HKSAR v. Md Emran Hossain

CACC 330/2014

CRIMINAL APPEAL NO 330 OF 2014

(ON APPEAL FROM DCCC 492/2014)

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REASONS FOR JUDGMENT
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Hon Pang JA (giving the reasons for judgment of the court):

1.On 19 September 2014, following a trial before HH Judge Woodcock, the applicant was convicted of one charge of ‘burglary’[1]. On the same day, he was sentenced to 3 years’ imprisonment. On 2 June 2015, his applications for leave to appeal against conviction and sentence were refused by the Single Judge[2]. On 2 December 2015, his renewed applications for the same were dismissed by this Court.

THE RESPECTIVE CASES

2.Subject to minor variations, we adopt and reproduce below the Single Judge’s summary of the prosecution and defence cases as it appeared in his judgment.

The prosecution case

3.At about 8:30 am on 14 January 2014, the occupant of Room 34C (“PW1”), left his premises, having secured its iron-gate with a padlock, but with its windows open.

4.At about 11:15 am, the tenant of Room 34B, a Ms Hon[3], was woken up by some loud noises outside her room, which sounded as though someone was kicking and trying to prise open a metal gate.  Ms Hon was frightened and did not go to investigate.

5.The noises attracted the attention of a police officer (“PW4”) who happened to be conducting an anti-crime patrol in the building.  PW4 traced the source of the noises to Room 34C.  There, he saw the applicant, whom he described as a person of dark complexion wearing a distinctive yellow woollen hat with stripes, inside Room 34C trying to break the padlock at the iron-gate with a hammer and a screwdriver from inside the premises.  PW4 kept the applicant under observation for some 30 seconds before approaching him.  When the applicant saw the approaching officer, he shut the wooden door on the other side of the iron‑gate. PW4 knocked at the door, but there was no response.  PW4 then contacted Ms Hon in Room 34B, who assisted him in locating PW1.

6.PW1 arrived shortly thereafter but was unable to open the padlock due to its damaged state.  In the end, the police had to break the padlock to gain entry to the room.  The police found no one inside, but there were obvious signs that it had been ransacked.  The RMB600 which PW1 had kept in a wooden drawer was missing and his tools had been moved.

7.About an hour after PW4 had first seen the applicant inside Room 34C, the applicant was found inside Room 38 on the same floor.  The room, which was a vacant premises full of abandoned furniture, was not secured with locks and its windows were open.  Police officers found the applicant hidden beneath a blanket, holding some tools in his hand.  The applicant was ordered to put the tools down, which he did, and a search was then conducted on him.  In the applicant’s right, front trouser pocket was found RMB600.  The applicant told the police that he was just sleeping there. He did not admit having burgled Room 34C.  PW4, nevertheless, recognised him as the man trying to break the padlock from inside that flat.

8.Police investigation showed that there was a canopy on the outer wall of the building which could provide access from Room 34C to Room 38.  The applicant’s right index fingerprint was found – and this was agreed by the parties at the trial – on a plastic drawer inside Room 34C.  A forensic scientist gave his opinion that the scratch marks on the padlock were not made by the tools found in the applicant’s possession upon his arrest.

The defence case

9.The applicant gave evidence to the following effect.  On the day of the offence, police officers had stopped him outside the building in which Room 34C was located.  They took him, firstly, to Flat 38 where they made him touch some tools.  Thereafter, he was taken to Room 34C, by which time he was handcuffed from behind, where he was made to touch the doorknobs and the window latches and was forced to open and close a drawer.  He said that when attempts were made to get him to touch the drawer, he clenched his fists but was struck forcefully in the ankles with a metal rod.  In his pain, he unclenched his fists, and the drawer was then put in his hands behind his back.  He said he was severely assaulted inside Room 34C, with kicks delivered at his lower private parts, causing his sexual organ to bleed. He was elbowed in the neck below the ear, and he hit his head against the wall.  He said that the RMB600 was found in his wallet rather than his trouser pocket as the police claimed.  He explained that the money was a loan from a friend from Bangladesh.

REASONS FOR VERDICT

10.After pointing out that there was no doubt that a burglary had taken place, and that the only issue at trial was the credibility of witnesses, the judge went on to say that, as regards the defence case[4]:

“29. …. I find the defendant’s evidence fanciful and far-fetched.

30. I have taken into account Exhibit P22, a statement from an interpreter who was engaged by the police to translate at the station. He says he first met the defendant at 17.49 pm on 14 January. Between 1800 and 2000 hours he assisted with translation during a record of interview. He recalled the defendant making a request to seek medical attention, but he could not recall why he needed to see a doctor.

31. I am sure if he was as seriously injured as he alleges, he would have told the male interpreter why and that interpreter would have remembered it. This conversation does not prove he sustained injuries as he describes. If he had been so badly injured, the duty officer would have suspected and noticed it. Moreover, medical evidence would have supported a serious injury to his penis, yet there is none. I reject the defendant’s evidence in its entirety.

32. Despite this rejection, I still have to consider the prosecution’s evidence and whether it can prove the charge beyond reasonable doubt. Defence counsel submits PW4’s glimpse of the man trying to get out of Room 34C by breaking the padlock from inside was only fleeting. He submits the identification evidence is weak and crucial. With respect, I disagree. PW4 said he stood and watched the defendant hammering the gate for about 30 seconds before he went to approach the defendant. That is sufficient time to study facial features and take note of what the defendant was wearing. This included a distinctive yellow woollen hat with stripes.

33. The observation evidence is not a fleeting glance scenario. The witness, PW4, identifies the defendant he finds about an hour later as a male he saw in PW1’s flat. I am sure the identification is good and safe. It was not challenged in cross‑examination. The prosecution rely on PW4’s identification of the defendant, but also relies on the fingerprint evidence. The defendant’s prints are on a hammer and, more importantly, on a drawer inside the flat. That puts him in the flat.

34. He does not know PW1 and has no reason to have come into contact with PW1’s drawer. I am sure he left the print there when he ransacked PW1’s flat. It is strong evidence. I reject the allegation the police made him touch many surfaces in the flat to frame him. I am sure it was the defendant that was banging on the gate with tools to break open the padlock. Although the neighbour [Miss Hon] did not look or open the door, she heard the obvious sound of someone trying to prise open a metal gate. Her statement supports PW4’s evidence as to what brought him to this location whilst he was on patrol.

35. Forensics show the tools in the defendant’s hands did not scratch the padlock examined, but that is not to say he did not try and use PW1’s tools in the flat.  PW1’s evidence was his tools had been taken out.  I am sure they would only have been taken out by the burglar trying to find something to open the padlock.  It is neither here nor there the tools found in the defendant’s hands did not make the marks on the padlock.  It does not help the defendant’s case.”

11.In respect of the prosecution case, the judge said[5]:

“36. I accept the prosecution’s case in its entirety. The witnesses were credible and reliable. There were no material discrepancies in their evidence that led me to doubt the credibility of any one witness. I can infer from the evidence of what PW4 saw the defendant doing from inside the flat, the fingerprint on the drawer, the open windows of Room 34C and 38, the canopy linking the two rooms and the police eventually finding the defendant in Room 38 hiding under some blankets and cloth that the defendant was the burglar who stole from PW1’s home. PW1’s money was found in his pocket.

37. It is well established that an inference of guilt can only be drawn against an accused if it is the only reasonable inference to be drawn. It must be a compelling one, the only one. All the circumstances of this case proved by the prosecution point to this conclusion.

38. In R v To Luen Sum [1995] 1 HKCLR 318, Bokhary J, as he then was, said at page 323:

‘When it comes to looking at all the circumstances of a case and considering whether an inference of guilt is the only reasonable inference to draw from the primary facts on which the prosecution relies and of which the tribunal of fact is sure, it is true that the piling of layer upon layer of unconvincing material cannot result in proof of guilt beyond reasonable doubt, but that is not to say that items of fact, insufficient each in itself for the purpose of convicting, may not, when taken together, form a body of fact upon which it would be proper to infer guilt and convict accordingly.’

39. That is the case here. I am satisfied beyond reasonable doubt that the prosecution can prove the burglar who entered and stole from within Room 34C was the defendant. He tried to escape detection by climbing back out of the window, making his way to Room 38 and climbing in through an open window. There he tried to hide in the corner of a room inside Room 38. Unluckily for him, he was found by the police with tools and PW1’s money in his pocket. He was recognised by PW4 as the man he had seen earlier inside Room 34C trying to get out. His fingerprint was found inside.

40. The evidence is overwhelming.  Accordingly, I convict the defendant as charged.”

REASONS FOR SENTENCE

12.Dealing first with the applicant’s background, the judge stated[6]:

“7. You, the defendant is 36 years old. You have been in Hong Kong since 2006, claiming asylum. You have come from Bangladesh, where you have left a wife and child. You are not a man of clear record in Hong Kong. You have two previous convictions, both in 2012. The first was a theft offence, where the facts are you climbed up a ladder onto a church roof to steal copper wires. The second conviction was some six months later, where you were charged with going equipped for stealing and sentenced to 8 months’ imprisonment. Today is your third conviction.”

13.Going then to the sentence, she said[7]:

“8. There is a normal usual tariff for a burglary of a domestic premises, and that is a 3‑year starting point in the absence of any aggravating or mitigating factors.

9. I have considered the prosecution’s submission that you, the defendant took tools with you to burgle and that should constitute an aggravating factor. However, this flat, 34C, is very small, and despite carrying tools, I am sure the defendant would have made sure it was empty before climbing in the open window. There was no danger of you confronting anyone in the course of your burglary. So on these facts I do not find there to be any aggravating factors.

10. From what I have heard in mitigation, nor are there any mitigating factors.

11. Defendant, please stand up. I will, after considering those factors, take a starting point of 3 years’ imprisonment. This is a conviction after trial. I see no reason for any discount to that starting point.

12. Accordingly, you are sentenced to 3 years’ imprisonment for this burglary.”

THE LEAVE APPLICATION

14.In his leave application against conviction, the applicant repeated what he said at the trial, namely he was an innocent passer-by whom the police had picked to frame with assaults of considerable violence.  As far as any evidential basis is concerned, although he continued to fail to make available any records documenting the alleged injury to his private parts, the applicant did, for the first time, put before the Single Judge[8]:

“…. certain medical reports, including one from the Senior Medical Officer of a hospital dated 18 January 2014 (4 days after his arrest) recording, so far as I can make it out, a superficial wound to his left calf; and a later report from a radiologist at Lai Chi Kok Reception Centre dated 28 April 2014 (some 3½ months after his arrest) recording that the applicant had a fracture to the lateral malleolus of his right ankle.”

15.Of this new evidence, which the Single Judge considered on a de bene esse basis, particularly as to how it might impact upon the trial judge’s findings, the Single Judge concluded[9]:

“14. Many of the factual points put forward by the applicant were advanced at trial and considered by the trial judge. I can see no error of law or in the judge’s fact-finding process. The only matter which has caused me any concern is the judge’s finding concerning the applicant’s credibility in the light of the information contained in the reports produced to me this morning.

15. The applicant was represented by solicitors and counsel at trial yet the medical reports were not produced. However, had they been produced, I am doubtful they would have had any significant impact on what is on the face of it an overwhelming case. The ankle fracture and any discomfort associated therewith is not recorded in any report until 3½ months after the applicant’s arrest, there is no medical support for any injury to the applicant’s private parts and, as Mr Daryanani points out, if the applicant did have calf and ankle injuries at the time, it would hardly have been surprising given that he must have made at least two extremely perilous journeys across the front of the outside of the building in order to get into Room 34C and into Flat 38. Furthermore, there must have been considerable urgency, if not panic, in his climbing from Room 34C to Flat 38 after he had become aware that he had been discovered and the police were trying to get into Room 34C.

16. In all the circumstances, I do not consider that this material, assuming it were to be permitted by a Court to be introduced as fresh evidence upon the appeal when it was not adduced at trial, would have made the slightest difference to the verdict in this case.  Accordingly, leave to appeal against conviction is refused.”

16.Of the applicant’s application in respect of his sentence, the

Single Judge also concluded that it was of no merit[10]:

“19. Given the circumstances of the offence involving domestic premises, and of the offender, in particular his previous convictions, there is nothing obviously wrong with the sentence passed upon the applicant. Leave to appeal against sentence must also be refused.”

THE APPEAL AGAINST CONVICTION

Grounds of Appeal

17.Subsequent to his conviction on 19 September 2014, the applicant had written multiple notes and letters to this Court[11] from which his grounds of appeal could be extracted and summarised as follows[12]:

(1) He had not committed any crime.

(2) It was impossible to climb from Room 34C to Room 38.

(3) He was framed-up by the police in circumstances that he had previously expounded.

(4) He had medical reports to prove the injury to his leg and right ankle.  He was at a loss as to what other medical reports to produce.

(5) The Single Judge’s criticism that the report on his right ankle fracture was late by 3½ months was unjustified.  As he was living under the prison regime, it was a matter out of his control.

(6) On the day of his arrest (14 January 2014), and also the day after (15 January 2014), he had told the Bengali interpreter present at his written interview (a Mr Mohammed Idris) that he wanted medical attention.  This interpreter should be called to give evidence in the appeal hearing.   

(7) The Bengali interpreter present at his video interview on 16 January 2014 (a Mr Gopal Chaud Sharma) should also be called by the Court of Appeal.  The video interview itself should be looked at.

18.These grounds were repeated orally before us, with the extra emphasis that, upon producing the X-ray report on his ankle, he, the applicant, had succeeded in substantiating his complaint against the police.  When it was pointed out to him that there was an extant absence of any report on his supposedly injured private parts, the applicant replied: “I have not shown them to the doctors.  I am waiting to see some private doctors when the Correctional Services Department manages to arrange it.”  

Discussion

19.The applicant’s grounds of appeal concern nothing that the judge and/or Single Judge had not covered.  The only exception is the applicant’s video interview the transcripts of which we have looked at and seen that, from entry 1057 onwards, the applicant repeatedly claimed that (a) he was assaulted by the police and (b) the interpreter at the written interview (Mohammed Idris) could confirm his earlier request for medical attention.  That being the only point, the video interview and the interpreter who was present (Gopal Chaud Sharma) are of no help to the applicant, the same point having been dealt with by the judge at paragraphs 30 and 31 of her Reasons for Verdict (see under paragraph 15 above).

THE APPEAL AGAINST SENTENCE

Ground of Appeal

20.Rather tersely, the applicant complained in his notes and letters that his sentence of 3 years’ imprisonment was too long. Before us, the applicant added that, given his great and ongoing pain, meaning that which was caused by his injured private parts, and also because the whole case was a police frame-up, he should at least have some reduction in sentence.

Discussion

21.As pointed out by the Single Judge, there is nothing improper about the applicant’s sentence.  It is in line with the authorities and unimpeachable in all the circumstances of the case.

DISPOSAL & LOSS OF TIME

22.The evidence against the applicant was overwhelming.  His renewed applications were, on the other hand, completely lacking in merit.  That being the case, these applications must be refused with the order that there be a loss of time of 6 weeks pursuant to section 83W of the Criminal Procedure Ordinance, Cap 221.

The applicant appeared in person

Miss Janice Cheuk, acting SPP of the Department of Justice, for the respondent

[1] Contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

[2] Macrae JA.

[3] She did not give evidence, but her statement to the police was admitted (Exhibit P20).

[4] Appeal Bundle, pages 15 – 17; Reasons for Verdict, paragraphs 29 – 35.

[5] Appeal Bundle, pages 17 – 18; Reasons for Verdict, paragraphs 36 – 40.

[6] Appeal Bundle, page 20; Reasons for Sentence, paragraph 7.

[7] Appeal Bundle, pages 20 – 21; Reasons for Sentence, paragraphs 8 – 12.

[8] Paragraph 13 of the Single’s Judge’s judgment. 

[9] Paragraphs 14 – 16 of the Single Judge’s judgment.

[10] Paragraphs 19 of the Single Judge’s judgment.

[11] A note dated 25 September 2014 attached to his Form XI; a note dated 8 June 2015 attached to his Form XIII; a letter dated 27 August 2015 addressed to the Registrar; a letter dated 15 October 2015 addressed to the Registrar; and a letter dated 18 November 2015 with no specific addressee.

[12] There was one letter complaining about his maltreatment by the Correctional Services Department but that does not constitute any ground of appeal.