HKSAR v. LI KWAN

CACC 371/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 371 OF 1999

(ON APPEAL FROM DCCC 383 OF 1999)

---------------------------

----------------------

J U D G M E N T

----------------------

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

1. The applicant, Li Kwan, was charged in the District Court before His Honour Judge de Souza along with a co-accused, D1, on 9 July 1999. He was convicted on three charges; in charge 1, jointly with D1, with burglary of what was referred to as House 55 in Wo Hop Shek Tsuen, Fanling and there having stolen one wallet, one radio and HK$169. The second charge which related only to him, was also of burglary of a building referred to as No. 54, Wo Hop Shek Tsuen, and there having stolen two screwdrivers, one hammer, one spanner, twelve oranges, six apples, nine cans of beer and two cans of soft drinks. The third charge against him was of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully. To the last he pleaded guilty. He was tried on the first two counts and convicted. He was sentenced to 3 years on the first count, 21/2 years on the second, and 6 months on the remaining count. The sentences on the first and second charges were to run concurrently with each other, but consecutive to the last, so that he was sentenced to a total of 3 1/2 years. He now seeks leave to appeal against conviction on the two burglary counts, i.e. the first and second counts.

2. The facts are in reality quite simple. On the night of the offences, i.e. 2 April 1999, the occupant of No. 55, the premises which are the subject of the first charge, Mrs Chung Choi-sheung, was asleep with her son. She was awakened by noises and she telephoned the police. A police party went very promptly to the scene. One of them gave evidence that he saw a person, who turned out to be the 1st defendant, D1, climbing out of Mrs Chung's house; he was chased and apprehended. Two other officers at the same time saw D2 climbing from a ground floor window of Mrs Chung's house. They were able to restrain him while other police officers chased after D1. Their evidence was that the applicant, D2, made certain admissions. The police later in a lane between the buildings found at the back of Mrs Chung's house two screwdrivers, a spanner and a hammer. There were also bags which contained cans of Heinneken beer, oranges, apples and two cans of Coca Cola. Evidence was given that some of these came from the premises burgled. The applicant was later interviewed under caution and statements recorded from him admitting both burglaries, and that he had entered No. 54 first.

3. The applicant's version at his trial was that he had come to Hong Kong. He realised that night that as an illegal immigrant, he would not get a job. In those early hours of the morning, he was looking for a container truck to take him back to the Mainland. Fortuitously, he happened to be passing House No. 54 just at the time D1 was escaping from that building. He did not know D1, whom he thought was a thief. The police arrested him. They concocted the statements out of their imaginations, as he has repeated before us today.

4. The judge carefully examined the evidence and accepted that of the police witnesses. Before we come to that, in his application for leave to appeal against his conviction, the applicant simply states that he has evidence to prove that the 2nd police witness had been telling lies and the evidence of the 1st witness failed to prove that he was guilty. Before us today, he has elaborated upon that. He asks for virtually all the evidence given below to be provided to him so that he can analyse it. He says that there were discrepancies between the police witnesses. He says also that the knife he was charged with stealing from one of the buildings was not taken from there but was a fruit knife he had brought from China. He goes into considerable detail in disputing the findings made by the judge. He makes numerous complaints about the evidence of the police and about the interpreter, Mr Yuen, whom he says misled him into accepting the police version on the basis that he would receive a discount of one-third.

5. The applicant was represented at the trial and those matters were raised and canvassed. When one considers the evidence of the police, quite apart from the fact that the judge saw and heard their evidence as he did that of the applicant, and the circumstances of the offence, it is not at all surprising that the judge accepted the evidence of the police and the other evidence, and rejected that of the applicant, which it has to be said is wholly incredible on its face.

6. We can find no reason to fault the judge's acceptance of the police witnesses' evidence, and following that, their account of what occurred, and the admissions made; nor any reason to fault the judge's conclusions upon that evidence and his finding the applicant guilty. Nothing the applicant has said before us in any way leads us to doubt those conclusions. True there were discrepancies in the police evidence. The judge dealt with them and they do not undermine the evidence against him, which was overwhelming. We find no merit whatsoever in his numerous complaints. We refuse him leave to appeal against conviction.

7. Having regard to the total absence of any merit in his grounds, we disallow a period of 4 months from the time he has spent in custody, so that the result will be that his sentence will in fact be increased by 4 months.