HKSAR v. CHAN MAN LEUNG and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 639
(Criminal)

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J U D G M E N T

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

1. The two applicants, CHAN Man-leung (D1) and LEE Hing-chun (D2) were charged with attempted burglary in the District Court. The particulars of offence allege that they together on 19 May 1997 attempted to enter the premises at No. 380 - 382, Portland Street as trespassers with intent to steal in the premises. Both were convicted of the charge by Deputy District Judge Duggan after a trial.

2. They now apply for leave to appeal against conviction.

3. The 1st applicant's grounds of appeal are essentially that the police did not take any statement from him, the exhibits were not found on him and there was no forensic evidence connecting him to these exhibits. Additionally he now says that he was advised by his lawyer not to give evidence and because of that he did not have the opportunity to say that he was not involved in the case. He also adds that the police arrested him by mistake.

4. The 2nd applicant's grounds of appeal are that the evidence of PW1 & PW2, the observing and arresting officers, was unreliable because there were discrepancies and contradictions. The 2nd applicant also says that the District Judge had not sufficiently considered these discrepancies. He has added now a 3rd ground that the ventilation window was too small and it was impossible for him to climb through and the police had arrested him by mistake. He was charged because the police found that he had previous convictions.

5. The prosecution case relies principally on the evidence of PW1, the observing police officer. On the night in question, PW1 was one of a team of five police officers on anti-burglary patrol. The team went to the rear lane of No. 751, Nathan Road and from there they entered a side lane. PW1 and two officers entered the side lane from one end while the remaining officer, one sergeant, entered from the other. When PW1 went to about 15 feet from the rear exit of No. 380 - 382, Portland Street, he saw the 1st applicant standing there. The 1st applicant wore white gloves and was holding an oblong object. He was looking sideways. PW1 then saw the 1st applicant throw down the object and then walk away from him. He heard sound of metal landing on the ground. Then he saw another man, subsequently identified as the 2nd applicant, dart out from the rear exit and walk away from him. At the same time he heard the sound of a heavy object landing on the ground.

6. The exit was illuminated by a fluorescent light. Opposite to this, there was another light. PW1 was therefore able to see clearly what happened. He then shouted to the two applicants to stop but they continued to flee in the opposite direction. PW1 and the other officers then gave chase. When the applicants reached the other end of lane, they were caught by the sergeant and the other police officer who entered from that end of the lane.

7. When PW1 went back to the rear exit of No. 380 - 382, he found a pair of white gloves and two crow bars. He also found a stool right beneath a ventilation window on the wall. The ventilation fan was damaged and a jack was wedged between two twisted iron bars of the ventilation window. He further found a saw blade and a screw driver on the ground. He seized them and had them produced as exhibits. He told the judge that the sound he heard of falling objects was consistent with the blade and the screw driver being thrown onto the ground.

8. PW2 who was behind PW1 at the time did not see the applicants at the rear exit of the premises but he heard the sound of metal objects falling onto the ground.

9. The Deputy District Judge found that "there were no discrepancies in the evidence of the prosecution witnesses which let him to doubt the reliability of the evidence of PW1". He found PW1 a reliable witness. The Deputy District Judge accepted that there was sufficient lighting at the scene for PW1 to see clearly what happened at the time. He accepted the evidence of PW1 in full. He found the evidence of PW2 support to some extent the evidence of PW1.

10. He found the jack was used to prise open the bars on the ventilation window to gain access inside the premises. The sound of metal objects landing on the ground was caused by the saw blade and the screw driver when the applicants threw them away. He found the stool was there to enable the applicants to reach the ventilation window. He inferred from the evidence he accepted that the two applicants were in the course of trying to break into premises when PW1 saw them. The applicants did not give evidence at the trial.

11. We have considered the circumstance of the case, and in so far as the ground of the 1st applicant is concerned, that he was advised by his lawyer not to give evidence, so that he did not have the opportunity to say his version of the events, the decision was for him whether to take that advice. We have no evidence to show that the lawyer had not given the advice properly.

12. From the evidence it is accepted the judge was entitled to draw the inference that the applicants had committed the offence charged. The judge was aware of the lack of forensic evidence but this is immaterial in the circumstances of this case. There was ample evidence for the judge to convict the two applicants. There is absolutely no merit in their applications for leave to appeal against conviction and the applications must be dismissed.

13. As we indicated before the hearing of this appeal, where there is absolutely no merit in an application, this court has the power to make an order that the time spent by the applicants in detention should not be reckoned as part of the sentence. Since these applications are without merit, we order that 3 months of the time in which each of the applicants had spent in detention pending appeal should not be reckoned as part of their sentence.