R. v. LEE IENG LON

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1331 OF 1996

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J U D G M E N T

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1. The appellant was convicted of burglary. The charge as amended alleged that on 18th June 1996 the appellant entered as a trespasser the office of the Chief Chef at 5th Floor of Grand Hyatt Hotel with the intention of stealing therein.

2. The principal witness for the prosecution was the Food and Beverage Manager of the Grand Hyatt, Leung See-pak. He told the magistrate that at 10:20 p.m. on 18th June 1996 when he walked past the office of the Chief Chef, he noticed the door was ajar and there was light inside. He pushed open the door and entered the room. He saw a stranger who was subsequently identified as the appellant inside the room. He saw him standing next to the bed near the drawers, bending over his body. He saw a drawer was almost closed leaving a 3 inch space. The appellant was asked who he was looking for and he replied he was looking for a David Leung in the Food and Beverage Department but there was no such person in that department. The appellant tried to leave but he was detained by the witness. The witness also told the magistrate in cross-examination that when he walked in, he saw the appellant pushing the drawer. Nothing was found to have been stolen when the Chief Chef subsequently returned and checked his office. The police officer who was called to the scene told the magistrate that the left and right bottom drawers of the desk in the room were open when he arrived there and that the appellant told the officer that he was there looking for a David Leung.

3. The appellant gave evidence that he went to the Chinese restaurant in the hotel to meet a friend called Wong who did not work in the hotel. He went to the 5th Floor thinking the Chinese restaurant was there. He went into the office when he saw the door open. He went inside to make a telephone call. At that time Leung See-pak came in. He admitted he told the witness he was looking for a David Leung.

4. The magistrate in his statement of finding said :

"I had no doubt in accepting the evidence of PW1 that he had seen the appellant closing one of the drawers to the desk. I was also satisfied that the appellant had not only told PW1 that he was looking for David Leung but that he had continued to mention that when questioned by PW4."

He found the story given by the appellant unbelievable. He also considered the appellant's clear record in Hong Kong as he was required to do in respect of a person with good character before he convicted the appellant as charged.

5. The complaint made by the appellant is that the evidence of the principal witness in cross-examination must be viewed with suspect since he did not mention he saw the appellant closing the drawer in his evidence in chief and the magistrate should have been most careful about accepting his evidence.

6. What was said by the witness in cross-examination was not inconsistent with his evidence in chief. The witness has explained he did not mention seeing the appellant closing the drawer because he was not asked in that respect in chief. It is implicit from the magistrate's findings that he accepted this explanation. On the evidence he accepted, he was entitled to make the findings of fact and convict the appellant as he did. The appellant indicated that Mr Wong who was supposed to see him in the restaurant could have been called to court to show his case was true and Mr Poll asked if he should have Mr Wong before the courts to give evidence. I see no reason why this case should be re-opened. The conviction cannot be regarded as unsafe and unsatisfactory. The appeal against conviction is dismissed.

7. The appellant was sentenced to 15 months imprisonment on the burglary charge.

8. In general the appropriate starting point for a single offence of burglary of domestic premises committed by a first offender of full age without aggravating factors or exceptional mitigating circumstances is one of three years. This has been established in AG v. Lui Kam Chi [1993] 1 HKC 215. In AG v. Lo Ching Fai App. for Review 12/95, the Court of Appeal also considered this sentence appropriate.

9. In the light of these authorities, the sentence of 15 months for burglary of premises inside a hotel for an offender with a clear record cannot be regarded as wrong in principle or manifestly excessive. It is true that the appellant was sentenced at the same time to 3 months imprisonment concurrent for an immigration offence. Taking that into account, the total of 15 months imprisonment is also not wrong or manifestly excessive. The appeal against sentence is dismissed.