HKSAR v. MA KAM SUN AND ANOTHER

CACC 203/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 203 OF 1999

(ON APPEAL FROM DCCC 1288 OF 1998)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

Introduction

1. On 26 March 1999, the Applicants (D1 and D2 at trial respectively) were convicted with D3, following a trial in the District Court before Judge Wilson, of conspiracy to commit burglary. All the defendants were sentenced to five years' imprisonment. D1 and D2 originally sought leave to appeal against conviction and sentence. D3, at an earlier date, abandoned similar applications. At the commencement of these proceedings, an application was made by trial counsel, Mr. Geoffrey Watson, who appeared on behalf of D1 and D2 simply to apply (pro bono) for legal aid to be granted. We refused this application, the matter already having been considered by Legal Aid Department in June 1999, who refused to grant legal aid and sent a notice to the Defendants to that effect. Mr. Watson also indicated that D1 and D2's applications regarding sentence were not going to be pursued. This was confirmed by D1 and D2 and, accordingly, we dismissed those applications.

2. We were then presented with a request by the Reverend John Wotherspoon to consider hearing evidence from him to the effect that in thirty years' experience of dealing with prisoners, on only three occasions had he been so struck by their apparent innocence that he had felt compelled to give evidence on their behalf. In fact this would have been, if we granted leave for him to testify, the third occasion. D1 had struck him as somebody who may well be innocent and, as the priest put it, while he was not attempting to be a human "lie-detector", he would like to give evidence on D1's behalf. This application we also rejected.

3. We were then asked to consider an adjournment by D2 because he was not "psychologically prepared" for the appeal. His mother was due to be in Hong Kong in the next few days and he preferred the court to await her arrival before embarking on his appeal. The hearing date of this application has been set down for a month, the earlier hearing date in June having been vacated when a number of transcripts were required for the hearing. This application we also rejected.

4. D1 then applied for an adjournment for further transcripts about which he had written to the court on two dates in October 1999. There were no substantial grounds for granting this adjournment and we again refused the application.

5. At this stage, D2 indicated that he did not wish to pursue his application in regard to conviction. Accordingly, that application was dismissed.

The Charge

6. The charge which this matter arises from alleged that the three Defendants, on days between 2 October 1998 and 7 October 1998, conspired together to commit burglary.

General allegation

7. The overall allegation was that each defendant was party to a large scale and sophisticated enterprise to burgle hotel rooms in a variety of high class hotels by creating master keys capable of opening hotel room doors. The Defendants all resided in Malaysia and had allegedly come to Hong Kong for the specific purpose of burgling hotel rooms.

8. In this day and age, most hotels issue computer-generated card keys to their guests. However, hotels also need to be able, in cases of emergency, to gain access to rooms and, for this purpose, they possess a metal master key which is capable of opening all hotel rooms. It is important to emphasise in the present proceedings that none of the hotels affected by this conspiracy were in any way implicated in what was alleged to have been the work of this three-men gang of hotel burglars. The technique allegedly developed by the Defendants involved booking themselves into a room at a hotel and thereafter dismantling the door lock in order to create a master key capable of opening every room in the hotel. Having created the master key, the door lock on the room they had booked into would be replaced with no obvious signs of anyone having tampered with it.

9. On arrest, they had in their joint constructive possession the keys to four major hotels in Hong Kong, namely, the Eaton Hotel, the Royal Plaza Hotel, the Royal Pacific Hotel and the Regal Kowloon Hotel. In practical terms, they had the keys to about 2,000 rooms. The prosecution produced specific evidence to show that they had entered at least some hotel rooms by the stage at which they were arrested. In addition, they had a large amount of unidentified property in their possession which, from the circumstances and from the alleged confessions that they later made, the Defendants had stolen from other rooms. They also possessed tools suitable for their purposes and the remnants of dismantled door locks.

Prosecution's Case

10. In a joint operation between police and security personnel at the Eaton Hotel, the activities of the Defendants were discreetly watched on 5 October 1998 after they had taken occupancy of Room 1310. The police party were able to observe the door of Room 1310 from inside another room which was along the corridor. Other police officers waited at escape routes which might have been used on floors above and below the 13th floor. In addition, two civilians, a hotel security officer and a manager of the company which supplies door locks to the hotel, were hidden in the room alongside Room 1310 which had a door that was more or less at right angles to the room occupied by the Defendants. It gave a view of the door to Room 1310 and its surrounds.

11. In the course of the evening, three men were seen to come and go from Room 1310. It was of particular note that at various stages they were seen kneeling down at the door lock whilst the door of their room was open. Considerable time was spent in that fashion, apparently while they did something to the lock with a key and a plastic card.

12. At about 5 a.m. on 6 October, the three males emerged from the room together and went out to the corridor. The police party waited for a few seconds before emerging themselves. When they got into the corridor, D1 was standing in the lift lobby. He had with him the card key to Room 1310. D2 was further along the corridor. Upon seeing the police who were in plain clothes, he was heard to shout "Run quickly". D3 was still further along the corridor and appeared out of the open door of Room 1319. In the vicinity of these men was found a duplicated metal key (Exhibit P4) on the floor of the corridor.

13. D1's card key for Room 1310 was used to gain entry to that room. It was searched but nothing of a criminal nature was found in it. What was unusual was the condition of the room because there were no signs of any normal occupation, no luggage was found, there were no toiletry articles and the bedding was not disturbed.

14. The police, of course, also went to Room 1319 from which D3 had earlier been seen to emerge. When they tried the door it was locked on the outside. The police later did gain entry, surprising the occupant who was a Japanese businesswoman (PW2). She said that she had been asleep all night and had not noticed anything untoward. When she checked her room, nothing appeared to have been stolen. In fact, when the manager of the lock supply company (PW8) gave evidence, he was able to say that the door lock of Room 1319 had been checked by him and records showed that it had been opened by a key, and not by the normal guest card key, at 4 a.m. on that day.

15. Subsequent evidence showed that the key (P.4) found on the floor of the corridor to the 13th floor was capable of unlocking Room 1319. Even more sinister, was the fact that it could also unlock every other room in the hotel.

16. Earlier on the same night, Room 739 at the Regal Kowloon Hotel had been burgled. A mainland tourist (PW1) had left her room during the evening and returned at 10 p.m. to find her suitcase broken open and a number of items stolen, including three handbags and a camera. She found, however, that the hotel room door was apparently still locked and undisturbed. The matter was reported and her room was checked for fingerprints. Apart from the stolen items, it was noticed by PW1 that a medical kit box which had been in her luggage had apparently also been tampered with and, as a result, police officers examined it for fingerprints. Several weeks later, she was invited to the police station where she was able to identify the camera and three bags which had been stolen from her room.

17. The three Defendants, it emerged during police inquiries, had booked through a travel company in Malaysia into another hotel, the Royal Plaza, for three nights from 3 October. They were given Room 1340. In spite of this, D3 had also checked himself into the Eaton Hotel where the earlier events, which have already been related, occurred in Room 1310. It was established also that D1 had earlier presented himself to the reception counter at the Eaton Hotel looking for a room on the afternoon of 5 October. He was declined a room at that time because he did not have his passport. The receptionist had been told by D1 that he would come back when he had got his passport. He never did so, but he was later seen wandering about the common areas of the hotel in the company of D2. In these circumstances, the prosecution was able to show that all three Defendants were in the Eaton Hotel during the afternoon of 5 October. D1 had attempted to check in, D2 was seen talking with D1 and D3 eventually did check in.

18. Following their arrest, each of the Defendants made statements to the police. None of them mentioned in their statements that they had checked into the Royal Plaza Hotel. It was as the result of police enquiries that the relevance of Room 1340 in the Royal Plaza Hotel was discovered and, in due course, all three Defendants were taken there. D1 supplied the code of the room safe. A search of that room, and the safe in particular, revealed about 60 objects including jewellery, watches, cameras, portable telephones and assorted handbags. Notably also, police found files, pliers, several keys and key blanks, four door lock cylinders which had been removed from locks, and some plastic laundry bags which are only important because of the fingerprints which were found on them. From amongst the items, only PW1 who had been staying in the Regal Kowloon Hotel was able to identify her property.

19. Amongst the keys in the safe at the Royal Plaza Hotel were four keys in particular. There was evidence that key no. 2 on the ring was capable of opening all of the doors at the Royal Plaza Hotel. Key 1 on the same ring could open all doors of the Royal Pacific Hotel. Key 4 could open all the doors of the Regal Kowloon Hotel. These were forged copies of the hotels' master keys.

20. The prosecution called a forensic scientist to examine the 14 keys which were recovered in total. He said that all 14 keys, including the one that had been found on the corridor near the arrest scene of the Defendants, had key shanks which were of the same brand, size, colour and appearance as the four keys which actually fitted hotel rooms. He examined the pliers and two files which were found in the safe of the Royal Plaza and detected brass filings of the same texture as the keys. He examined the door lock taken from Room 1310 of the Eaton Hotel and found signs of recent tampering on it. The same finding was made in respect of the door lock from Room 1340 of the Royal Plaza as well as the four lock cylinders found in the safe of the Royal Plaza. Those four lock cylinders were of the same type supplied to the police as samples by the company which supplies locks to the Eaton and Royal Plaza.

21. There was fingerprint evidence in the case. Importantly, D1's fingerprint was detected on the medical kit box of the burgled tourist (PW1) from the Regal Hotel in Kowloon. At the Royal Plaza, Room 1340, police succeeded in detecting a fingerprint of D1 on the safe door, a thumb print of D3 on a desk drawer and two prints of D1 on one of the two Eaton plastic laundry bags.

22. In a series of cautioned statements, D1 admitted that he and the other two Defendants had flown from Malaysia to Hong Kong for the purpose of burgling hotel rooms. He admitted that they had perfected a technique whereby, given sufficient time with access to a hotel door, they could remove the lock and make a copy master key for the entire hotel. He expressed regret for his actions and said that he supposed that he would get between three and five years' imprisonment but in mitigation he added a suggestion: "If hotel door locks were to sound an audible alarm when operated with the master key, this would thwart people like himself. Furthermore, such a device would cost only about $5 per lock."

23. The defence case presented by D1 at court was very different. He gave evidence that the three of them had come to Hong Kong on a shopping holiday. They were friends and, on 3 October 1998, booked into the Royal Plaza Hotel for three nights. They had come to the Eaton Hotel and had a room there on the night of 5 October despite the Royal Plaza booking because, as he put it, they had had too much to drink and had fallen asleep there. They woke up and were going to go out to have something to eat at 5 a.m. when the police stopped them. He had no idea how or why D3 came to be emerging from another room on the same floor. He also had no idea, when they came to Hong Kong, that D3 was carrying tools or blank keys or parts of door locks. His explanation for the fingerprint on the tourist's medical kit box from the Regal Kowloon was that these items are very common as a complimentary gift from travel companies, and he had seen and handled several on his journeys and, in fact, had lent one to D2 for some pills which he needed. He said that if the things found in the safe at the Royal Plaza Hotel were stolen, that must have been the result of an activity of D3 which was quite unknown to him. He said that at least some parts of the statements under caution, namely those parts which amounted to confessions, were untrue and were the result of pressure that had been put on him. Also, in relation to a number of pieces of paper which had been found in his possession and which contained references to the names of hotels, door locks and the word "VingCard", which is the name of the company that supplies hotel locks, he said those were the result of idle doodling.

Trial Judge's Findings

24. The judge gave his conclusions in the following terms:

"The three defendants arrived in Hong Kong together and were seen to be associating together. They jointly booked into and paid for three nights (3, 4 and 5 October) at the Royal Plaza. Notwithstanding this, D3 booked and paid for the night of 5 October at the Eaton Hotel and all three of them spent the night there. D1 separately had attempted to book yet another room at the Eaton for the same night.

When they were arrested at 5 a.m., D3 was in the act of emerging from a Japanese tourist's room which he had no right to enter. D1 and D2 were nearby, apparently acting as lookouts. A forged master key capable of opening all the rooms in that hotel was found apparently discarded in haste on the corridor floor. There was no luggage and no signs of normal occupation of their room at the Eaton where they had spent the night of the 5th.

At their room in the Royal Plaza were an array of objects, some of which were identified as stolen in hotel burglaries. D2 was wearing a jacket from such a burglary. Many of the other unidentified articles were obviously feminine in nature and unlikely to belong to three men.

D1 had the code to the room safe where most of the articles were concealed. In that safe was a ring of keys containing a further three forged master keys capable of opening the rooms of three further different hotels. There were tools capable of removing locks and filing metal keys, and blank key shanks matching the four forged keys. There were remnants of dismantled lock mechanisms.

D1's print was on the medical kit box tampered with during one burglary. D1's and D3's prints were on objects in the Royal Plaza room. All these show a clear and close connection between the three defendants as occupants of the Eaton on the night of the 5th, and the occupants of the Royal Plaza where stolen property and other incriminating objects were found.

The circumstantial evidence leads overwhelmingly to the irresistible inference the three defendants agreed together to burgle hotel rooms using forged master keys, and all three signed confessions to that effect which I find to be true."

25. The judge went on to reject D1's suggestion in evidence that the thief must have been D3 acting on his own.

D1's Application

26. With that background, we can turn to D1's application for leave to appeal against conviction. This court has, as we have earlier mentioned, received a number of communications from D1. His original application dated 12 April 1999 set out no grounds of appeal. It was merely a notice that he wished to appeal. Legal aid was refused in a notice filed on 4 June 1999.

27. On 14 June 1999, D1 appeared at court for a 'mention' hearing, at which I presided, when he said that he was under "psychiatric care" and "needed six weeks" to be ready. D1 next wrote a letter to the court dated 31 August 1999, in which he requested the list of the personal belongings taken from him, compiled while he was in custody at Tsimshatsui Police Station. He stated that this was necessary to show that the case against him had been fabricated. He then went on to complain that an appellant, awaiting his appeal hearing, can opt "not to work" but that this should not bar such a person from being able to receive money to purchase essential items in the canteen. The essence of his complaint was that he was indirectly being forced to work whilst he was still an appellant because if he did not do so he would not be allowed to use the canteen.

28. In a further letter dated 7 October 1999, D1 complained about the witness schedule, with which he had been supplied, being out of date. He then applied, without giving reasons which carried weight with this court, now that we have heard them more fully, for the transcript of 13 further witnesses, although he did make reference to having unfortunately misplaced some of his handwritten notes made during the trial. D1 then went on in this letter to draw attention to a number of details, including the timings given by police officers in their witness statements about a variety of events, in order to demonstrate the unreliability of the police witnesses.

29. To some extent, it may be that D1 is under a misapprehension that this court should conduct another trial of factual issues which arose in the court below. None of the matters which he has raised in this context can have any substance to them at all as they were canvassed during the trial.

30. A day later, in his letter dated 8 October 1999, D1 repeated his request for further transcripts and referred us to some grounds of appeal which were prepared by his trial counsel, Mr. Geoffrey Watson, at the end of what we were informed was a 28-day trial in the District Court. We digress to say that how a case of this apparent simplicity, despite the obvious gravity of its nature, can have lasted 28 days is very difficult to comprehend. However, having heard D1 during the course of a large part of today's court proceedings, it becomes a little easier to follow. Returning to the letter written by D1, this informs the court that Exhibit 107, which was the medical kit box which had been tampered with in Room 739 of the Regal Kowloon Hotel, is something he wished to have re-examined but that he would have, if this was to be done, to rely on "academics and professors" to help him to conduct a private examination. In the event, that application has not been pursued today.

31. The Applicant then occupied most of his 18-page letter by setting out various complaints, all of which appeared to relate to issues that were apparent in the trial or could have been issues if anyone had wished to deal with the matters at that stage.

32. Particular matters which were raised at length by D1 at this hearing concerned the evidence given by PW8 who identified in court all of the Defendants as being the men he recognised in the custody of police at the Eaton Hotel. It was accepted by D1 and the other Defendants at trial that police had arrested them all at that location. Indeed, it would have been hard to dispute it. D1's point was that effectively this was a dock identification. It is a point of no consequence. The identification was of the people who were in the custody of the police and of that there was no issue.

33. D1 went on to deal with matters which he contended affected the truthfulness of police officers engaged in this inquiry. In fact he alleged in a wide-ranging series of complaints that:

(1) Police had planted a key amongst the items found in the safe at the Royal Plaza Hotel.

(2) PW8 could not have seen what he alleged he had been able to see while watching the activities of three men at Room 1310 at the Eaton Hotel.

(3) There was a doubt in the evidence given by police that D3 was the burglar seen leaving Room 1319 at the Eaton Hotel and he referred to the transcripts to make his point.

34. Pausing on this particular point, it is very typical of a number raised by D1. It was his case at trial, as we have already said, that D3 was the burglar who was acting without D1's knowledge.

(4) The evidence of PW1 was that the medical kit box which bore D1's fingerprint was still in her case but the judge mistakenly thought it had been moved.

35. Again pausing there, the finding that it had been tampered with was based on evidence given by PW1 who said that the lock on her luggage had been broken and the contents inside her case had been ransacked.

36. Numerous other points were made. They were individually and collectively trivial points but, to give the flavour of them, they were that the police had failed to photograph the medical kit box contrary, as D1 put it, to normal practice when fingerprints are lifted. He said that the Summary of Facts did not reflect what had been said by D1 in his interview (Exhibit P69A). He also complained that, when being shown the items recovered by police, he was shown photographs of them rather than the items themselves, which he believed should not have been done. He pointed out that in interviews with police, he had allegedly admitted stealing items which no one has ever claimed were stolen so, as he put it, those admissions could have nothing to do with the case. He made a similar point in relation to an admission at page 47 of the Appeal Bundle by saying that it could have nothing to do with the case as no one from the Pacific Hotel had identified stolen goods taken from there. Answer 24 reads:

"Because after we had made the key that afternoon, we took away the key making tools and placed them back in the Royal Plaza Hotel. After that we went out to Pacific Hotel to steal things. After stealing things, we first put the stolen property in Royal Plaza Hotel. After that, at about 1 a.m., we returned to Eaton Hotel for a rest and waited for the right moment to steal things."

37. He then went on to compare the length of time taken to compile each of his interviews indicating that the timings were not consistent, and complaining that one of the statements involved the counting of a large amount of foreign currency which itself would have added considerably to the length of the interview.

38. D1 made one point which is certainly curious on its face, which is that at the end of three of his statements under caution, the police officers responsible for recording them appeared to have been in error as to the number of pages in each of the interviews, and he was able to illustrate this from the records of interview with which we have been provided. However, D1 indicated that although these might seem "trivial", the issue had been fully canvassed before the judge. If D1 is right in saying that in his own view the matter was seemingly trivial, it is hardly surprising that the trial judge, in making no reference to this aspect in his Reasons for Verdict, may also have found the issue trivial.

39. D1 also suggested that the police case as to where the lookouts were allegedly arrested, in relation to the room in the Eaton Hotel which D3 had entered, was hardly consistent with a sensible placement of the lookouts, and he suggested that this was a reason to distrust the evidence of the police. He further complained that unidentified fingerprints were found in Room 1340 at the Royal Plaza which, as he stated, proved there were "someone else involved". However, in the end, he was prepared to concede that it was possible that these were possibly the prints of a previous guest using that room or even of a cleaner.

40. These are some of the points which were raised in this application that has taken the major part of the day.

Conclusion

41. The application, in our judgment, has absolutely no merit at all. The evidence against D1 was overwhelming, and we have no hesitation in dismissing the application. As this has been an application without any merit, we shall order that six months of the period of time spent in custody by D1 shall not count towards his sentence.