HKSAR v. CHAN KIN CHUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.688
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced two charges. The first was one of burglary which alleged that he, on 8th July, at Shatin, having entered as a trespasser Flat B on the first floor of Peak View House, stole a watch, $1,300 in cash, six cans of soft drink and a "Gameboy" cartridge tape. The second alleged that at that time he was unlawfully in Hong Kong. He pleaded guilty to the unlawful remaining charge but not guilty to the burglary charge. He was found guilty after trial before Deputy Judge Wright and sentenced to imprisonment for three years on the burglary charge and twelve months consecutive on the remaining charge. He now seeks leave to appeal against the conviction and sentence on the burglary charge.

2. It was the prosecution evidence as set out by the judge in his Reasons for verdict that at about 1:30 a.m. on 8th July, the householder, from whom the property were stolen, retired for the night. At that time a window in the bedroom of his son was left open. He awoke some five hours later, that would be at about 6:30 a.m., went to his son's bedroom and saw that the mosquito screen that covered the window had been cut. He found that a 'Rolex' watch, $1,300, a 'Gameboy' cartridge and some tins of Coca Cola were missing. He then reported the matter to the police.

3. At around noon on the same day, a Fire Services officer saw the defendant on the ground clutching himself in discomfort. He suspected that he might be an illegal entrant and arranged for an ambulance and the police to attend the scene. The applicant was taken to hospital where surgery was performed upon him for a stomach condition.

4. From the applicant, when he was in hospital, a variety of articles were seized by the police. They included a substantial amount of cash, a 'Rolex' wristwatch and a 'Gameboy' cartridge. The householder positively identified the 'Rolex' watch as the one that had been stolen from his premises. He was unable positively to identify the money and the 'Gameboy' cartridge.

5. In a cautioned statement, the applicant said he was given the watch by one Siu Ting-tak who was another unlawful entrant, and was told to take it back to China. He also said that the watch was one that he had seen Siu wearing a month prior to the date of the offence in Shantou in Mainland China. He said that he and Siu were together at all times after coming to Hong Kong and that they had parted only when he became ill. He said that he had brought the money and the Gameboy cartridge with him from China.

6. When he came to give evidence, he gave an entirely different version of events. He said that his answers, because he was speaking Mandarin, were misunderstood when he was making the statement, and that the watch had been left with him by the man Siu.

7. The trial judge made the following findings:

"I am satisfied that the defendant is unworthy of any belief, and given that PW1 (the householder) was able to positively identify the watch, and given the nature of the items stolen from his premises and the fact that the watch, the 'Gameboy' cartridge, and $1,300 was found six hours alter in the possession of the defendant, I am satisfied that the prosecution has established that those items in the possession of the defendant were the items stolen from the premises of PW1. They were stolen between five and a half and eleven and a half hours previously which, quite clearly, is recent. Although the defendant has tendered an explanation it is a wholly incredible explanation.

Consequently, the three limbs that have to be established before the doctrine of recent possession is operative, have been established. The doctrine is only a particular aspect of the general proposition that when suspicious circumstances appear to demand an explanation and no explanation or an entirely incredible explanation is given, the lack of explanation may warrant an inference of guilty knowledge on the defendant. In the circumstances of this matter there is no other inference which I am able to draw."

He then went on to convict the applicant of the offence of burglary.

8. The applicant in his grounds and before us today has suggested that his health condition was such that he could not have committed the burglary and then made his way to where he was found by the Fire Services officer. This would of course depend upon when he became ill. If he became ill before the time when the burglary was committed, there might well be considerable weight in his submissions. If he became ill after it was committed, then his submissions have no weight at all. The trial judge was satisfied upon the evidence, which in our view was overwhelming, that he had committed the burglary and implicit in this finding is a rejection of the suggestion that he was too ill to have done so. We need deal further only with a suggestion by the applicant in his written grounds that the statement, which was telling evidence against him, was not taken down correctly. The judge very carefully considered that matter and was satisfied, as he was entitled to be, that it was.

9. Nothing of any materiality has been argued before us and the application for leave to appeal against conviction is, therefore, refused.

10. We turn to the application to appeal against sentence. We are satisfied that the sentence of 3 years for the burglary was proper and that the order that the sentence of one year on the remaining charge should be consecutive was also, in the circumstances, a proper order. The application for leave to appeal against sentence is also refused.