R. v. Chau Chun-kwong

CACC000142/1995

IN THE COURT OF APPEAL

1995, No.142

(Criminal)

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Coram: Hon. Power, V.-P., Bokhary & Liu, JJ.A.

Date of hearing: 8 November 1995

Date of judgment: 8 November 1995

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced three charges of burglary. After trial before Judge Hawkes in the District Court he was convicted on each count and ordered to be imprisoned for four years on each - the sentences to be concurrent. He now seeks leave to appeal against those convictions.

2. The applicant is a lift maintenance man. The first charge alleged that, on 27th October 1993, at the Peak in Hong Kong, having entered as a trespasser a building known as Flat 11A, No.15 Magazine Gap Road, he stole $1,000 Hong Kong currency, the property of Alberta Calubag.

3. The evidence on that count came from Miss Calubag who was a Filipino domestic helper. She said she saw the applicant in her room upon returning to it after having been away from the flat. She said that there was a short conversation and he gave her $1,000 and told her to keep her mouth shut and left. In fact, $1,000 of her own money was missing. She reported this to the caretaker who went to look for the man. He returned with the applicant who was, according to the caretaker's evidence, ostensibly helping in the search for the burglar.

4. The second charge occurred on 5th February 1993 alleging that, having entered as a trespasser part of a building known as 2501, Block A, 14 Tregunter Path, the applicant had attempted to steal therein. Again the principal witness was a Filipino domestic helper. She said that upon her return to the apartment, she saw that the lift was under repair but was, at that time, unattended. She attempted to open the door of the flat but was unable to do so as, it was apparently, obstructed. However she knelt down and saw white striped sport shoes. She then went to the ground floor and alerted the management. Whilst she was doing so the lift came down and the applicant came out of the lift. He was wearing shoes exactly similar to the one she had seen under the door.

5. The third charge, alleging an offence occurring in April 1993, was particularized as follows - that having entered No.7 Pollocks Path as a trespasser. stole ￥ 30,000, $50,000 Won, ￡ 90, $1,000 French Franc, $2,000 Baht and $200 Australian dollars, the property of Roderick Eddington.

6. The resident of the flat, Mr. Eddington, found that the foreign currency was missing when he made a search but he did not make any report at that time. The evidence from a Filipino domestic helper employed by Mr. Eddington was that the only person who could have had access to the flat would have been a lift maintenance man or an air-conditioning man. The victim said that he recognized the applicant as one of the people who did repairs the lift. The maid also said that she recognized him as one of the repair men.

7. The applicant admitted what had occurred on each of these occasions in his cautioned statements. The statements were the principal evidence against him supported, of course, particularly as regards the 1st charge, by the evidence of the witnesses.

8. In the first four grounds argued today by Mr. Hung, who appears for the applicant, it is submitted that the judge erred in admitting the cautioned statements because he failed to take into account, when considering whether the statements were voluntary, evidence of bruising and tenderness which came not only from the applicant but also from medical reports. The finding which is attacked is as follows.

"On the other hand I did not believe the accused's evidence of assaults, threats and inducements and other improprieties and am satisfied that however the accused's bruises were caused, they were not caused as a result of any actions by the police. As I was satisfied beyond reasonable doubt that all four disputed caution statements were voluntary statements, I admitted them into evidence."

The judge had earlier stated that this was a matter of credibility and that the two principal police witnesses "both impressed me as being truthful and reliable witnesses".

9. The evidence was that the applicant was in custody prior to his being examined by a doctor. There was no doubt cogent evidence showing that he had suffered certain bruising and abrasions. The judge was perfectly well-aware of this. It was, however, as he said, primarily a matter of credibility.

10. It was submitted by Mr. Hung that the judge failed to make findings which would, in effect, have expressly negatived the possibility that the injuries were inflicted by police officers. We are conscious of the strength of the arguments advanced by Mr. Hung based upon the medical evidence. This was, as the judge said, a matter of credibility which was for his consideration. Once he had made his finding as to credibility, it is difficult to see what more he could have said. Having accepted the evidence of the police officers he was satisfied that the injuries "were not caused as a result of any actions by the police". That ruling cannot be attacked as long as, when making it, he bore in mind the medical evidence, which he did, and the evidence of the relevant witnesses which we are satisfied he also did. Mr. Hung attempted to establish that there was evidence which showed positively that the injuries could not have been self-inflicted. He was not, in the outcome able to do so.

11. We turn then to Ground 5.

12. Ground 5 deals with the evidence of the domestic helper as to the sighting of the stripes sports shoes under the door. That evidence was used in conjunction with the admissions in the cautioned statements. Given that we are satisfied that the cautioned statements were properly before the court it is not necessary to canvass Ground 5 further.

13. We turn to Ground 6. It was submitted in Ground 6 that the judge had erred in relying upon the evidence of the domestic helper who said that only lift repair men and air-conditioning men were admitted to the flat. It is argued that this speculation upon which no weight should have been placed. We do not regard the evidence in that way. She was giving evidence of fact. It was evidence to indicate who would have had the opportunity to enter the flat. It is true that it did no more than that but, when it was placed with the evidence of the admission of the applicant that he did enter the flat, it was cogent supporting evidence.

14. We turn then to Ground 7 and Ground 8. In both of those grounds it is maintained that the judge failed to deal with discrepancies between the evidence of prosecution witnesses and that he failed to rule specifically upon particular aspects of the evidence. We do not think it necessary to detail the matters argued under these grounds. It suffices to say that they were not, we are satisfied, matters as to which the judge was called upon to make specific reference. A District Court judge is not required to deal with every single aspect of the evidence placed before him as long as he makes it plain that he has considered all of that evidence when coming to his conclusion.

15. We turn finally to Ground 10. In this ground it was argued that the judge might have considered irrelevant evidence when ruling upon the cautioned statements. We see nothing in this argument as the judge specifically stated that he had only considered evidence "relevant" to the admission of the statements. There being nothing to indicate otherwise we must accept that that was the evidence which he did consider and that it was upon the basis of that evidence that he admitted the statements. Nothing has been argued to persuade us that makes us consider that the convictions were either unsafe or unsatisfactory. The application for leave to appeal against conviction is therefore refused.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. Andy Hung assigned by D.L.A. for the Applicant.