HKSAR v. Man Shun Tai

[English Translation – 英譯本]

CACC 80/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 80 OF 2015

(ON APPEAL FROM DCCC NO 919 OF 2014)

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BETWEEN

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JUDGMENT

Hon Yeung VP (giving the judgment of the Court):

Introduction

1.The applicant (Man Shun Tai) was charged with one charge of attempted burglary.  He pleaded not guilty and was tried before HH Judge Stanley Chan (“the trial judge”).

2.On 16 February 2015, the trial judge found the applicant guilty and on the same day sentenced him to imprisonment of three years and six months.  The applicant was aggrieved at his conviction.  On 4 March 2015, he applied for leave to appeal against conviction.

3.On 9 December 2015 a single judge of the Court of Appeal dismissed his application.  The applicant does not give up and he applies again for leave, hoping that he would be allowed to appeal against his conviction.

Prosecution case and evidence

4.The prosecution alleged that in the evening of 16 August 2014 the applicant and another person, who is at large, acted furtively near no. 23 Bisney Road, Pokfulam and that they were being watched by police officers who were conducting an anti-burglary operation there.  One of the officers, PC 12073, saw that the applicant climbed up a drainpipe to the outside of a residential unit on the 1^st floor of no. 23 Bisney Road.  PC 12073 said that the applicant attempted to open a window of the unit with his hand but without success.  Thereupon, he climbed down to the ground and walked to the hillside on Sassoon Road near the canteen of the University of Hong Kong.

5.Six or seven police officers took part in the anti-burglary operation, but only one of them (PC 12073) claimed that he had seen that the applicant climbed up the drainpipe.  At that time he was wearing a jacket and a cap and had a mask over his mouth.  According to PC 12073, after the applicant returned to the ground, he took off the mask, the jacket and the gloves [sic], exposing a red T shirt he was wearing.  PC 12073 further said that when he first saw the applicant, the applicant was also wearing a red T shirt and that he put on the cap, the mask and the jacket only when he was about to climb up the drainpipe.

6.PC 12073 immediately reported to his team mates and asked for support, but the applicant and the person who is at large walked away hurriedly.  Finally, the applicant was intercepted but the other person managed to escape.

7.The police alleged that when the applicant was being questioned he said he was having a walk in the hill, but that he did not disclose what relationship he had with the person who got away.  The police officers searched the black plastic bag which the applicant held in his hand and found that in the bag there were a blue pullover, a black jacket, a mask, labour gloves and a small torch.

8.When the police officers handcuffed the applicant, he did not cooperate and behaved nervously.  His elbow was injured and bled.

9.In the video-recorded interview conducted in the police station, the applicant denied having acted in any way which had anything to do with the crime of burglary.  He explained that at the material time, he had knocked off and he went past the place.  He just wanted to see what food there was at the university canteen.

10.The applicant further said that on the day in question, he was working in a construction site about half an hour’s walk from the scene of the offence.  He admitted that the black plastic bag and the things in it, namely a cap, a mask, gloves, a blue pullover and a black jacket belonged to him, but he denied that there was an electric torch in the bag.  He complained that the police framed him.  Prosecution evidence shows that the applicant had not been employed at any construction site near the scene of the offence.

Applicant’s case and evidence

11.The applicant denied the prosecution’s allegations and maintained that he did not commit the offence.  He complained that the police officers lied and wrongly accused him, but he did not give evidence and did not call any witness.

Verdict given by the trial judge

12.The trial judge pointed out that although the applicant did not make any confession under caution, he did change the version of his story.  One moment he said he was looking for someone at the scene; the next he said he was going to the canteen for a meal; and at yet another moment he mentioned that he was working at a construction site.  The trial judge rejected the applicant’s explanation given during the video-recorded interview.

13.The trial judge stated that a police officer saw that the applicant climbed up the drainpipe fixed on the outside of the building and tampered with a window, but that he failed to do anything and left.  The trial judge found that the applicant, when being watched by the police officer, did climb up the drainpipe, reached the 1^st floor of the building, and did tamper with the window with his hand.

14.The trial judge found that the police officers involved in this case were all honest and reliable witnesses, and that they had no motive to lie against the applicant.

15.The trial judge found that the acts of the applicant, namely climbing up the drainpipe to the 1^st floor of the building and tampering with the window with his hand were more than preparatory to the commission of the relevant offence and constituted attempted burglary. Therefore, he found the applicant guilty.

16.In giving his verdict of guilty, the trial judge made the following comments on the police officers’ integrity:

“The evidence of the police officers was not shaken at all when they were being cross-examined by defence counsel. I do not believe that the defendant had been assaulted by any police officer when he was intercepted or when he was in the police station. The police officers did not need to fabricate evidence to falsely accuse the defendant of attempted burglary. Had they been minded to do that, they could have also made up evidence that the defendant made an oral confession at the scene … ”

“I do not believe that these police officers would, for the purpose of giving the defendant ‘an additional charge’ of (having the defendant charged with) attempted burglary, be so unscrupulous and foolish as to commit an offence which is even more serious, ie conspiracy to pervert the course of justice.”

Grounds of appeal

17.The applicant submitted that the police officers’ evidence was not credible and that there were discrepancies between the evidence of some police officers and their statements.  He also pointed to inconsistencies between the prosecution’s summary of facts and the witnesses’ evidence.  The applicant emphasized that the upper garments which he was wearing were not stained with any dirt, so he could not possibly have climbed up and down the drainpipe as alleged by the prosecution witness, and that the stains on his jeans had nothing to do with this case.

18.The applicant submitted that it was simply impossible that the prosecution witnesses could see him climb the drainpipe, and that the prosecution did not have any scientific evidence to support the charge against him.  He stressed that no sole marks were found on the drainpipe of the building, and that there was no evidence which showed that any clothings on his person had come into contact with the drainpipe or the wall of the building. He complained that the trial judge did not consider the questionable areas in this case, and that therefore the guilty verdict was wrong.

Discussion

19.Since the applicant did not give any evidence at the trial, nor did he call any witness, what the verdict would be was mainly dependent on the veracity and accuracy of the evidence of the police officers. If the evidence of the police officers (particularly PC 12073) was true and accurate, it would be sufficient to prove that the applicant did climb up to the 1^st floor of no. 23 Bisney Road and that he did tamper with a window with his hand.  Such acts of the applicant were sufficient to constitute attempted burglary.

20.At the trial, counsel for the applicant did point out to the court evidence and views favourable to the applicant.

21.The trial judge did consider carefully the prosecution evidence and submissions made by the two sides.  In the end, the trial judge found that the prosecution witnesses were honest and reliable, and that the court could safely act on their evidence.

22.The verdict in this case is entirely based on the findings of fact made by the trial judge.  The evidence against the applicant came from a number of police officers and all their evidence supports the charge preferred by the prosecution against the applicant.

23.On the face of it, the trial judge had every reason to accept the prosecution witnesses’ evidence and to act on their evidence, particularly when the applicant did not give evidence or call any witness to contradict, undermine or explain the prosecution evidence against him.

24.The absence of scientific evidence and other supporting evidence does not mean that the court could not accept the police officers’ evidence.

25.That being said, the verdict in this case is wholly founded on the trial judge’s findings about the credibility of the evidence of the police officers, especially that of PC 12073’s evidence.  Therefore, the way in which the trial judge dealt which these police officers’ evidence must conform to the established legal principles.

26.One of the established legal principles is that when the court is considering the credibility and reliability of the evidence of the witnesses (including the defendant’s evidence), all evidence must be placed on the same footing.  The court must not treat police officers’ evidence on the basis that police officers are less likely to tell lies (R v Culbertson (1970) 54 Crim App R 310).

27.In Culbertson, the trial judge, in his summing up to the jury, told them not to concern themselves with the consequence of acquitting the defendant that would be suffered by the police officers who testified against the defendant, but he added that the police officers would be “finished and would be out of the police within a very short time”.

28.The Court of Appeal of Hong Kong has all along applied the above-mentioned principle in hearing cases (see R v Wong Kim Wah & another (CACC 258/1993)).

29.When the trial judge was considering the credibility of the evidence of the police officers involved in this case, he emphasized that the police officers did not need to fabricate evidence to falsely accuse the applicant of attempted burglary and that they would not, for the purpose of having the applicant charged with attempted burglary, be so unscrupulous and foolish as to commit an offence which was even more serious, ie conspiracy to pervert the course of justice.

30.The message conveyed by the trial judge is clear.  Its meaning is that there was no incentive for the police officers to frame up the applicant, nor were they unscrupulous and foolish enough to do so.  The comment made by the trial judge indicates that he thought that the police officers’ evidence was more credible than the evidence of other witnesses.

31.The approach adopted by the trial judge was not proper. We need to once again remind judges who hear criminal cases that they cannot consider the evidence of a witness, who is a police officer, in this way.  The reason is that to consider the evidence in this way will give rise to an appearance that the defendant has not received a fair trial.

32.The improper approach adopted by the trial judge, ie to single out the issue of the credibility of the police officers’ evidence and to deal with it in isolation, is not necessarily a material irregularity sufficiently serious for the guilty verdict given at the trial to be set aside.

33.In fact, in Culbertson, the English Court of Appeal (Criminal Division) held that the trial judge’s comment to the jury that if they acquitted the defendant, the police officers who testified against him would be “finished and would be out of the police within a very short time” did not constitute a material irregularity sufficient to justify quashing the conviction.

34.In R v Fisher (1983) Crim L.R. 486, the summing up given by the trial judge to the jury included passages to the effect that some criminal offences were more serious when committed by a certain kind of people and perjury by a police officer to secure a false conviction of an innocent person was about the most serious criminal offence a police officer could commit, and that any police officer convicted of perjury knew, and any group of police officers who conspired to give false evidence to secure a conviction against an innocent person and were convicted of conspiracy knew they would receive a very heavy sentence at the court’s hands.  The English Court of Appeal reiterated that a trial judge should not put evidence given by police officers into a category different from that given by other witnesses, and should not tell the jury about the dire results which might follow from police officers telling lies, and that otherwise, the conviction would be regarded as unsafe and unsatisfactory and would be quashed.

35.The guilty verdict in this case was entirely given on the basis of the credibility of the evidence of the police officers, the evidence of PC12073 in particular.  The prosecution did not adduce any supporting evidence which could show that the applicant did climb up the drainpipe to the residential unit in question and did attempt to open the window of the unit with his hand.

36.We consider that when the trial judge committed a mistake of principle in the course of his dealing with the police officers’ evidence, with the result that the trial became unfair, the appropriate remedy is to quash the conviction.

37.We grant the renewed application made by the applicant for leave to appeal against conviction, and allow his appeal.  We quash the applicant’s conviction and set aside his sentence.

Mr Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the Respondent.

The Applicant, acting in person, present.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.