HKSAR v. CHOW CHU TAK

CACC 572/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 572 OF 1998

(ON APPEAL FROM DCCC 670/1998)

-----------------------

----------------------

J U D G M E N T

----------------------

Mayo J.A. (giving the judgment of the Court):

1. The applicant was convicted after a trial in the District Court before H.H. Judge Poon of burglary. He now seeks leave to appeal against his conviction.

2. The scope of this application comes within a very narrow compass. Particulars of the charge the applicant had to face read:

"CHOW Chu-tak, on or about the 24th day of March, 1998 at Tsimshatsui, Kowloon, in Hong Kong, having entered as a trespasser a part of a building known as GFI Company Limited, Room 604, Block A, New Mandarin Plaza, No. 14, Science Museum Road, stole therein one mobile phone."

3. The prosecution case is briefly summarised on the first and second pages of the Judge's Reasons for Verdict:

"The prosecution called five witnesses. PW1, LEUNG Chi-yuen, the owner of the mobile phone, worked in GFI Company Limited situated at the address stated in the particulars of the charge. On the day in question he went to work at 8.30 am and before he started work, he placed his bag containing his mobile phone underneath his desk. He went out for lunch leaving the bag with the mobile phone at about 1 pm and returned to his office about 2 pm.

PW2, IP Mei-yung was employed by Bluebox International Company Limited situated at Room 1203 East Ocean Commercial Building at about just two to three minutes walk from the address of the GFI Company Limited. At about 1.30 pm on that day, she saw the defendant and another male at her office looking for PW3, CHEUNG Yuk-yung. As PW3 was out for lunch she kept company with the defendant and the other male until PW3's return.

When PW3 returned shortly thereafter, he invited both males to go inside the conference room for the purpose of discussing business. During the discussion the defendant had gone out for about two to three minutes on the pretext of having to smoke. When the defendant later returned to the conference room, the two males left after the defendant told PW3 that they had to leave for fear that his car parked downstairs would be booked.

PW4 (PC 46963) and PW5 (PC 42250) were on high-rise patrol in East Ocean Commercial Centre at 1.40 pm, when they saw the defendant and the other male coming out from the 12th floor corridor and enter the rear staircase. When they tried to stop the two males, the two males paid no heed and hurried down to the 11th floor, where they were eventually stopped and questioned separately.

PW4 found the mobile phone (Exhibit P1) belonging to PW1 stuck inside the defendant's trousers at his back in the area of his waist during a search. There were also some foreign currencies (Exhibit P2) found. When questioned, the defendant said that he was given the mobile phone that morning by a friend called Ah Hung shortly after 10 am in a billiard hall. When he was arrested and cautioned, he said that the phone was given to him by his friend to take to China to sell. Later on that day PW4 also recorded another record of interview (Exhibits P4 and P4A) from the defendant."

4. There is effectively one Perfected Ground of Appeal:

"1. The learned Judge erred in finding that the prosecution has proved that the Applicant had entered Room 604, Block A, New Mandarin Plaza, 14 Science Museum Road as a trespasser and stole the mobile phone therein as charged [p5A-D]. Such a finding was wrong in that: -

(a) The learned Judged, when in setting out the prosecution case, incorrectly stated that PW1, Leung Chi-yuen, the owner of the mobile phone worked in GFI Company Limited situated at the address stated in the particulars of the charge [p1 L-N] when in fact PW1 did not give evidence as to the address which he was at on 24th March 1998 when his mobile phone was stolen [p13 I-M]; and

(b) there were no other evidence to show that PW1 was at Room 604, Block A, New Mandarin Plaza, 14 Science Museum Road, the address particularized in the charge on the day when his mobile phone was stolen."

5. It is perfectly clear from the transcript of PW1's evidence that GFI Company Limited did operate at the address given in the charge. At p.16 of the appeal bundle there is reference to the company being situated at "this address". Quite clearly the address in question is the address of the company particularized in the charge.

6. Mr. Saw, S.C. has helpfully pointed out that the particulars of the address contained in the charge were surplusage as they did not constitute a material averment. This is an even more compelling reason why this application should be dismissed. There is no merit whatever in this ground and the application is dismissed.