HKSAR v. Jarmanjit Singh

CACC 179/2019

[2020] HKCA 131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 179 OF 2019

(ON APPEAL FROM DCCC NO 95 OF 2018)

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Before: Hon Zervos JA in Court

Date of Hearing: 3 March 2020

Date of Judgment: 3 March 2020

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J U D G M E N T

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1.The applicant stood trial in the District Court before HH Judge Dufton (the judge) variously charged with attempted burglary (Charge 1), breach of condition of stay (Charge 2), and failing to surrender to custody without reasonable cause (Charge 3). He pleaded guilty to Charges 2 and 3 and proceeded to trial in relation to Charge 1.

2.On 4 June 2019, the judge convicted the applicant of Charge 1 and sentenced him to a total term of imprisonment of 2 years and 6 months.

3.On 17 June 2019, the applicant filed an application for leave to appeal against conviction on Charge 1.  He states that he is innocent, and the judge was wrong to have rejected his evidence and accepted the evidence of the police officer.

4.On 22 August 2019, an application for legal aid by the applicant was refused. 

5.On 8 October 2019, the court received a letter from the applicant who confirmed that he wished to proceed with his application in person.  He complains that his conviction was without evidence because the judge wrongly accepted the evidence of the police officer.  He claims that the police officer gave false evidence at his trial.  He notes that there was no DNA or fingerprint evidence that incriminated him in the offence.  He further claims that the police have set him up because there was another person who was wearing the same clothes as he was at the material time, but the police let the other person go and arrested him instead.

6.The subject premises of the attempted burglary was Flat B, 2^nd Floor, Sui Ying Building, 1 Yuk Yat Street, Hung Hom, Kowloon, which consisted of 8 subdivided flats. The main entrance of Flat B was a metal gate with an electronic combination lock which could only be unlocked by using an electronic keyboard affixed to the door.  One of the subdivided flats was Flat B3, which was rented by Mr Chiu Chung Kin (PW1).  The entrance of Flat B3 consisted of a wooden door, which could only be unlocked by using PW1’s key.

7.Late in the evening on 13 October 2017, SPC 52778 (PW2) and PC 22394 positioned themselves near Flat B as part of an anti-burglary operation.  At about 2:58 am on 14 October 2017, PW2 heard the sound of someone pressing the electronic keyboard.  Shortly after, PW2 saw a male trying to open the door of Flat B3.  He saw that he was holding two cards, one white and one black.  The male used the black card to insert it through a gap of the door near the door lock, which he swiped up and down repeatedly.  The male then repeated the same action using the white card, while using his left hand to turn the doorknob in an attempt to open the door of the unit.  On seeing PW2, the male ran toward the main entrance of Flat B.  PW2 gave chase and arrested him in the lift lobby.  The person he arrested was the applicant.

8.PW2 testified that he was able to observe the male, whom he described as a person of fat build and wearing a long sleeved brown check shirt, blue jeans, black sport shoes and a silver bangle on his right hand.  He explained that the lighting was sufficient to enable him to have an unobstructed view of the corridor of Flat B.  He acknowledged in cross-examination that he was only able to see the face of the male for around one second and lost sight of him for about 6 seconds when he ran around the corner.  When he arrested the applicant, he found in the applicant’s trouser pocket one white card and one slightly damaged black card.

9.The defence case was one of mistaken identity. It was claimed that the person PW2 saw was not the applicant, but another male who was seen rushing out from behind the metal gate and leaving by the staircase.

10.The applicant testified that he went to Flat B, together with Manpreet Singh Mandy, to visit an amusement game centre.  He said that he and his friend were similarly dressed, except he extended the full length of the sleeves of his shirt, while his friend folded up the sleeves of the shirt he was wearing.  He said he followed his friend to the 2^nd floor flat, and after his friend had pressed the password for the gate he followed him into the premises.  He said he went to room 207 and pressed the doorbell for a long time but nobody opened the door.  He said he was able to open the gate and the wooden door because they were both unlocked.  He saw nothing inside as it was dark, and indicated to his friend that there was no game centre.  He said he closed the wooden door and gate and walked very fast towards the exit.  He said that when he opened the door his friend ran out and left by the staircase.  He said at no time did he stop outside Flat B3, although his friend stopped in the centre of the corridor where Flat B3 was located.  He said he did not pay attention to what his friend was doing because he had turned right at the end of the corridor to locate the game centre.  He said that the two cards that were seized from him were found in his purse which was in the pocket of his trousers.

11.The judge in his very comprehensive reasons for verdict summarised and analysed the evidence before him.  He rejected the applicant’s evidence, which he did not find credible.  He listed a number of matters that he found exhibited material inconsistencies in the applicant’s evidence.  He was satisfied that the applicant’s evidence that he went to Flat B to go to a game centre was entirely contrived in an attempt to give an innocent explanation for being at the location at 3 am on that day.

12.The judge accepted the evidence of PW2 and carefully directed himself on the issue of identification.  After a comprehensive review of the evidence, he was satisfied that PW2 correctly identified the applicant as the person he observed attempting to break into Flat B3.

13.The basis of the applicant’s application for leave to appeal against his conviction is to repeat his defence that this was a case of mistaken identity.  The judge very carefully considered the issue and rejected the applicant’s evidence and his defence of mistaken identity.  He found that the applicant was the person PW2 observed attempting to break into Flat B3.

14.I can find no fault with the judge’s comprehensive and careful analysis of the evidence, nor with the conclusions that he had reached in finding the applicant guilty of the offence of attempted burglary.

15.I do not find any merit whatsoever in the matters complained about by the applicant in relation to his trial.  I therefore refuse the applicant leave to appeal against his conviction.

16.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.

Ms Lisa Go, SPP (Ag) of the Department of Justice, for the respondent

The applicant appeared in person