HKSAR v. CHAN KA WAH

CACC 74/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 74 OF 2011

(ON APPEAL FROM DCCC NO 990 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the judgment of the court):

1.  The applicant was charged with one count of Burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 (1^st Count), and one count of Wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212 (2^nd Count). The applicant pleaded not guilty and was convicted after trial before HH Judge Anthea Pang.

2.  Judge Pang sentenced the applicant to 3 years and 6 months’ imprisonment for the 1^st Count, and 27 months’ imprisonment for the 2^nd Count.  She ordered 12 months of the 27 months imposed on the 2^nd Count to run consecutively to the sentence imposed on the 1^st Count, making a total of 4 years and 6 months imprisonment.

3.  As the applicant was then serving a 30‑month sentence of imprisonment, Judge Pang ordered the total sentence of 4½ years to run wholly concurrently with the remaining term of the said 30‑month sentence.

4.  By a notice dated 24 February 2011, the applicant sought leave to appeal against conviction.  Yuen JA refused his application on 11 August 2011.  By a notice dated 25 August 2011, the applicant renewed his application for leave to appeal against conviction.  On 6 September 2011, the applicant also lodged an application for leave to appeal against sentence out of time.

5.  At the end of the hearing we refused to grant leave to appeal against both the conviction and the sentence out of time.  We also directed that three months of the time during which the applicant was in custody pending the determination of his appeal not be reckoned as part of the term of the sentence to which he is for the time being subject.  In other words, there was a “loss of time” of three months.  We indicated then that we would give our reasons later.  This we now do.

The prosecution case

6.  The prosecution case was that the male victim and his wife resided at a flat on the 3^rd floor of No 265 Castle Peak Road.  At around 2 am on 5 July 2009 the victim alone returned home and chanced upon an intruder (a male whom the victim described to be around 40 years of age and about 5 feet 2 inches to 5 feet 4 inches in height) coming out of his bedroom inside his flat.  The intruder was holding a pair of scissors and pointing it at the victim in a threatening manner.  The victim, who is 5 feet 10 inches tall, managed to kick away the scissors and pushed the intruder against the wall after the two struggled for about 5 to 6 minutes.  While the intruder was thus pressed against the wall, the intruder grabbed a glass bottle of ketchup placed nearby and hit the victim over the head with it more than 10 times.  The glass bottle broke in the process and the victim bled profusely as a result.  The intruder then fled from the flat.

7.  The victim called the police who arrived a few minutes later.  The victim was sent to the Caritas Medical Centre for treatment.

8.  It was an admitted fact that the victim sustained the following injuries:

(a)  3 laceration wounds on his face, measuring 3 cm, 2.5 cm and 0.8 cm in length respectively and which required suturing by 5 stitches, 4 stitches and 2 stitches;

(b)  2 laceration wounds on his scalp, measuring 3 cm and 1 cm in length respectively and which required suturing by 3 stitches and 1 stitch;

(c)  1 cm laceration wound on his right middle finger; and

(d)  multiple abrasions on both his hands and forearms.

9.  Meanwhile, an officer found blood stains on the 1^st and 2^nd floor staircase of the building at No 265 Castle Road, the officer took samples of the blood stains for analysis.  The same officer also found the top part of a broken glass ketchup bottle on the ground floor outside No 267 Castle Peak Road — which was next to No 265 Castle Peak Road — and he seized the bottle as an exhibit.

10.  It was admitted that no fingerprints belonging to the applicant were found inside the victim’s home.  However, the applicant’s DNA was present in the blood stains located on the staircase area and on the broken glass bottle neck.

11.  The victim failed to identify the applicant during a formal identification parade.

The defence case

12.  The applicant gave evidence that at about 2 am to 3 am on 5 July 2009, he went to look for his son who had moved away from home.  He went out at that time because he had learned that his son was working in a 7‑11 shop on Castle Peak Road during the small hours.  On his way he accidentally bumped into a group of men and these people then bashed him on his head with a wooden plank.  The bashing caused him injuries and he was bleeding.  While he was getting away from the group, he went up the stairs of a building when he noticed the main door was open.  He stopped between the 2^nd and 3^rd floor and he picked up a broken glass bottle from the staircase to use for self‑defence in case his assailants, who were pursuing him, found him.  That was his explanation as to how and why his DNA was present in the blood stains and on the broken glass bottle neck.

13.  The applicant said that he waited for a few minutes and as nothing happened, he went downstairs and threw the broken glass bottle into a rubbish bin on the ground level.  He then went home.  The applicant said did not make a report to the police about the attack as he considered it a minor matter.  He did not seek medical treatment either.

14.  The applicant testified that he had a stroke about 10 years ago.  He said he also suffered from cirrhosis, hearing problem and has difficulties in walking.

15.  It was admitted that the applicant attended the Caritas Medical Centre in April 2009 and was found to have an old cerebrovascular accident, hypertension and cirrhosis.  Physical examination of the applicant showed no flapping tremor with no cognitive defect.

16.  The applicant’s son gave evidence that he had indeed moved out from his home in February 2009 and was working in a 7‑11 shop from February to June 2009.  The applicant’s son was not able to give the exact address of the shop.  He merely said that it was near Apliu Street.

Reasons for Verdict

17.  After assessing and considering the evidence before her, and noting that the only issue was whether the applicant was the one responsible for the burglary and the wounding, the judge rejected the applicant’s evidence.  She found both charges proved against the applicant beyond a reasonable doubt and duly convicted the applicant of both offences.

Reasons for Sentence

18.  The judge took into account that the burglary involved domestic premises which generally warrants a 3‑year starting point.  The judge then referred to HKSAR v Tang Wing Cheung CACC 146/2002 (unreported) and adopted a starting point of 3½ years as the applicant was an “habitual burglar”.

19.  On the wounding charge, the judge took into account the extent of injuries sustained by the victim and imposed a sentence of 27 months.

20.  After considering the totality principle, the judge ordered 12 months of the 27 months to be served consecutively to the 3½ years imposed on the burglary charge.

21.  The judge also ordered the 4½ years’ imprisonment imposed by her to run wholly concurrently with the remainder of a 30‑month sentence the applicant was then serving.

Grounds of Appeal on Conviction

22.  The applicant, who was not legally represented before us, previously advanced several home‑made written grounds of appeal.  Before us the applicant submitted yet another written document containing his grounds of appeal.  Most of the grounds embodied in all these documents were repetitive.  The last document was a summary of all the grounds the applicant wished to rely on.  Basically the applicant’s complaints were that he did not have a fair trial, and that the judge did not give him the benefit of the doubt.

23.  The main thrust of his contention centred on the issue of identification.

24.  The applicant pointed to the victim’s description of the intruder (someone aged 40) and submitted that he could not have been the intruder as he was an old man aged 68 at the time.  He submitted that with the difference in age, height and physique, and in particular the applicant’s own medical condition supported by the medical evidence before the trial judge, it was inconceivable that he could have been the intruder who managed to struggle with the victim for 5 to 6 minutes and wounded the victim.  The applicant said he doubted if the judge had properly analysed the medical report adduced in court.

25.  The applicant pointed to the victim’s evidence that there was light in the bedroom at the time and submitted that the victim should have been in a position to observe the intruder sufficiently to recognise him, yet the victim was not able to pick the applicant out from the formal identification parade.

26.  The applicant complained that the judge had incorrectly found that the flat was in the dark at the time when the victim had said he had turned on the light in the bedroom.

27.  The applicant relied on the fact that his fingerprints and DNA were not found inside the premises to support his contention on the issue of identification.  The applicant also submitted that there was no evidence to connect the top part of the broken bottle found outside the premises with the remaining part of the bottle found inside the premises.

28.  The applicant also complained that the judge was wrongly influenced by his previous convictions and was biased against him.

29.  Apart from raising the above‑mentioned grounds, the applicant also reiterated the version he gave in court to stress that he was not the intruder involved in this case.

Consideration of the Grounds of Appeal

30.  The judge has indeed given very detailed analysis and explanations as to her reasons for rejecting the applicant’s evidence and account of the events (paras 20-31).  We do not find it necessary to re-produce the same here.  Suffice it to say we do not find any fault in her reasoning.  There is no basis for this court to interfere with her findings of facts.

31.  Having rejected the applicant’s evidence, the judge reminded herself of the burden on the prosecution to prove the charges against the applicant beyond a reasonable doubt.  She then proceeded to analyse the prosecution evidence and gave full reasons why she accepted the prosecution evidence and drew the irresistible inference the applicant was the burglar who had wounded the victim (papas 32‑45).  The judge had dealt with all the points raised by the applicant except his allegation that the judge had wrongly found the flat to be in darkness, and his complaint about the alleged bias on the part of the judge.

32.  The judge was aware of the discrepancies in the victim’s description of the age of the intruder and the age of the applicant.  Contrary to the applicant’s submission, the judge did not find that the flat was dark at the time.  The judge related the victim’s evidence in this respect as follows:

“4 ... [the victim] initially said that the lights inside the bedroom were off, but under cross-examination, he said that he might have switched them on at the time.

5.   In any event, [the victim] said there was light coming from the corridor outside as he had not closed the door, he was able to see the whole living room and the corridor inside his premises.  [The victim] further told the court that the distance between the [intruder] and him at the time was about 1.7m”

33.  The judge resolved the discrepancy this way:

“36. I do not find it surprising that [the victim] might have gathered an incorrect impression of his assailant, e.g. that his assailant was in his 40’s, given the situation [the victim] was in at the time, and the suddenness of the happenings.”

34.  It can be seen that the judge did not make a finding that the flat was in darkness, nor did she use any evidence of darkness to resolve the differences.

35.  The judge was aware of the difference in height and age between the victim and the intruder.  She referred to the victim’s evidence that he was able to use his weight to press the intruder (who was smaller in build) against the wall after disarming the intruder.  It was only after the intruder managed to wound him with the glass bottle that the intruder was able to escape.  The judge found that:

“… the [victim’s] testimony did not make it impossible for the smaller-build [applicant] to be the burglar-assailant.”

The judge once again referred to the fact that the applicant’s assertion of having difficulties in walking was not supported by the medical evidence (para 42).

36.  The judge was fully aware of the fact that the applicant’s fingerprints and DNA were not found inside the victim’s flat.  The judge had fully dealt with this aspect of the evidence in her reasons (para 40).

37.  The applicant’s complaint about the status of the top part of the glass bottle found outside the victim’s flat vis-à-vis the remaining part of the bottle found inside the flat was also without merit.  There was never any dispute during the trial that the top part of the bottle seized by the police matched the remaining bottom part of the bottle.  The defence case was that the applicant left his DNA on the neck of the bottle for reasons other than him being the burglar intruding into the victim’s flat at the material time.

38.  The judge only learned about the applicant’s previous convictions after she had found him guilty of the charges.  There is absolutely no basis to support the applicant’s assertion that the judge was influenced by his previous convictions, or that the judge was biased against him.

39.  The judge had considered fully each and every point raised by the applicant’s counsel at the time and the reasons for her findings could not be faulted.  There is no basis to say that the applicant did not have a fair trial. The conviction is neither unsafe nor unsatisfactory.

Grounds of Appeal against Sentence

40.  The applicant referred to a fellow inmate having received a sentence of 6 months for the offence of “wounding 19” before a magistrate and complained that there was too great a difference between that sentence of 6 months and his sentence of 27 months for the same offence of wounding.  He also said it was unfair to him to have 12 months of that 27 month‑sentence to run consecutively to the sentence imposed for the burglary.

41.  Furthermore, the applicant complained that the judge had ordered the 4½ years sentence imposed on him to run consecutively to the remaining part of a 30‑month sentence he was then serving, thus making a total sentence of 6½ years.  He asked this court to allow his appeal against sentence so that he could reunite with his family earlier.

Consideration of the Grounds of Appeal

42.  First of all, the judge did not order the 4½ years’ imprisonment imposed by her to run consecutively to the remainder of the existing 30‑month sentence imposed previously on the applicant.  There is no question of the applicant facing 6½ years imprisonment as a result of Judge Pang’s order.

43.  There was no complaint by the applicant regarding the appropriateness of the 3½ years imposed for the burglary offence.  The applicant was clearly an “habitual burglar” as described by the judge.  A starting point of 3½ year was neither wrong in principle nor manifestly excessive.  The applicant was convicted after trial so there is no basis for any reduction.

44.  Regarding the wounding charge, the applicant complained that he received a much higher sentence of 27 months when compared with the sentence on a fellow inmate.  There are no tariffs or sentencing guidelines for the offence of wounding.  The facts of wounding cases could vary to such a great extent that whether a particular sentence was appropriate would depend on all the circumstances of that particular case, including the extent of the injuries suffered by the victim.

45.  There was no evidence before us as to the circumstances regarding that particular case of wounding mentioned by the applicant, nor the extent of the injuries suffered by the victim therein.  In any event, where different sentences are imposed on different defendants for the same offence by different judges on different occasions, the relevant consideration is whether the sentence passed on the defendant is proper: see HKSAR v Chow Tak-fuk [2005] HKCU 198, per Stock JA (as he then was).

46.  Bearing in mind the circumstances of the attack in this case, and the extent of injuries suffered by the victim, a sentence of 27 months was neither wrong in principle nor manifestly excessive.

47.  The judge had properly considered the totality principle and ordered 12 months of the 27 months to run consecutively to the 3½ years imposed on the burglary charge.

48.  The total sentence of 4½ years imposed was proper in this case.  We saw no grounds to interfere with the sentence imposed.

Conclusion

49.  For the reasons stated, we refused to grant leave for the applicant to appeal against conviction.  We also refused to grant leave for the applicant to appeal against sentence out of time.

Loss of time

50.  The applicant applied for leave to appeal against conviction before a single judge.  Yuen JA, when refusing to grant leave to the applicant to appeal against conviction, warned the applicant of the possibility of a direction for “loss of time” being made against him should he continue to pursue to apply for leave to appeal against conviction before the Court of Appeal.  The applicant indicated he understood the warning.

51.  Not only did the applicant continue with his unmeritorious application for leave to appeal against conviction, he also advanced a fresh and equally unmeritorious application for leave to appeal against the sentence out of time.  Such groundless appeals not only waste court time, they also delay the hearing of other meritorious appeals.  For these reasons we directed, pursuant to section 83W(1) of the Criminal Procedure Ordinance, Cap 221, that 3 months of the time during which the applicant was in custody pending the determination of his appeal shall not be reckoned as part of the term of the sentence to which the applicant is for the time being subject.