HKSAR v. CHANG CHIO FUN

CACC 413/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 413 OF 2002

(ON APPEAL FROM DCCC 389 OF 2002)

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J U D G M E N T

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Ma JA (giving the judgment of the Court):

1. On 10 July 2002, the Applicant was convicted after trial by HH Judge Barnes of attempted burglary. The offence was committed on 30 July 1995 when the Applicant attempted to enter without lawful permission Severn Villa, 3 Severn Road, the Peak ("the Premises"). He was sentenced to two years' imprisonment on 31 July 2002. The Applicant applied for leave to appeal against both conviction and sentence. On 15 January 2003 Yeung JA refused leave. The Applicant renews his application before this Court.

2. In arriving at her decision to convict the Applicant of the offence, the learned Judge heard the testimony of two police officers who saw the Applicant climbing up the drainpipe between the ground floor and 1st floor of the Premises. He was wearing gloves at the time and when apprehended, had a screwdriver and a torch in a waist bag carried by him. The police officers had been on patrol in a police car at about 4 a.m. on 30 July 1995 driving along Severn Road when they saw a man acting somewhat suspiciously. There was no evidence that this person was the Applicant. This led the police officers to stop and call for assistance. They then went to the Premises. The learned Judge found as a fact that the Applicant was seen climbing the drainpipe of the Premises as I have indicated. She believed in particular the testimony of one of the police officers who had a clear recollection of the incident. The Applicant was stopped by the police officers.

3. These were the basic facts. The question that the Judge asked herself was what the Applicant was doing at the time he was stopped. Was he climbing up the drainpipe of the Premises or, according to him, was he just walking along a road on the Peak, presumably Severn Road?

4. The Applicant's case at trial (he gave evidence) had been as follows:-

(1) He was a tourist from Macau who was in Hong Kong for sightseeing and shopping purposes.

(2) On the day in question, he was admittedly at the Peak. He frankly admits this was for two purposes: sightseeing and burglary. He admits he was carrying gloves, a screwdriver and a torch.

(3) After his sightseeing activities, he then decided to look for some place to burgle. Unable to do so, he decided to go back down from the Peak. The Peak Tram was closed so he went by road and got lost. Eventually, on a road the name of which he did not know, he was stopped by two police officers. He was then beaten up and arrested.

5. The Judge believed the police officers and disbelieved the Applicant. She found he was not telling the truth when he said that upon not finding any suitable place to burgle, he abandoned the idea and was making his way downhill when he was arrested. The Judge also expressly rejected the allegation that the Applicant was beaten up.

6. The learned Judge made her findings after taking into account the following facts and matters:-

(1) That the Applicant had a clear record at the time the offence was committed.

(2) The incident took place in 1995 so that the witnesses were recalling events that took place nearly seven years prior to the trial. We would just record the fact here, though it had no bearing on the Judge's decision, that after his arrest, the Applicant was given bail. He failed to answer his bail and returned to Macau, where he was imprisoned from 4 November 1995 to 2 May 2001. He surrendered himself to the Hong Kong Immigration authorities on 8 March 2002.

(3) The evidence from the two policemen was in parts contradictory. The learned Judge preferred the testimony of one to the other in all major respects. We should add here that the inconsistencies in the testimony were not of great significance at all.

7. What is clear is that the Judge believed the evidence of the prosecution witnesses and disbelieved the Applicant.

8. Before us this morning, the Applicant has essentially repeated his version of the events, adding that the police officers who gave evidence were not telling the truth. Effectively, he asks this Court now to believe him. However, the learned Judge disbelieved his version of events and that is the end of the matter.

9. For the above reasons, we see nothing in the application for leave to appeal against conviction. There was adequate evidence before the Judge to convict. We therefore dismiss the application.

10. As to sentence, the Judge was aware of the starting point of three years for domestic burglary. Although an actual burglary was not committed, the Applicant was at a very advanced stage when he was caught. A starting point of three years was entirely appropriate. The Judge sentenced the Applicant to two years' imprisonment taking into account "the circumstances of the offence and the defendant's personal background". By personal background was probably meant the fact that the Applicant had a clear record and was suffering from organic psychotic disorder. By circumstances of the offence, the learned Judge probably had in mind the fact that an actual burglary did not occur and that no property was taken.

11. We see nowhere that the Judge went wrong. If anything, she was extremely lenient to the Applicant. We therefore dismiss this application as well.