HKSAR v. TIN FEI LUNG

CACC 337/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 337 OF 2003

(ON APPEAL FROM DCCC NO. 497 OF 2003)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgment of the Court):

Introduction

1. The applicant faced two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The first charge was for a burglary that took place on 13 March 2003 in respect of premises in Sheung Shui, New Territories where cash $2,500, one camera, one gold wrist chain, one ring and one receipt were stolen. The second charge took place on 17 March 2003 in premises in Tai Po, New Territories, where one digital camera, one digital camera memory card, one gold necklace with two jade pendants, two watches and one silver wrist chain were stolen.

2. The applicant also faced another charge (Charge 3), for remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115.

3. He was tried before Deputy Judge Chainrai in the District Court. He pleaded guilty to the third charge but not guilty to the first two charges. On 22 July 2003, he was convicted of the two charges of burglaries. The judge imposed the following sentences on him: 3 years' imprisonment on each of Charge 1 and Charge 2, and 12 months' imprisonment in respect of Charge 3. She ordered that 11/2 years of the sentence on Charge 2 to be served consecutively and the 12 months on Charge 3 also to be served consecutively, with the remaining sentences to be served concurrently. The total sentence came to 51/2 years.

4. On 7 August 2003, the applicant took out an application to seek leave to appeal against conviction. At that time, he did not seek leave to appeal against sentence. His application for leave to appeal against sentence was taken out only on 10 February 2004, long out of time. These two applications are now before this Court.

5. At the conclusion of our hearing on 16 July 2004, we dismissed the applications. Our reasons appear below.

The prosecution's case

6. The prosecution's case was that the two burglaries described in the charges took place respectively on 13 and 17 March 2003 and the money in Charge 1 as well as the various items described in the charges were stolen from the related premises. At the trial there was no challenge to these facts.

7. Towards 6 pm on 20 March 2003, police officers were on patrol duty outside an electronic games centre in Sheung Shui. They found the applicant acting suspiciously and conducted inquiries on him at a staircase adjacent to the games centre. All of a sudden, the applicant ran away and in the course of his flight discarded a plastic bag that was later found to contain, amongst other unrelated items, the camera in Charge 1. Later, when the applicant was caught, he was found to be wearing the watch in Charge 2 and a lady's style ring in Charge 1. The following items were also found inside a brown wallet in his trousers' pocket: the gold wrist chain in Charge 1 and the gold necklace and the two jade pendants in Charge 2. There were also two receipts inside the wallet, one was the receipt stolen in the first burglary whilst the other was identified as one stolen in the second burglary.

8. Thereupon, PC 34828 (PW1) arrested the applicant. When the applicant was questioned at the scene of arrest in respect of the items found on him, he replied that he had bought them from a friend for RMB 1,000 that morning; that friend was a co-villager, whose name he did not know. Inside the wallet, cash HK$420 and RMB 615 was also found.

The defence case

9. The applicant testified before the judge. The main thrust of his evidence was to explain how he came about the articles found on him. The judge gave a detailed account in para 9 of her Verdict, as follows:

"9. The Defendant gave evidence that he had been a factory worker earning RmB1200 each month. Although he was single, he had a girlfriend whom he intended to marry. He came to Hong Kong because his friend had arranged a job for him as a construction site worker earning $300 a day. He came to Hong Kong in the morning of 17/3/2003, hiding himself in a vehicle to avoid detection. After his arrival, he stayed in Sheung Shui. On the morning of 20/3/2003, his friend brought him to the vicinity of the railway station and told him there were some things he wanted him to bring back to China - the Defendant could purchase these if he wanted. His friend was willing to sell these to him at a lower price. The Defendant had come to Hong Kong with HK$2,500 and RmB1,700. He said he had spent money in Hong Kong but he could not remember how much. He still had almost HK$1,000 left at the time of his arrest, and he said he had not used the Rmb. At the time of his arrest, PW1 found on him HK$420 and RmB615, Exhibit P13. He bought all the items that were found on him from his friend, he said for RmB1,000. The two receipts Exhibits P14 and P15 were also given to him by the same friend. He denied knowledge that these were stolen items, and said he did not know what their value was. He asked his friend about the source of the property and was told that they were all old items he'd worn before and that he now had new ones. After he had paid for the items, he had almost HK$1,000 and about RmB700 left. He denied having burgled the premises in charges 1 and 2. Under cross-examination, he said his friend who arranged the job for him, Chau Foo, lived in Fanling. He had met him inside the amusement game centre in Sheung Shui that he had been taken out of by police officers. After he had arrived in Hong Kong, he took a taxi to Tin Shui Wai to look for Chau Foo - that is where Chau used to do decoration work. The Defendant was not told there was no work for him until the morning of 20/3/2003. He agreed that he had not told the police the name of the friend from whom he had purchased the stolen items - he told the police he did not know his name. He said he was given the two receipts so that he could show it to his girlfriend that the jewellery was purchased by him in Hong Kong and it would look good. He agreed with Prosecution Counsel that he had a better chance of selling the items in China if he had a receipt and he also agreed that he planned to sell the items in Mainland China knowing it to be stolen goods."

10. The judge did not believe the applicant's account of having purchased the stolen items from his friend. She found that there was recent possession of the stolen items and that the explanation offered by the applicant was wholly incredible. She concluded in para 12 of her Verdict:

"12. ... Although the Defendant has offered an explanation, it is a wholly incredible explanation. ... The doctrine [of recent possession] is only a particular aspect of the general proposition that when suspicious circumstances appear to demand an explanation and no explanation or an entirely incredible explanation is given, the lack of explanation may warrant an inference of guilty knowledge on the part of the Defendant. In the circumstances of this matter, there is no other inference I am able to draw."

Grounds of appeal against conviction

11. On behalf of the applicant, Mr Wong Po Wing raises four grounds of appeal to support his contention that the conviction was unsafe or unsatisfactory. These four grounds all related to facts.

12. The first ground contends that the judge erred in convicting the applicant because the evidence did not warrant a conviction. The main argument was that apart from recent possession, the judge had not identified any other piece of evidence from which an inference of guilt of burglary can be made.

13. Before dealing with this ground of appeal, it is convenient to deal with the other three grounds first.

14. The second ground alleges that the judge erred in relying on the evidence of one single question and answer at the very end of the cross-examination of the applicant to hold that the applicant had admitted that he planned to sell the goods on the Mainland knowing that they were stolen items, when, in the context of the whole of the applicant's evidence, such answer was given in circumstances indicating a misapprehension of the question asked and was contrary to the whole tenor of the evidence of the applicant given at the trial.

15. According to the transcript of evidence, the last question and answer in the applicant's cross-examination were as follows:

"Q. And that is what you planned to do, I suggest. You were planning to sell these goods. Knowing that they were stolen goods, you were planning to sell them in the mainland with the help of these receipts.

A. I agree." (Appeal bundle p 45R-T).

16. There was no re-examination by the legal representative of the applicant at the trial. This is not surprising, because a number of questions were asked about the use of the receipts that had been stolen in the two burglaries. The defendant had answered that he was thinking of buying the articles from his friend and intended to give some of the jewellery items to his girlfriend and to keep the rest for his own use. He could show the receipts to his girlfriend to prove that the items were bought in Hong Kong and "that would look good". However, close to the end of cross-examination, the applicant agreed that with the receipts he could have a better chance of selling the goods. That agreement came immediately before the aforesaid cited closing question and answer in cross-examination. Given this progression, and the increasing force of the questions, and the failure of the applicant's counsel to re-examine, it may be that the answer was intended as a confession to knowledge. However, even if we were to assume that the applicant was answering one part of a number of suggestions rolled into one, that would not in our judgment undermine the validity of the conviction, for the facts to which he himself admitted were such as to render ignorance of the stolen quality of the goods a purely fanciful suggestion.

17. Moreover, while the judge mentioned the applicant's answer in para 9 of her Verdict (cited above), it can be seen in para 12 of the Verdict (also cited above) that she did not rely on that answer as an admission of knowledge of the goods being stolen, because otherwise she did not need to rely on the lack of any credible explanation about the recent possession to draw the inference of guilty knowledge.

18. The third ground of appeal challenges the judge's finding that the applicant had agreed in evidence that he had not told the police the name of the friend from whom he bought the stolen items. This ground is a non-starter because when PW1 gave evidence, he told the court that when he asked the applicant about the items found on him at the scene, the applicant said that he had bought them from his friend in the morning, and he only knew that the friend was a co-villager, but did not know his name. This matter was also canvassed in the cross-examination of the applicant. The applicant agreed that he did not tell the police officer the name of the person from whom he had received the goods. While it is true that during the interview with the police later back at the police station, the applicant did say that the friend was named Chau Foo, and that he did mention the same name in his examination-in-chief, it is incorrect to say that the judge had made a wrong finding as contended in this ground of appeal.

19. It is contended in the fourth ground of appeal that a witness statement of Madam Sung dated 17 March 2003 given to the police described the burglar in the second charge as someone of fat build, which was materially different from the physical appearance of the applicant in March 2003. But Madam Sung was not called as a witness at the trial. It is asserted that this has caused unfairness to the applicant and made the conviction unsafe and unsatisfactory.

20. The witness statement was amongst the material given by the prosecution to the defence prior to the trial. There was no application by any party to have the witness called. We agree with Mr David Leung, for the respondent, that this ground is an attempt to adduce fresh evidence. No basis for the admission of this statement as fresh evidence before this Court has been shown. No reason, if the contents of the statement were of such importance to the applicant's case, has been given as to why the defence did not seek to call the maker of the statement to give evidence before the judge. We are not to speculate. We do not see any justifiable basis for us to interfere.

21. Now we turn to the first ground of appeal, which is the chief thrust of the challenge to the conviction.

22. The main basis for the conviction is the adverse inference drawn by the judge from the evidence of recent possession of the stolen items. In Hong Kong Archbold 2004, para 22-96, there is a good summary of the law and practice in this respect. It reads:

"Every case depends on its own facts. There is no magic in any given length of time. However, it is submitted that in many cases where the only evidence is that of recent possession, it will be impossible to exclude the possibility that the defendant was merely a receiver of the stolen property: in such cases, a count of burglary ought not to be left to the jury. However, that applies where recent possession is literally the only evidence. The reality is, that in the great majority of cases, there are other pieces of evidence which tend to point the case one way or the other. It would be impossible to compile a definitive list of circumstances which might be relevant. They will include, however, the time and place of the theft, the type of property stolen, the likelihood of it being sold on quickly, the circumstances of the defendant, whether he has any connection with the victim or with the place where the theft occurred, anything said by the defendant and how that fits in or does not fit in with the other available evidence."

23. From the evidence of this case, the following matters are noteworthy:

(1) When the stolen items were found in the possession of the applicant, the burglary under Charge 1 had taken place only 7 days before, and that under Charge 2, 3 days before. While the 7-day period might be said to be slightly long, the same comment cannot apply to the 3 days.

(2) In respect of each of the burglaries, more than one single item of the stolen goods were found on the applicant. The evidence of his being the burglar is stronger in this case than if he was found only to have one item from one burglary.

(3) The stolen items were of different nature. They were also kept by the applicant together with the stolen receipts, one from each of the burglaries. Such evidence points more strongly towards the applicant being the burglar than his being merely the handler of stolen goods.

(4) One of the receipts showed a date that related to a recent transaction, a new purchase. This contradicted his story that the items sold to him by the friend were allegedly old items that the friend had worn.

(5) These motley items were unlikely to be sold-on easily, especially by a person in the applicant's position as someone unlawfully remaining in Hong Kong.

(6) The applicant's running away from the police could reasonably be explained by his fearing to be exposed for his unlawfully remaining in Hong Kong. However, his discarding of the plastic bag containing the stolen camera had the effect of showing that, to say the least, he probably knew that the camera did not come from a proper or honest source.

(7) The applicant's not telling the police the name of the person from whom he bought the stolen items at the scene of his arrest makes his explanation that he bought them from a friend incredible.

24. Since the judge had rejected the applicant's story of his having bought the stolen items from a friend as wholly incredible, the evidence of recent possession, and the other evidence as analysed above, well justify the only reasonable inference to be drawn that he was the burglar. Moreover, it was unlikely for a burglar to sell on stolen goods with receipts. The two receipts showed respectively HK$1,370 and $5,841. It was incredible that the burglar would have sold to the applicant all the stolen items, including the two jewellery items evidenced by these receipts, for as little as the alleged RMB 1,000. In view of the judge's rejection of the applicant's explanation as to how he came by the stolen goods, the evidence as a whole pointed one way towards his being the burglar in respect of both charges.

25. The first ground of appeal is also rejected.

26. We are satisfied that the convictions on Charges 1 and 2 are neither unsafe nor unsatisfactory.

Sentence

27. Mr Wong relies on AG v Lo Ching-fai [1996] 1 HKC 747 to submit that the sentence of 4 1/2 years passed by the judge was excessive. In Lo Ching-fai, a sentence of 3 1/2 years was held to be appropriate by this Court (differently constituted) for two burglaries committed by the same defendant.

28. In Lo Ching-fai, the Court held that 3 years' imprisonment was in general an appropriate starting point for a single offence of burglary of domestic premises committed by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation. The Court was of the view that the appropriate overall starting point for the two charges of burglaries was 3 1/2 years' imprisonment.

29. However, it is to be noted that the Court was not laying down a sentencing guideline. That decision was limited to the facts of that case. The trial judge imposed on the respondent (the defendant in that case) concurrent sentences of 18 months' imprisonment on each of the two charges of burglaries to which the respondent pleaded guilty, and the judge suspended both sentences for 3 years. The Court stated its opinion that the appropriate overall starting point was 3 1/2 years' imprisonment upon the application by the Attorney General for review. The Court took into account that the respondent had a previous good character and the fact that he committed the offences after losing a good job through redundancy and was able to secure only a far less rewarding job.

30. In the present case, the applicant had three previous convictions in Hong Kong: theft, possession of imitation firearms and unlawfully remaining in Hong Kong after having landed unlawfully. Those offences resulted in a total sentence of 37 months in jail. He was released from jail on 30 January 2003 and he was arrested for the offences in the present case on 20 March 2003, less than two months afterwards.

31. In passing sentence, the judge said that the appropriate sentence on a plea of guilty in respect of Charge 3 was one of 15 months' imprisonment. She expressly mentioned that she bore in mind the totality principle of sentencing when passing a sentence of 3 years' imprisonment on each of the burglary charges and 1 year's imprisonment on the unlawfully remaining charge. It will be noted, therefore, that instead of 15 months for Charge 3, the judge only gave the applicant 1 year's imprisonment.

32. Bearing in mind all the circumstances, while we consider that the overall sentence of 5 1/2 years imposed on the applicant may be slightly on the high side, we do not consider that the sentence is against principle or manifestly excessive.

33. In the circumstances, we do not need to consider whether there is any reasonable explanation for the delay in bringing the application for leave to appeal against sentence.

Conclusion

34. For the reasons given above, we dismissed both the application for leave to appeal against conviction and the application out of time for leave to appeal against sentence.