HKSAR v. GAO JIAN

CACC 285/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

CRIMINAL APPEAL NO. 285 OF 2005

(ON APPEAL FROM DCCC 219 OF 2005)

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DECISION

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1.  The Applicant has applied for leave to appeal against conviction and he has also applied out of time for leave to appeal against sentence.  He was charged with a single count of burglary, the particulars of offence being that he having entered a construction site on Hoi Fai Road, Kowloon as a trespasser on 31 January 2005, "stole therein one electric drill, on electric saw and one electric grinding machine".

2.  The prosecution witnesses were two police officers who were patrolling inside the construction site at 6:30 a.m.  Their evidence was that they saw the Applicant "moving" the items the subject of the charge by transferring them about 1 metre from the ground onto the ledge of a low internal wall (shown in the centre of Photo No. 6) in the car park of a building being built on the site.  His documents were checked and he was found to be a 2-way permit holder from the mainland.  The Applicant told the police officers that he did not know who the tools belonged to.  The police were not able to locate the owner of the tools even up to the time of trial in June 2005.

3.  The Applicant is not legally represented and his notice of appeal does not raise any specific grounds.  He emphasised in this court that the tools were never claimed and he repeated the evidence he gave at trial that maybe the tools belonged to his friends who worked at the site.  The defence that he had friends who worked at the site was not believed by the trial judge.

4.  I am however prepared to give him leave to appeal on the ground that the only evidence from the officers on the element of appropriation with intention to deprive (which is necessary for the purposes of establishing theft) was that they saw him moving the tools from the ground onto the ledge of a low internal wall inside the site.  There was apparently no evidence as to where the tools had been placed originally, obviously because the owners of the tools were never located.  And there was no clear evidence that the Applicant was indicating that he was about to take the tools away from the site.  He was seen simply lifting the tools from the ground and putting them down again on another (closely proximate) part of the site.  One cannot speculate what further acts he might or might not have done with the tools had the officers not moved in to apprehend him, possibly prematurely.

5.  I consider therefore that the Applicant should have leave to appeal against his conviction for burglary.  As I have given him leave to appeal on conviction, the question of his application for leave to appeal against sentence out of time can be dealt with, when he has formulated his grounds, by the court hearing the appeal against conviction.