THE QUEEN v. TSEUNG KWONG WAH AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Stock, J. (Giving the judgment of the Court):

1. These are applications for leave to appeal against convictions. Both applicants were convicted after trial in the District Court. They originally faced five charges but the Crown offered no evidence in respect of two, and the trial proceeded on the remaining three with which we now concerned. We shall, where convenient, refer to the applicants as they were referred to at trial, namely, as the 1st and 2nd defendants.

2. The first charge, which lay against both applicants, was a charge of burglary, and it was alleged that on 16th December 1994, they entered a storeroom in Tseung Kwan O, and stole from it over 2,000 circuit breakers, 315 isolators and 148 shaver sockets.

3. Each applicant was also charged separately with resisting a police officer in the due execution of his duty. They both pleaded not guilty to all three charges but were in due course convicted on each.

4. The electrical equipment which they are said to have stolen belonged to a company that had been engaged to install electrical appliances in flats to be occupied by the Fire Services Department. The store house in which the equipment was kept was on a construction site where the flats were built or where they were to be built.

5. On the night of 16th December, the proprietor of the company was called by the site watchman and he went to the site. When he arrived, the police were there. There he saw that the door to the storeroom had been cut open, apparently with an oxy-acetylene flame. Then he was taken to various places within and also outside the construction site where he saw boxes of isolators, circuits, and sockets. These boxes had been in the storeroom in the morning; and when he, the proprietor, had last been to the site, the door had not been in the breached condition in which he found it that night. There were also two oxy-acetylene gas cylinders on the site. That were not the property of his company.

6. The Crown's case was that the applicants were caught red-handed. The prosecution evidence was that officers on routine patrol that night near the site heard noises from the direction of the forest abutting the site. They went to investigate. There, according to the evidence, they saw the 2nd defendant moving two boxes, and the 1st defendant emerging from the construction site through a gap in the hoarding. A torch or torches were shone by the police in their direction. They were but a few feet away from the applicants. The 2nd defendant dropped the boxes, and off the two applicants are said to have run, with the officers in hot pursuit. A call for police assistance had been made, and other officers reached the scene and the defendants were seen running with men following behind with torches. Each applicant was caught by one of the officers who had arrived at the scene in response to the calls for assistance. The officer who had first seen the applicants in the forest had all the while pursued them both, and his evidence, which was accepted by the judge, was that neither applicant was out of his sight from the moment he first saw them to the time of their apprehension, and he remained always a short distance from them.

7. There was evidence from the two uniformed officers who caught the applicants that when each was told that he was under arrest for burglary, and an attempt made to handcuff them, each pushed away his arresting officer and fled. The 2nd defendant is said to have made two attempts to resist arrest or restraint, and there was occasioned a struggle between him and the policeman who arrested him. On the 1st defendant were found keys to a van parked a few minutes walk from the construction site.

8. Before the close of the prosecution case, the judge, counsel and the applicants, together with some of the police witnesses, went to examine the place where the construction site used to be, and to the area of the suggested chase, and also to a restaurant which features as part of the defence case, and to which I shall shortly refer.

9. Both applicants gave evidence. Their defence was straightforward. It was that the 1st defendant had arranged to go to a restaurant that night at the Po Lam Estate to meet a friend for a meal, so he and the 2nd defendant travelled there in a van which the 1st defendant had borrowed. Although there was a covered car park in the Po Lam Estate near the restaurant, he parked the van where he did, a place which turned out to be a few minutes walk from the construction site, because parking there was free. He had been to this restaurant once or twice before. As the two applicants walked in the direction of the restaurant from the open car park, they were approached by three officers who asked what they were doing, but their story was not believed, and they were accused of burglary and told that they would be assaulted if they denied the allegation. They said that they were then handcuffed and in fact assaulted. Their evidence was that they had not been running at all, nor had they resisted arrest. The evidence of the 2nd defendant was to very much the same effect.

10. A further witness was called by the applicants in their defence, namely, the man who they said they were going to meet for dinner at the restaurant. He gave evidence about the dinner appointment.

11. The applicants, who appear before us unrepresented, have put forward a number of grounds of appeal. We have read these carefully. It is suggested that there is a lack of direct evidence in a number of material aspects. The 1st defendant says that there is no evidence that he was on the site; that no stolen property was found on him when he was taken to the police station; that the oxy-acetylene machine was not demonstrated to be his; and that no fingerprints of his were shown to have been found on the stolen property. The 2nd defendant makes points to the same effect. The answer to these particular points is that direct evidence along those lines was unnecessary, for if the evidence of the police officers was accepted, as indeed it was, complicity in the burglary of the stolen property was the only reasonable inference to be drawn from the various limbs of the prosecution case.

12. A point is then made by the applicants that the lighting was insufficiently clear to enable an identification to be made, and that the time for observation of them by the police was very limited. This is a point which in the event does not avail the applicants for the evidence was that from first to last, they were within sight of the officers who first saw them, and that there is no question but that they were the same persons who were ultimately apprehended by the officers named in the second and third charges.

13. Then in the grounds of appeal, there are one or two suggested improbabilities in the prosecution evidence. We have examined these, but are bound to say that we find there is nothing of substance in them. It is further said that some police officers who could have provided corroborating evidence were not called, a matter which it is said ought to devalue the weight of the Crown case. There was no obligation to call these witnesses. The evidence of those called, if believed, sufficed to found the findings of guilt.

14. In her reasons for verdict the trial judge has accurately summarised the effect of the evidence given on both sides. In particular, she has specifically directed her attention to the suggestions made that the defendants were framed by officers who must, contrary to their evidence, have all of them been drawn to the scene by reports by the watchman that a burglary had taken place. Alert to those allegations, she has expressed herself satisfied with the credibility of the officers whose testimony she received.

15. It is also evident from her reasons for verdict that she has addressed herself to the correct standard of proof. This is very much a case of two wholly inconsistent accounts, one for the Crown, the other by the defendants. It is a case in which a conviction was bound to follow in the event that the key witnesses for the prosecution were believed, for if their evidence be correct there could be no other conclusion which a court properly directing itself as to law could reasonably have reached. The judge was entitled to take the view of the evidence which she did.

16. I should say that at the outset of this appeal, the 2nd applicant asked for access to a number of items of evidence. He wanted to see photographs taken of the two applicants on the night of their arrest, apparently to test the evidence of the officers as to what clothing was worn by the men seen in the forest. Then he wanted to ascertain the result of fingerprint examinations which were apparently conducted, and finally he wanted to see the oxy-acetylene cylinders to test their weight to see whether they could be carried by two persons. The applicants should understand that this is not a re-trial and that the Court of Appeal does not save in exceptional circumstances consider fresh evidence. Such exceptional circumstances do not here exist, but nonetheless, we are entirely satisfied that there is nothing in any of the avenues which the 2nd applicant wishes to pursue, which could conceivably advance the appeal in favour of either applicant.

17. In the event, nothing has been raised which gives cause for any doubt about the safety of these convictions. Accordingly, the applications for leave to appeal are dismissed.