SDPC 11248 whether he could get a lawyer to represent him before the videotaped interview began.  If it was as stated by the applicant in exhibit D1a (that is, in the second videotaped interview which began at 11.24 p.m. that night) that he confessed to PC 48112 because the police constable had made a promise that he would be allowed to get a lawyer if he confessed to the other two offences, then he would not need to ask SDPC 11248 whether he could get a lawyer before the videotaped interview began.

22.     When the second videotaped interview (as recorded in exhibits D1a) was underway, the applicant’s lawyer was also present.  During the interview, the applicant was not very willing to answer most of the questions asked by the police.  Also, he often said that he was not willing to answer for the time being.  However, he did answer the following question:

“Question:   Well, at the time when the police arrested you, you were asked that, and you said…you had done two jobs.  You were asked what that meant.  The first job was done about 4 days ago, further up from Shelly Street in Central, on Floor Two [二樓 in Chinese] of the building where renovation works were going on right below that floor.  You went inside and took away some foreign currency which was later exchanged for about HK$1,060.  The second job was done in Seymour Terrace, on Floor Three [三樓 in Chinese] of the building, the house number of which you cannot recall. You went into the flat and took away a video camera which was later sold for about HK$3,000.  Then on Floor Two [二樓 in Chinese] I [sic] prized the main door with a crowbar but was not able to gain entry.  Well, this is how it should be read, as that is what you told the police.  Do you agree?

Answer: Agree.”

23.     Although the applicant claimed that at the time of the 2^nd videotaped interview, he had confessed to PC 48112 only because of the inducement and promise on the part of the police, the contents of exhibits D1 and D1a did not fully support, as suggested by Mr. Wong, the truth of the applicant’s claim.  As a matter of fact Judge Wong commented as follows:

“I also absolutely believe that the 1^st accused, hoping to save the 2^nd accused, mentioned of his own volition under caution his previous acts of burglary.”

24.  Before this Court, Mr. Wong of Counsel submitted for the first time that the contents of the confessions in exhibit P14 alone would suffice to prove to the satisfaction of this Court that the confessions had been clearly made on account of police inducement.  The confession as quoted in paragraph 13 of this judgment is repeated for perusal:

“As I am caught red-handed, if my girlfriend is released, I can co-operate with you.  I can tell you about the two jobs I did a few days ago.”

Mr. Wong argued that at that time the applicant made a request to the police, that is, a request for the release of his girlfriend.  However, there was no evidence as to whether the police had denied or rejected his request.  In such circumstances, any confessions he subsequently made to the police must be made involuntarily.  In our judgment, Mr. Wong’s argument is fallacious.  If his argument is correct, then in any case where a suspect makes it clear to the police that he has a request to make before he confesses, unless the police refuses his request immediately, it would amount to the police’s assenting to the request, and it would necessarily follow that any confession by the suspect would have been made on account of police inducement and not voluntarily.  We do not want to say anything further about this.  Suffice it to say that this argument is just sophistry and is extremely unreasonable.  Moreover, in the present case, before the applicant made the confessions contained in paragraph 14 of this judgment, PC 48112 reminded and cautioned him as follows: “You are not obliged to say anything unless you wish to do so….”  Having heard the reminder/caution, the applicant said that he understood and then he made the confessions.

25.  This Court considers that Judge Wong did not err in ruling that the applicant did confess to the police of his own volition.

26.  For the above reasons, this Court finds that the 1^st ground of appeal should fail for it is without merit.

The 2^nd Ground of Appeal against Conviction

27.  With regard to the 2^nd ground of appeal, Counsel, Mr. Wong vigorously asserted that the two burglaries which the applicant described in his confession statements to the police were different from those referred to by the two prosecution witnesses.

28. In his Reasons for Verdict, Judge Wong clearly referred to the evidence of the two prosecution witnesses:

“Odagiri Yuko returned home at 5.30 p.m. on 24 May 2000 to the 2^nd floor of No.4 Seymour Terrace and discovered that it had been ransacked.  It was later found that a video camera and a clock were missing.

At 4.35 p.m. on that day, Kwong Shue Wing returned to the 1^st floor of No.4 Seymour Terrace and discovered that the main door showed marks of having been prized, but there was no loss.”

29.     A comparison can be made between the evidence of the two prosecution witnesses and the confession statements made by the applicant to the police (see paragraphs 14 and 22 above) as follows:

(1) Time of Offences:      The words “about 4 days ago” in the confession statements mean about 4 days before 28 May 2000, and this is corroborated by the testimony of the two prosecution witnesses that the burglary and the attempted burglary took place on the 24 May 2000.

(2) Scenes of Offences:   The confession statements give Floor Three [三樓 in Chinese] and  Floor Two [二樓 in Chinese] of a building whose house number cannot be recalled in Seymour Terrace as the scenes of the offences.  These correspond with the scenes of the offences as given by the two prosecution witnesses, that is Floor Number 2 (i.e., the 2^nd floor in English) and the floor below, that is, Floor Number 1 (i.e., the 1^st floor) of Seymour Terrace.  Although the confession statements did not mention the house number of the building, the two residential flats mentioned in the confession statements are located on two storeys, one above the other, of the same building. This corresponds with the testimony of the two prosecution witnesses.

(3) Property Lost:  The applicant confessed that he stole a video camera from Floor Three [三樓 in Chinese] and this corresponds with the testimony of Odagiri Yuko that she lost a video camera.  Mr. Kwong said that the main door of his flat showed marks of having been prized and this is corroborated by what the applicant said in his confession statements.

30. However, Mr. Wong of Counsel stressed that the words “the first job was about 4 days ago” in the applicant’s confession statements meant the day of the burglary perpetrated on the 1^st floor of a building in Shelley Street in Central, and it was not necessarily the day of the burglary perpetrated in Seymour Terrace; that the applicant made no mention of the house number of the building in Seymour Terrace; that he only said that he had been to Floor Three [三樓 in Chinese] and burglarized there and that he prized the main door of a residential flat on Floor Two [二樓 in Chinese] of that building; and that these confessions on the part of the applicant were not consistent with what the two prosecution witnesses said.  In support of his argument, Mr. Wong insisted that what local people call “Floor Three” [三樓 in Chinese] is not the same as what is called the 2^nd floor in English (i.e., the floor which Hong Kong people sometimes call “Floor Number 2” [2字樓 in Chinese] in order to avoid ambiguity); and that what local people call “Floor Two” [二樓 in Chinese] is not the same as what is called the 1^st floor in English (i.e., the floor which Hong Kong people sometimes call “Floor Number 1” [1字樓 in Chinese] in order to avoid ambiguity).  In fact these different ways of calling the floors of a building are very commonly in use.  Hong Kong people all understand them and are accustomed to them.  Mr. Wong should not resort to sophistry.  The ground he raised can hardly explain the fact that the contents of the applicant’s confession statements are corroborated by the testimony of the two prosecution witnesses.  If the applicant were not the perpetrator, there would be no reason why there is such a high degree of corroboration.  In our judgment, the 2^nd ground of appeal and the argument put forward by Mr. Wong of Counsel are devoid of merit and should fail.

31.  In his Notice of Application to appeal, the applicant said that Judge Wong should accept his evidence, and should not have accepted the prosecution’s evidence.  However, the applicant failed to give any reason to support that.  The applicant also asserted that there was no fingerprint evidence against him.  However, the absence of evidence of the accused’s fingerprints does not mean that he was not the perpetrator.  So long as there is ample other evidence to prove the guilt of the accused, the court may still bring in a verdict of “Guilty” even without any fingerprint evidence.  In the present case, the applicant voluntarily confessed that he had committed the 1^st and 2^nd charges, and the confessions have been held to be authentic and reliable.  Ample evidence has been adduced to prove the applicant’s guilt.  Judge Wong did not err in any way.  Accordingly, the applications by the applicant for leave to appeal against conviction are dismissed.

Conclusion

32.  For the reasons given above, this Court refuses the applications.

Loss of Time

33.  Before hearing these applications, this Court reminded the applicant that if the Court finds the appeal utterly without substance and unjustified, the Court may order loss of time already spent in custody (see paragraphs 7 & 8 above).  Actually it is not necessary for us to provide such a reminder.  We provided it because we were concerned that the applicant and his counsel Mr. Wong might have forgotten the power with which this Court is vested under section 83W of the Criminal Procedure Ordinance.  Earlier in this judgment, this Court has pointed out that the present appeal is devoid of merit.  The applications were in fact a waste of the court’s resources, an abuse of public fund.  Therefore, it is ordered that the three months the applicant already spent in custody pending the hearing of these applications are not to be reckoned as part the term of sentence which the applicant is to serve.

34.  As a general reminder to all appellants lodging criminal appeals or applicants seeking leave to appeal and also to their representatives in the legal profession, we would now like to point out that in normal circumstances, this Court will not in future remind them, before hearing their case, that it may exercise the power with which it is vested under section 83W or under section 83I (to increase the sentence).  We also elaborated on this point in another criminal appeal case the judgment on which we also gave today, namely, HKSAR v Yu Tai Chi CACC 476/2000 (24 October 2001).

Representation: