R. v. CHAN KA MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1410 of 1996

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J U D G M E N T

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1. On 11th October 1996 the Appellant Chan Ka Man was convicted of burglary with intent to steal at shop premises at Ngau Tau Kok Road, Kowloon. He was sentenced to 12 months imprisonment. He now appeals against conviction only.

2. The prosecution case was based on the evidence of the owner of the shop premises and a team of police officers consisting of two sergeants and two police constables. The Appellant gave no evidence.

3. On 6th April 1995, at 1:30 a.m. the owner closed and locked up his shop premises and switched on the burglar alarm. At 4:00 a.m. he returned to his shop after he received a message from the security company and he found police officers there and his shop had been burgled. He found money and cigarettes as well as a waist bag were stolen. Police officers gave evidence that while they were on patrol at 3:45 a.m. outside the shop premises, they noticed the alarm had been activated. They saw the Appellant run out of the shop premises holding a plastic bag. They saw the Appellant face to face and later they saw the Appellant get into a taxi. Two officers then gave chase in another taxi. The Appellant's taxi was finally intercepted at a road block set up by one of the police witnesses and the Appellant was found sitting in the back seat of the taxi. Beside him on the seat was a waist bag which later was identified by the owner of the shop as his. During the chase, the officers saw a number of items being thrown out of the taxi. Three chisels, a glove and a piece of paper were recovered subsequently along the route. The premises were checked and found to have been broken into. The issue was whether the officers' evidence of identification that the Appellant was the burglar who got into the taxi which was eventually intercepted is reliable.

4. The magistrate directed himself to the burden of proof bearing in mind that the Appellant's not giving evidence was not to be held as something prejudicial to his case. He also bore in mind that no cigarette or money had been found in the Appellant's taxi. He accepted the evidence of the police officers.

5. However, he found the premises were broken into and ransacked shortly before 3:45 a.m. and the Appellant was seen coming out of the premises holding a bag at about 3:45 a.m. The Appellant got into a taxi from which a bag was seen thrown out of it during the chase. This bag contained instruments capable of being used for housebreaking and the bag was similar to that the Appellant was seen holding when he came out of the shop premises. The magistrate found the Appellant had broken into the shop premises and inferred that the Appellant entered the premises with intent to steal. The magistrate was not sure that the Appellant stole anything whilst on the premises and he therefore convicted him of the alternative offence of burglary with intent to steal.

6. From the evidence accepted by the magistrate, the only inference that the magistrate could draw was that the Appellant had broken into the shop premises with intent to steal. On the evidence before him the magistrate was entitled to draw this inference. The magistrate was right in not convicting the Appellant of burglary when he was not sure that property had been stolen by the Appellant. The finding of the magistrate is supported by the evidence and there is nothing which would affect this finding. The appeal against conviction is dismissed.