HKSAR v. Gonzalez Martinez Jefferson Jose

Case No.CACC 272/2016

Court

Court of Appeal

Date08 Sep 2017

Judge—

Case Document

100%Judiciary

CACC 272/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 272OF 2016

(ON APPEAL FROM DCCC NO. 28OF 2016)

____________

BETWEEN
	HKSAR	Respondent
	and
	Gonzalez Martinez Jefferson Jose	Applicant

____________

Before: Hon Lunn VP in Court

Dates of Written Submissions:	The Applicant - 30 June 2017 The Respondent - 14 July 2017
Date of Judgment: 8 September 2017

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J U D G M E N T

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1.The applicant, the 2^nd defendant at trial, seeks leave to appeal against his conviction on 3 August 2016, after trial before Deputy District Judge W H Ko, of a charge of burglary (Charge 1) on 26 October 2015, together with two co-defendants, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. The 1^st defendant was convicted on his pleas of guilty to Charge 1 and of going equipped for stealing (Charge 2). The 3^rd defendant was convicted on his plea of guilty, of the alternative charge of handling stolen goods, namely a wristwatch belonging to Madam Chu (Charge 3).

The Trial

The prosecution case

2.No prosecution witnesses were called at trial and the evidence was adduced by way of admitted facts and witnesses’ statements.

3.On 26 October 2015, domestic premises at 2/F, Realfound Mansion, 30 A, Stanley Main Street, Stanley was burgled and a wristwatch, items of jewellery and cash stolen to a total value of about $210,000. The lock to the front door had been prised open, as had a safe in the living room and a bedside cabinet in a bedroom in which some of the stolen items were stored. A Colombian passport in the name of the applicant was found on the floor in another bedroom in the premises. A report was made to the police.

4.Madam Chu Ki Mui (PW1) and her daughter, Ms Yip Nga Man (PW2), lived at the premises. Ms Yip had locked the door to the premises when she left at around 7:30 a.m. on 26 October 2015. On her return to the premises at about 3:20 p.m. that day, she observed that the premises had been broken into and property stolen.

5.On 28 October 2015, a wristwatch, which Madam Chu identified on 11 November 2015 as her property and having been stolen in the burglary, was pawned by a man who produced the passport of the 3^rd defendant at trial to the pawnshop owner.

6.The applicant, together with the 1^st and 3^rd defendants at trial, was arrested on 28 October 2015 in Discovery Bay Plaza, Lantau Island. Octopus cards found in the possession of the applicant and his two co‑defendants at trial were used to travel to Stanley at 12:44 hours on 26 October 2015. The applicant had arrived in Hong Kong on 6 October 2015.

7.In video-recorded interviews, the applicant denied having been to the burgled premises. He said that he had met the 1^st defendant on the aeroplane in which they had travelled to Hong Kong. They had stayed at the same hotel in Chungking mansions. They had come to know the 3^rd defendant, also a Colombian, in Hong Kong. The three of them checked in together at midday to a more economical hotel. On 26 October 2015, the three of them had travelled together to Stanley and gone for a walk on the beach. The applicant accepted that the passport which had been found in a bedroom in the premises was his passport. He declined to answer a question as to why it had been found at that place.

8.At around 11:50 hours on 28 October 2015, Ms Ip Sau Ping rented a single room at her Overseas Guesthouse, New Lucky House, Nathan Road in Jordan to three expatriate males. She took photographs with her mobile telephone of the passports produced in the name of the 1^st and 3^rd defendants at trial.^{^[1]} Also, she made a record in her guest registry of their names, passport numbers and the time and date that they had checked in to the guesthouse.^{^[2]} The third man did not produce any identification, explaining that his passport was held in the process of a visa application to the Mainland.

The defence case

9.The applicant did not avail himself of the right to give or call evidence in the defence case. The defence case as advanced in submissions made on behalf of the applicant was that there was no evidence that the burglary had been committed by more than one person and that it was a possibility that could not be excluded that the 1^st defendant might have taken the applicant’s passport to the premises at the time that he committed that offence.

Reasons for verdict

10.Of the fact that the applicant’s passport had been found in the premises after the commission of the burglary, the judge said “the only and irresistible inference that can be drawn is that the 2^nd defendant’s passport was left when the burglary took place on 26 October 2015.” ^{^[3]} Then, the judge went on to determine:^{^[4]}

“ The 2^nd defendant must have known that his passport was lost before he went with the 1^st and 3^rd defendants to the guesthouse. The passport is an important piece of identification document for a traveller when staying overseas. Yet there is no evidence showing that there was any report made to the police concerning the lost (sic) of the 2^nd defendant’s passport. The indisputable fact is that no report was made by the 2^nd defendant on 28 October 2015 as to the lost of his passport and he having specifically told the owner of the guesthouse he could not produce his passport, proceeded to go to Discovery Bay, allegedly for a walk at the beach, with the 1^st and 3^rd defendants. [Italics added.]

11.Of the circumstances in which the applicant’s passport had come to be in a bedroom in the burgled premises, the judge said:^{^[5]}

“ I was satisfied the only way was that he had been staying inside the bedroom of the premises and somehow left his passport there. His presence in the premises must be the time between 7:30 a.m. to 3:20 p.m. on 26 October 2015, when the burglary took place. The only and irresistible inference that can be drawn from his presence during that time inside the premises was that he was one of the persons who committed the burglary of the premises.”

12.Earlier, the judge had determined:^{^[6]}

“ I was satisfied on the evidence that it was the 2^nd defendant went with the 1^st and 3^rd defendants to Overseas Guesthouse at around noon time on 28 October 2015. I am also satisfied that it was the 2^nd defendant when asked for his identification document told Ms Ip that he could not produce any as his passport was used to apply for the visa for China permit.”

Subsequent application

13.Immediately after the judge had delivered his reasons for verdict, and before mitigation began, Mr Polson applied on behalf of the applicant to re‑open the case so that he could produce evidence that the applicant had made a report to the police on 26 October 2015 of the loss of his passport. He said that the matter had been brought to the attention of District Court Judge Woodcock at an earlier hearing, in particular that in the applicant’s prisoners property there was a police record evidencing that report. In response, the judge said “I cannot reopen the case after my verdict has been delivered.” ^{^[7]} The judge said that, in those circumstances, the remedy for the applicant was to appeal to the Court of Appeal.

Grounds of appeal against conviction

14.In the grounds of appeal against conviction advanced on behalf of the applicant, Mr Phil Chau submitted that the judge was wrong to conclude, from the discovery of the applicant’s passport inside the burgled premises, that the applicant had committed the burglary and had left his passport at the burgled premises. There was no evidence of how many burglars had committed the burglary and it was possible that the 1^st defendant, who admitted committing the burglary, had left the applicant’s passport at the premises.

15.Secondly, Mr Chau submitted that the judge had erred in finding that the applicant had not reported the loss of his passport. There was no evidence as to whether the applicant had or had not reported the loss of his passport. So, the judge had erred in finding that it was an “undisputed fact” that no report was made by the applicant of its loss. Thirdly, he contended that the judge erred in concluding that the applicant was the third person who had been present when the 1^st and 3^rd applicants presented their passports to register as guests in the New Lucky Guesthouse on 28 October 2015. There was no evidence as to the identity of that person.

The respondent’s submissions

16.In his written submissions for the respondent, Mr Ira Lui indicated that he did not oppose the grant of leave to appeal against conviction on grounds 1 and 2, albeit that he said that at the hearing of the appeal he would invite the Court to apply the ‘proviso’ and uphold the applicant’s conviction. On the other hand, Mr Lui said that he opposed the grant of leave on ground 3. He said that, having regard to the statements made by the applicant in his video records of interview, there was no room for dispute that it was the applicant who had checked in the Overseas Guesthouse with the 1^st and 3^rd defendants at about 11:50 a.m. on 28 October 2015.

17.Mr Lui acknowledged that the applicant had made a report at the Tsim Sha Shui Police Station of the loss of his passport at 19:36 hours on 26 October 2015. That information was known to the prosecution and had been disclosed to the defence prior to the trial.

18.There was no evidence before the judge as to whether or not there had been a report of the loss of his passport by the applicant. In those circumstances, Mr Lui acknowledged that the absence of a report was not “undisputable”. Further, Mr Lai acknowledged the failure of the applicant to report the loss of his passport “was of great importance” to the judge’s analysis of the evidence and was “practically the sole reason given for drawing adverse inference against the applicant.”

19.Of ground 3, Mr Lui submitted that, on a consideration of all the evidence including the statements made by the applicant in his video records of interview, the judge was entitled to find that the applicant was the third man present with the 1^st and 3^rd defendants at the time that they checked into the Overseas Guesthouse, in particular the man who had said that his passport was being held in the process of a visa being obtained for the Mainland.

20.Mr Lui invited the Court to note that in his video records of interview the applicant had said that he had stayed in two different hotels in Hong Kong. First, in premises in Jordan where, he shared a room with the 1^st defendant, whom he knew as Julio, for six to seven days. The applicant said that whilst he was in Hong Kong he had come to know the 3^rddefendant, whom he knew as Wilmar. Then, the three of them checked into another hotel. Mr Lui submitted that, although the applicant had not named that hotel his description of those events resonated with the evidence of Ms Ip:^{^[8]}

“ A. And… and we checked into the hotel at 12 midday.

Q. of which day?

A. The same day we checked in with him… all three.

In a more economical hotel.”

21.Ms Ip said that three men had checked into her Overseas Guesthouse at about 11:50 a.m. on 28 October 2015 and that in recording details of them she had recorded the names of the 1^st and 3^rd defendants, noting that one of the names of the 1^st defendant was Julio and one of the names of the 3^rd defendant was Wilmar.

A consideration of the submissions

22.I am satisfied that Mr Lai’s concession that grounds 1 and 2 are reasonably arguable is well made. Accordingly, I grant leave to appeal on those grounds.

Ground 3

23.There is no dispute that the applicant had been in the company of the 1^st and 3^rd defendants on 26 October 2015. He had travelled together with them on a bus to Stanley at 12:44 hours that day. The applicant admitted as much in his record of interview, saying that they had stayed in Stanley for about two hours.^{^[9]} Similarly, the applicant was in the company of the 1^st and 3^rd defendants at the time of his arrest in Discovery Bay in the early evening of 28 October 2015. In his record of interview, the applicant said that on 28 October 2015 the three of them occupied one room in a hotel, which they had all left together at about 5:30 pm and travelled to Discovery Bay. As noted earlier, the applicant had said “we checked into the hotel at 12 midday… all three.” Then, having been asked to focus on the 28October 2015, the following exchange ensued:^{^[10]}

“ Q. On October 28 of 2015… you together with Julio… with Wilmar… sleep in the same… with only one room… right?

A. Yes.

Q …. you three left the hostel together?

A. Yes… Sir… Yes.

Q. What time did (you) leave the hotel?

A. At about 5:30 in the afternoon.”

24.In those circumstances, in my judgment it is not reasonably arguable that the judge erred in determining that the applicant was the third man present when the 1^st and 3^rd defendants checked in to the Overseas guesthouse.

Conclusion

25.In the result, I grant the applicant leave to appeal against conviction on grounds 1 and 2, but I refuse leave to appeal on ground 3.

26.The applicant is advised that he has the right to renew his application to the Full Court for leave to appeal against conviction on ground 3, but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.