HKSAR v. WONG FEI AND ANOTHER

CACC 562/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 562 OF 1998

(ON APPEAL FROM CRIMINAL CASE NO. 930 OF 1998)

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J U D G M E N T

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

1. The two applicants with one other co-defendant were charged with one offence of burglary and other charges of unlawfully remaining in Hong Kong having landed unlawfully. After being tried by Her Honour Judge H.C. Wong, they were convicted and sentenced to terms of imprisonment. The two applicants, who were the 2nd and 3rd defendants respectively, now seek leave to appeal against their convictions on the burglary charge. That charge was stated in the following way:

"Statement of Offence

Burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210."

The particulars of the offence were as follows:

" LAM Sang, WONG Fei and FU Chung-leung, on the 22nd day of July, 1998, at Central, in Hong Kong, entered as a trespasser part of a building known as House 8, No. 37, Severn Road, the Peak, with intent to steal therein."

2. The prosecution evidence accepted by the judge was that about 11 o'clock on the morning of 22 July 1998 a security alarm at a development of eight houses at 37 Severn Road on the Peak was triggered. It came from House 8. A security guard, later to give evidence as PW6, responded to it. He very astutely did not go directly to House 8, because he knew that the occupant had gone away, but went to House 7 which was under renovation. From the second floor balcony of House 7, he noticed there was one person within the balcony of the second floor of House 8. He saw two other persons within the terrace on the ground floor of House 8. He gave evidence at the trial that he noticed the man in the balcony on the second floor of House 8 pushing the glass door trying to get into the house. He also noticed the two men on the ground floor doing the same thing trying to slide open the glass door. He returned to the guardroom, reported to the police who came within a few minutes. He took a police constable, who later give evidence as PW7, to House 8. PW7 found one man on the second floor balcony of House 8 and two men on the ground floor. He gave evidence that at the time he was on the balcony of House 7, the man in the balcony of House 8 noticed him and left House 8 going off in the direction of Gough Hill Road by climbing over the fence. The other two also did so. He tried to intercept them but they got away.

3. Later in the afternoon, about 2 o'clock while on motor-cycle patrol, PW7 and a colleague intercepted the three males walking down Gough Hill Road. The three were arrested. They did not dispute that they were illegal immigrants. In fact Wong and Fu, the two applicants, have told us today that they sneaked into Hong Kong and took public transport to the Peak. The only dispute is whether, in Wong's case, he had any intention to steal because, he says, he heard policemen in the area and went to the balcony to hide from them. As far as Fu is concerned, the question in issue is whether he entered the terrace of House 8 because he says he went straight down the hill and did not go to House 8 at all. Accordingly, it is not necessary to enter into all the details of the evidence. The judge went very carefully into it all and in her judgment, running to some seven pages of densely typed script, she set it all out. What it all boils down to is whether she believed the security guard, PW6, and the policeman, PW7, or the three defendants. She went carefully into the evidence. What she said is this:

"I have heard PW6 [the security guard] in this regard and the police officer (PW7) giving evidence in court and I have observed their demeanour in court. I find that they were both honest and reliable witnesses. Both witnesses have been able to give clear descriptions of the three defendants, rather their description matched the description of the three defendants, including their clothes, ages, and appearances.

I accept their evidence that all three defendants were seen at House 8, that the 2nd defendant was on the 2nd floor balcony while the 1st and 3rd defendants were at the ground floor terrace of House 8."

She added:

"It is clear that the three defendants had been at these locations for a consideration time before they eventually left in the direction of 24 Gough Hill Road."

She was satisfied that there was no mistaken identification and indeed it is difficult to see in the circumstances how there could have been a case of mistaken identification given the evidence and versions here of the applicants.

4. Coming to the ground urged upon this Court by the 1st applicant, Wong, that he was in the balcony simply to escape the police, we have no difficulty in concluding that there is nothing in it. It is totally inconsistent with the evidence that the judge accepted, and the judge rejected and was clearly entitled to reject his evidence. Likewise, Fu's allegation that he never entered the terrace of House 8 was also rejected, and the judge accepted the evidence of two witnesses that he did enter the terrace and she was entitled to do so. Clearly there is no merit whatsoever in the applicants' complaints against the convictions.

5. This Court has power in effect to increase the sentences by disallowing the time the applicants spent in custody. They should count themselves lucky that we have not done so on this occasion. If they have occasion to be again before the Court, they should consider carefully before bringing worthless grounds and wasting the time of the Court.