HKSAR v. CHUANG CHEONG LAM AND ANOTHER

CACC 133/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 133 OF 1999

(ON APPEAL FROM DCCC 3 OF 99)

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J U D G M E N T

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Wong, J.A.:

1. The applicants, Chuang Cheong-lam (the 1st defendant) and Cheng Lap-wah (the 2nd defendant) were convicted after trial before His Honour Judge Line in the District Court of one charge of attempted burglary and was each sentenced to a term of imprisonment for 3 years. They now apply for leave to appeal against conviction.

2. The particulars of the offence are that:-

"Chuang Cheong-lam and Cheng Lap-wah, on about the 14th day of November, 1998, at Yaumatei, Kowloon, Hong Kong, attempted to enter as a trespasser a part of a building known as Taiwan Kwong Leung Hing Food Company, Ground Floor, No. 493A, Nathan Road, with intent to steal therein."

3. The facts are simple. At about 4 o'clock in the early morning of 14 November last year, a police vehicle with two officers on board, who were PW1 and PW2 at the trial, were travelling along Nathan Road in the direction of Tsimshatsui. PW1 saw two men at the shutter of a shop on the corner of Nathan Road and Man Ming Lane. One of the men was holding some red clippers and they were held facing the metal shutter. He shouted out that "Someone is cutting the shutter." The police vehicle immediately stopped and the officers got off and went towards the two men who walked and then ran off. There was a chase. PW1 followed one of them and he went down Man Ming Lane into Arthur Street, down another lane, into a back alley, back towards Man Ming Lane again and then eventually to Temple Street.

4. This officer said that apart from one or two seconds when he lost sight of the man, he always had him under his observation. He caught up with him, got him to the ground, pinned him down and he identified the man as the 1st defendant in this case.

5. The other officer, PW2, also gave chase to the other man but lost him. The other man was wearing a white wind-breaker.

6. The 1st defendant was the registered owner of a van which was parked in the carpark in Man Ming Lane. He said in his evidence that he was walking down Man Ming Lane to his van when a man ran past him and the policemen came up to him, patted him on the back and told him to lie down on the ground. He was arrested.

7. The police apparently kept watch on the 1st defendant's van and at about 7 o'clock that same morning, the 2nd defendant was seen going to the van with three males and one female. One of the males retrieved a black bag from the van and gave it to the 2nd defendant. The female was carrying a plastic bag which contained the 2nd defendant's white wind-breaker. The 2nd defendant was arrested.

8. Both applicants made statements to the police after their arrests. The 1st defendant also made oral admissions at the time of his arrest. The judge conducted a voir dire to determine the admissibility of these admissions and at the end, he excluded the admissions, both written and verbal, of the 1st defendant but he admitted the statements of the 2nd defendant. He gave full reasons for so doing in his Reasons for Verdict. We will not repeat those reasons.

9. We are satisfied that he had given sufficient and careful considerations to all the matters raised in this regard.

10. The applicants gave evidence and the 2nd defendant also called two alibi witnesses. The 1st defendant gave his evidence along the line that I have already indicated and that is he was stopped by the police on his way to his van in the carpark whereas the 2nd defendant and his witnesses said that they were playing mahjong at the time. Suffice it to say that the judge rejected their evidence.

11. It is clear that the judge convicted the 1st defendant on the evidence of identification by PW1 and the evidence of PW2 of the clothing the 1st defendant was wearing, which was a dark vest jacket with upper garment of horizontal stripes. PW1 had him under observation all the time except for a second or two when he lost sight of the 1st defendant. The evidence against the 2nd defendant was basically his own confession. There was also circumstantial evidence that he was at the 1st defendant's van some 3 hours after the offence. The carrier bag the female was carrying had a white wind-breaker resembling the one the second man at the shutter of the shop was wearing.

12. Mr Wong who represents the 1st defendant before us made an application for the transcript of the two officers. We refused that application and he then went on to represent the 1st defendant after the lunch adjournment, having obtained his client's instructions to do so. He formulated two grounds of appeal: (1) the learned trial judge gave insufficient consideration to the evidence of the 1st defendant, PW1 and PW2, regarding the evidence of identification. That is to say the evidence of identification would, in the circumstances, be unsafe and unsatisfactory. (2) the trial judge did not give or gave sufficient consideration to the issue of the chain of evidence relating to the padlock, and that is he did not attach sufficient weight to the evidence of PW2 that he did not notice that the padlock was broken in the state that was produced in court. He submitted that that aspect of the evidence goes to the question of attempt. He submitted that if the padlock was not broken, the charge of attempted burglary was not made out. We have no hesitation to reject these submissions.

13. The 2nd defendant is not legally represented. He sets out his complaints in a letter to this court. These grounds had been summarised and explained to the applicant by the Vice-President earlier on. We will not repeat the contents of the letter. Before us to-day, he made two further complaints and the first one was about the padlock with which Mr Wong had already dealt and the second one was that his confession should not have been admitted because he was also subjected to violence by the police in the course of the taking of the statement.

14. The judge had dealt with the objection and given full reasons. We find nothing to suggest that he was not entitled to admit the statements.

15. In regard to the question of identification, the judge dealt with it in this way. At page 10, the bottom paragraph, the judge said:

"D1 gave his evidence perfectly nicely in the witness-box in the sense of his demeanour, but the fact was putting his evidence in the scales against PW1, they came down firmly on PW1's side. I believe PW1. I disbelieved D1. It is not always easy to explain why one prefers the evidence of one witness rather than another; why one man's word would make me sure and another man's would not. It is a mixture of many things. All I can say in this case is that PW1 made me sure that D1 was the man that ran from the shutters, dropped the clippers and was eventually pinned to the ground by him."

And at page 12, the judge mentioned about the vest and the striped top the 1st defendant was wearing. There was evidence from PW2 that he saw the 1st defendant wearing this clothing and there is no dispute that at the time of arrest the 1st defendant was wearing precisely the same clothing. We are satisfied that there is ample evidence to support the judge's finding in so far as identification was concerned.

16. In relation to the padlock, the judge also dealt with it in a very clear and a succinct manner. He said at page 12:

"It was submitted on behalf of D1 that I could not be sure that whoever it was who was chased from those shutters with the bolt cutters, was attempting to burgle the premises. I rejected that submission. The inference that that man was attempting to burgle was obvious. Thus, on my relation of the facts at the opening of these reasons, it could be seen that PW1 saw enough to realise that those clippers were being used to break the shutters and the padlock was later found to have been severed.

PW2 gave evidence about the padlock. When it was produced in court, the hasp, the bit at the top, was clearly in two pieces. He said when he saw it, it did not look like that. At the place where the severance now can be seen, he said that is where it was damaged, but at the time he said he did not examine it to see if it had been fully severed. In the circumstances of this case, what seems absolutely apparent is that it had been fully severed but it had not moved out of alignment, one part with the other. The idea that some other burglar came and severed this on the night, or that the shopkeeper put a severed padlock on, are just fanciful and I am not going to pursue that line any further."

17. In our view, this sums up the judge's finding on this aspect clearly and correctly. We do not think whether the padlock, severed or not, and whether PW2 had seen it or not, is a matter of any importance. It does not affect the validity of the charge.

18. The judge had given very careful consideration to all the matters and he evaluated the evidence in a fair and careful manner. There is no doubt in our mind that the conclusion that he has reached is fully supported by the evidence. There is nothing to suggest to us that he was wrong on any issue of fact or any issue of law.

19. We agree with the findings and conclusions of the judge and we are satisfied that the convictions are neither unsafe nor unsatisfactory. Accordingly, the applications for leave to appeal against conviction are dismissed.

20. The 2nd defendant also seeks leave to appeal against the sentence of 3 years. The applicant was convicted after trial and the judge was quite right that he was not entitled to any discount.

21. It should be borne in mind that burglary and attempting to do so is a serious crime and a sentence of three years would not be out of line in the light that the sentence was imposed after a not guilty plea and the fact that he has an appalling criminal record consisting of burglaries, robberies and thefts. He has been in and out of prisons in the past ten years. I do not believe him when he told us that he is now very remorseful for what he did.

22. Having given very careful consideration to the facts of this case, his record, his background and what he tells us to-day, we are unable to disturb the sentence. The appeal is completely unmeritorious and we would dismiss the application to leave against sentence. We also order a loss of time of four months.

Leong, JA:

23. I agree.

Stuart-Moore, V-P:

24. Judge Line had recognised that in normal circumstances a three-year sentence was on the heavy side for attempting to burgle commercial premises. The sentence which he imposed was against the background of an appalling criminal record which Wong, J.A. has just outlined. On two occasions, the applicant received sentences of 2 1/2 years for a number of burglaries. Later, he received 7 years for robbery and, after his release, he received a further 6 1/2 years for a further case involving robbery and conspiracy to steal. It was in that light that the present sentence was imposed. I entirely agree that D2's application relating to sentence was utterly unmeritorious.