HKSAR v. Siu Yung Sang

CACC000163/1998

CACC 163/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 163 OF 1998

(ON APPEAL FROM DCCC 1319 OF 1997)

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Coram: Hon Power, V.-P., Mortimer, V.-P. and Liu, J.A. in Court

Date of Hearing: 13 August 1998

Date of Judgment: 13 August 1998

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J U D G M E N T

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Liu, J.A.:

1. The applicant faced one charge of burglary in the District Court. He was charged that on 10 November 1997 in Tuen Mun, New Territories, he entered Room 1407 of Leung Wah House, Leung King Estate without permission. From that room, he was said to have stolen $500 cash, four gold necklaces, one gold finger ring with a green stone, one K-gold finger ring, six gold pendants, one bead bracelet, three gold bracelets, one green stone pendant and one gold bracelet with a green stone. He pleaded not guilty to the charge. At the conclusion of the trial, he was found guilty by the District Judge and sentenced to 3 years' imprisonment. He has filed a home-made application for leave to appeal against both conviction and sentence. Apparently he is aggrieved by what he must have regarded as an excessive sentence of 3 years. But he has given no specific ground in his application for leave to appeal against sentence. He also sets out no grounds whatsoever in his application for leave to appeal against conviction.

2. Today, he complains that his former girl-friend, Miss Ng prevaricated and her evidence was inconsistent with the statement she gave to the police at the police station. He said that another eye witness who saw the culprit was not called but the full statement of Mr Lau Yuet Ho, PW4 was read out in court and Mr Tong of counsel representing the applicant then, said to the judge that there was no need for calling Mr Lau for cross-examination. However, reference was made in the judgment to what Mr Lau saw. The applicant also complains that through counsel, he learned that the judge was considering sending him to a Training Centre if he should plead guilty. He does not wish to be sent to Training Centre but he said that his prison term reflects the judge's prejudice. He further complains that discrepancies in the evidence of the police were all too readily condoned by the judge but that whatever apparent inconsistencies in the evidence of himself and his co-defendant, they were not so favourably received by the judge. He re-asserts his innocence before this court today. That is the sum total of his complaints.

3. The judge heard a number of witnesses and the evidence was that on 10 November 1997, Madam Kwan discovered $500 missing. After unsuccessful enquiries made of her relatives and friends, the next day, she discovered that a number of jewellery items were also lost. They were worth over $10,000. A report was thereupon made to the police.

4. Madam Kwan's daughter was a friend of the applicant's then girl-friend, Miss Ng. From the evidence of Madam Kwan's daughter, it transpired that on one occasion the applicant had held her rucksack containing her house keys when she was visiting a lavatory in a fast-food shop in a Leung King Estate market. Later, she discovered her keys to be missing from her rucksack but her mother gave her another set. Still later, she found her old keys in the rucksack. She put the new keys away and used her old set. In fact, on 10 November 1997, so the judge heard evidence about, when the applicant and the daughter of Madam Kwan and the applicant's girl-friend, Miss Ng, were together, the applicant excused himself after he had helped the daughter of Madam Kwan, holding her rucksack for a time. His said that he had to obtain something from Leung Wah House and the others were told to wait. Subsequently he returned. The police produced a video-tape of the lifts of Leung Wah House on the day in question, and from the tape, it could be seen that the applicant was using one of those lifts in the afternoon of 10 November 1997. He was using it for about 20 seconds at about 2:41 p.m. A neighbour, Mr Lau, PW4, said in his statement, that he saw a man come out of Madam Kwan's flat, but Mr Lau was not in a position to identify the person he saw. After the report made to the police, the co-defendant and the applicant were both arrested and the applicant, according to the police, responded to enquiry made of him in these terms:

"I did this case. I gave the articles I stole to Hui Ching-fai for selling."

Hui is the co-defendant of the applicant.

5. The applicant also gave an account to the police at the station under caution as to how he gained entry to the flat and stole the money and the jewellery. The former girl-friend of the applicant gave evidence. She was not throughout consistent. On the verbal and written statements given or provided to the police by the applicant, the video-tape, and the circumstances surrounding the help offered to Madam Kwan's daughter, the judge was able to conclude that the applicant was guilty as charged.

6. Only the applicant gave evidence. He gave a bare denial. He explained that his use of the lift was because he was on his way to try to contact a friend on the 29th floor. From the evidence of the daughter of Madam Kwan and the video-tape, it was open to the judge to draw an irresistible inference that the applicant was the culprit, and he did. Moreover, there were the oral and written statements given by the applicant to the police upon which the judge also relied. None of the complaints made by the applicant to this court today could have any impact on the finding of the judge based upon the very damning evidence against him. The judge rightly came to his conclusion. The conviction of the applicant can, in no way, be said to be either unsafe or unsatisfactory. We dismiss the applicant's application for leave to appeal against conviction.

(The applicant indicates that he wishes to add nothing further to his application for leave to appeal against sentence).

7. The applicant also seeks leave to appeal against sentence. He gives no specific grounds in support of his application. He is not supplementing his bald application to-day. The judge took into consideration his audacity and breach of the trust placed upon him by a friend. The applicant is a young man of 19 but he is not a person without previous convictions. The judge gave the applicant a sentence of 3 years which the judge described as "the recommended sentence for burglary of residential premises". The basis upon which the judge acted in his sentencing exercise cannot be faulted, nor indeed, can the applicant advance any reasons to challenge it. His application is wholly without substance. For his unmeritorious attempt, this court orders a loss of time of 2 months. His application for leave to appeal against sentence is also dismissed.

Representation:

Applicant, Siu Yung Sang, in person.

Mr Barry Moorfoot (SADPP) & Mr Daryanani (DPP) for Respondent.