HKSAR v. Yung Kit Leung

[English Translation – 英譯本]

HCMA 5/2021

[2022] HKCFI 605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 5 OF 2021

(ON APPEAL FROM KCCC 811/2020)

____________________

____________________

Before:  Hon Barnes J in Court

Date of Hearing: 14 February 2022

Date of Judgment: 14 March 2022

Judgment

A.   Introduction

1.The appellant was charged with one count of criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong.  The appellant pleaded not guilty and was convicted after trial by Ms Chong Ching Wai, Erica, a deputy magistrate of the Kowloon City Magistrates’ Courts (hereinafter referred to as “the magistrate”).  The appellant was sentenced to a term of imprisonment of one month, suspended for 12 months, and was ordered to pay compensation of $1,800 to the first prosecution witness (“PW1”).  The appellant appeals against conviction.

B.   Admitted facts

2.The magistrate set out in the Statement of Findings the facts admitted by the prosecution and the defence:

“The facts admitted by the prosecution and the defence are as follows:

1. PW1, Cho Wai Sin (transliteration) (hereinafter referred to as “Ms Cho”) was the owner of the flat in question, situated at Chinese Floor 8, 1 Hing Yan Street. At 5:45 pm on 6 May 2020, the second prosecution witness (“PW2”), Police Constable 27962, arrested the defendant for the offence of burglary. Under caution, the defendant replied voluntarily that: ‘I saw that Floor 8 of 1 Hing Yan Street was vacant, and was hooked with a wire, and so I got the wire, went in to live inside, and [added] three locks to keep stray cats.’

2. Between 5:20 pm and 5:40 pm on the same day, Detective Police Constable 9178 took 18 photos (Exhibit P3) of the flat of the theft case and seized two door locks from the flat as exhibits. (Exhibit P4)

3. Between 7:05 pm and 7:35 pm on the same day, at Interview Room 34A of Kowloon City Police Station, in the presence of the defendant, PW2 accurately recorded the above reply by the defendant in his Police (Notebook) No. 6130873. (Exhibit P1)

4. PW2 did read over the content of the post-recorded cautioned statement to the defendant, and let him read the content himself, and it was confirmed that no amendment, addition or supplement was needed. Subsequently, the defendant wrote down voluntarily a closing declaration and signed to confirm that the post-recorded statement was an accurate record. The defence agreed that no one ever used any force, threat or inducement to obtain any reply from the defendant.

5. At the police station, PW2 asked the defendant to produce the three keys to the flat as exhibits.  The exhibits have all along been in due custody of the police since seizure. (Exhibit P2)”

C.   Facts of the case

3.The magistrate also set out the prosecution case and the defence case:

“Prosecution case

6. The prosecution called a total of two prosecution witnesses to give evidence. Ms Cho purchased the flat in question in 1987. In October 2018, no one resided in that flat. The aforesaid location was mainly used for storing some old furniture.

7. Ms Cho’s flat had a wooden door and a metal gate. However, due to the failure to meet some Fire Services regulations at that time, she dismantled her metal gate. As a result, there was only a wooden door, with no metal gate installed, at the entrance to her flat at that time. There was only one original door lock, which has been in use since 1987, on her wooden door at that time. Her metal gate was all along stored in the living room of the flat.

8. On a certain day in October 2018, due to a typhoon, Ms Cho returned to the aforesaid address for the purpose of checking. Since there was a typhoon at that time, Ms Cho worried that one single wooden door was not sufficient for withstanding the typhoon and feared that the wind would blow open the wooden door. In order to secure the wooden door, after locking it, she used a metal chain and another lock to firmly fasten it to the door frame, and then left that flat.

9. On a certain day in May 2020, someone told Ms Cho that there was a problem of water dripping from an air-conditioner at her flat, and so she returned to the aforesaid address on 6 May 2020. Upon return to the aforesaid address, she found that the lock firmly fastening the metal chain and the wooden door had been removed. A new lock had been installed on the wooden door of the flat. The metal gate had been installed at the main entrance, and a new lock and a movable door bolt had also been installed on the metal gate. Ms Cho therefore made a report to the police. At the same time, she also fetched a locksmith to remove the new locks and opened the door to check the circumstances inside the flat. She found that someone was residing in her flat and keeping some stray cats without her consent. There were a large quantity of rubbish and some cat cages for keeping stray cats inside the flat.

10. Subsequently, when PW2 was conducting an investigation, the appellant returned to the aforesaid address. The appellant ran towards the police at that time, and the police intercepted him and made inquiries of him. The prosecution witness (“PW”) therefore asked the defendant where he wanted to go, and the appellant replied that he was returning home. PW2 described him as appearing nervous at that time.

11. The police arrested him. Under caution, the appellant admitted, ‘I saw that the Floor 8 of 1 Hing Yan Street was vacant, and was hooked with a wire, and so I got the wire removed and went in to live inside, and added three locks for keeping stray cats.’ The police therefore conducted a body search on the appellant, and found that the appellant was in possession of the keys to the three locks of that flat.

Defence case

12. In January 2019, the defendant, with a few stray cats, rented and lived in one of the flats in a building near the flat in question. At that time, the owner of the flat told the appellant that since some other neighbours complained against him for keeping stray cats, he could no [longer] live there with the stray cats, and he was told to think of a solution to deal with his stray cats, otherwise, the owner would not continue to rent that flat to him.

13. In February 2019, the appellant found that the flat in question was vacant, with no one residing there.  As described by the appellant, that flat had no metal gate at that time, and there was only a wooden door, which was very old.  The wooden door was not locked and was only attached to the door frame by a wire.  The appellant thus took a photo of the condition of the flat at that time and then left.  That photo was produced to the court as Exhibit D1.

14. In April, the appellant returned to that flat and saw the same condition.  The appellant then left the aforesaid address.

15. In August of the same year, the appellant returned to that flat again and saw the same condition. The appellant therefore decided to move into that flat with his stray cats.

16. First of all, he loosened the wire and the door was opened, and then he entered the flat and carried out renovation works, which included but were not limited to adding locks to the wooden door, re-installing the metal gate, and adding a lock and a movable door bolt to the metal gate.

17. The appellant then started residing at the aforesaid flat with his stray cats until the day of the discovery of the offence.

18. On the material day, when the appellant was on the way home, he saw the police on the ground floor of the building where the flat in question was.  He then went forward to tell PW2 that his mailbox had been broken open previously and asked the police for assistance.  During the conversation, it was discovered that PW2 was investigating about the flat where he was residing in.  He at once produced the keys to the wooden door and the metal gate on his own initiative and under caution, he admitted that he had added three new locks to the wooden door and the metal gate.  He also confirmed that he had carried out renovation works on the metal gate and the wooden door.”

D.   Analysis and findings made by the magistrate

4.After giving herself the relevant legal directions, the magistrate made the following analysis and findings:

“Findings and analysis of evidence

23. According to the prosecution case, PW1, namely the owner of the flat, had not returned to the flat in question since October 2018. Before she left, that flat was vacant, and she had never agreed to let anyone else make any alteration to her wooden door or metal gate, nor let anyone reside in her flat. And at all material times, Ms Cho did not know the defendant.

24. Ms Cho confirmed that there was only one lock, which was the original lock, on her wooden door. Renovation works were done on the wooden door in 2018. She and her husband, in concerted effort, re-painted the wooden door, as well as the door lock and the door handle.

25. She also renovated and re-painted her metal gate. However, due to the restriction of the Fire Services regulations, she did not install it in front of the main door.  She only placed the metal gate in the living room.

26. On a certain day in October 2018, due [to] a typhoon, Ms Cho returned to the aforesaid address to check.  Right before Ms Cho left the aforesaid address, she locked the wooden door, used a metal chain of normal size to tie the handle of the wooden door to the frame of the metal gate and fastened it firmly with a lock, in the hope of securing the wooden door.

27. Ms Cho confirmed that her wooden door had had only the original door lock at all times, and her metal gate had only one hole for lock. When she returned to the flat in question on 6 May 2020, the old door lock was no longer usable.

28. Furthermore, an additional door lock had been installed on the wooden door out of no reason.  Since there was an additional lock, it was very difficult to open her wooden door.

29. As for her metal gate, an additional lock had been installed in the existing keyhole and there was also a movable door bolt.  There was damage to the paint on both the wooden door and the metal gate.

30. I find that Ms Cho and PW2 were honest and reliable witnesses, and their evidence was simple, clear and straightforward, and was unshaken under cross-examination.  I accept that their evidence was the true account of what actually happened.

31. According to the testimony of the defendant, he found that no one was residing at the aforesaid address at the beginning of 2019.  He went repeatedly to the aforesaid address to check.  He found that no one had been residing there for long.  So he decided to move into the aforesaid flat to reside with the stray cats.

32. The defendant did not damage the original lock of the wooden door at all material times.  He never saw any metal chain tying the wooden door to the door frame either.

33. There was an interval between the time when Ms Cho left the aforesaid address and the time when the defendant discovered that flat. There is no evidence in the present case showing what happened during the interval.  I therefore accept that when the defendant first discovered that flat, namely at the beginning of 2019, the appearance of the main door was the same as what was shown in the defence witness’s photo D1.

34. However, he re-painted the wooden door and the metal gate of the flat in question, and added three locks to the wooden door and the metal gate.  The three locks did not exist on the original wooden door or metal gate.

35. Moreover, the defendant also re-installed the metal gate at the main door, and without the consent of Ms Cho, he encroached upon Ms Cho’s flat as his own residence.  I accept that his evidence was a true account of what actually happened.

36. Due to the alterations made by defendant, the original appearance of the wooden door and the metal gate had been changed by the defendant.  The defendant asserted that he had done renovation works on the wooden door and the metal gate, but he had not damaged them, and had added value to them instead.

37. However, I do not think this is the crux of this case.  The crux of this case is that the defendant did add three locks to the wooden door and the metal gate.  And the defendant knew that he changed the original appearance of the wooden door and the metal gate by doing this.

38. And when he was performing such acts, he clearly knew that he was not the owner of the wooden door or the metal gate, nor did he have the consent of the owner when he did the alterations.

39. Therefore, I am of the view that even on the testimony of the defendant, it was already sufficient to constitute the offence of criminal damage.

40. I also make a further analysis of whether that the defendant directly [moved] into the flat at the aforesaid address on the perception that the flat was vacant amounted to a reasonable excuse.

41. Upon a careful analysis of the defendant’s testimony, I am of the view that even if the defendant was forced by the owner to move out for taking in stray cats, it could not constitute a reasonable excuse.

42. I therefore find that the prosecution has proved the elements of the offence beyond reasonable doubt.  I therefore find the defendant guilty.”

E.   Grounds of appeal

5.Mr Carter T C Chim, of counsel representing the appellant, put forward two grounds of appeal, contending that the conviction was unsafe.  I will deal with them one by one.

E.1.   Ground of appeal (1)

6.After finding that the appellant honestly believed the flat in question was already vacated, the magistrate erred in not considering that the appellant honestly believed what he did were damaging property belonging to himself.  Such a belief of the appellant: (a) meant that he did not have the mens rea; and/or (b) constituted a reasonable excuse.

E.1. a. Ground of appeal (1)(a)

7.Section 60(1) of the Crimes Ordinance (Cap 200) provides that:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

8.In respect of the mens rea of “criminal damage”, the appellant cited James LJ’s interpretation in R v Smith[1]:

“Applying the ordinary principles of mens rea, the intention and recklessness and the absence of lawful excuse required to constitute the offense have reference to property belonging to another. It follows that in our judgment no offence is committed under this section if a person destroys or causes damage to property belonging to another if he does so in the honest though mistaken belief that the property is his own, and provided that the belief is honestly held it is irrelevant to consider whether or not the belief is justified.”[2]

9.It was argued that if the defendant honestly believed that he was damaging property belonging to himself, even if his belief was mistaken or unreasonable, it did not constitute mens rea.

10.The appellant accepted that there was no direct evidence in the present case supporting that he held such a belief.  It was submitted that in all the circumstances of the present case, it was an irresistible inference that the appellant held such a belief.

11.It was emphasised that the magistrate convicted the appellant based on full acceptance of the defence case[3].  The defence case included the following:

(1)  The appellant made admission to the police (which was not disputed) that “I saw that Floor 8 of 1 Hing Yan Street was vacant and was hooked with a wire.  So I got the wire and went in to live inside and added three locks for keeping stray cats.”[4]

(2)  It was only after visiting the flat in question for three times and firmly believed that no one was living there that the appellant moved and live inside the flat in question[5].

(3)  Upon being questioned by the police, the appellant replied that he was returning home[6].

(4)  The appellant had resided in the flat in question for at least a duration of nine months[7].

(5)  At the moment before being arrested, he told PW2 (a police officer) that his mailbox had been broken open previously[8].

(6)  The appellant renovated the wooden door and installed locks, which did not exist originally, at his own expenses[9].

(7)  The flat was not locked before the time of the offence[10].

(8)  As far as the appellant knew, the flat in question had been vacant for over one year and three months[11].

12.The counsel representing the appellant at the trial pointed out in his closing submission that[12], “… the door of the flat, everything, it was in his view a deserted and vacated place … well, he repaired something that no one wanted, it was not his intention to damage it, because no one wanted that thing, and it was not the case of knowing full well that – Because the entire flat, the door and the condition inside made the defendant fully believe that it was an abandoned flat.”[13]

13.It was suggested that on the basis of the above undisputed facts and the grounds below, at the material time, the appellant genuinely believed that the flat in question (including the wooden door and the metal gate) had already been abandoned by the owner, and so after moving in, he believed that he was only dealing with his own property.  Likewise, he also genuinely believed that he had the authority to perform the acts in question.

14.It was submitted that the appellant visited the flat in question for three times between February and August 2019, and moved into the flat only after confirming that no one was living there, and the act of adverse possession itself did not contravene any law.  Secondly, the appellant had all along treated the flat in question as his home since August 2019, and he moved away only after the owner returned to the flat on 6 May 2020.  From this, it could be seen that the appellant lawfully regarded the flat in question as his residence during the time of the offence, which was the only reason why he renovated the wooden door at his own expenses.  It tended to be unreasonable and contrary to common sense if it was said to be his intention to “destroy or damage” the wooden door of his own home.  Therefore, the appellant invited the court to find that since he had honestly believed that the flat in question was property belonging to himself during the time of the offence, he did not have the mens rea required for conviction.

15.It was submitted for the appellant that reading the Statement of Findings as a whole, it seemed that the magistrate had not considered at all whether the appellant had the mens rea required for conviction, and therefore the conviction was unsafe.

E.1.b. Ground of appeal (1)(b)

16.It was submitted for the appellant that section 64(2) and 64(5) of the Crimes Ordinance obviously preserved lawful excuses other than those in the Ordinance. Section 64(5) of the Ordinance provides that “[t]his section shall not be construed as casting doubt on any defence recognized by law as a defence to criminal charges.”

17.It was submitted that the Court of Final Appeal had established the lawful excuse by way of the claim of right in HKSAR v Wong Sui-ching[14].  The defendant of that case and contractors destroyed with an excavator the corrugated iron sheds and fruit trees in PW1’s possession on a piece of land[15].  They were charged with the offence of “criminal damage”, contrary to section 60(1) of the Ordinance[16].  At the trial, the defendant contended that she was acting as the manager of a tso which was the registered owner of the land in question[17].  The defendant argued that PW1 was a mere trespasser, and therefore the property she destroyed was not “property belonging to another”[18], and she honestly believed that she was entitled to carry out the clearance and demolition[19].  The trial magistrate of that case subsequently found that the evidence failed to establish that she was the owner of the land[20].

18.One of the defences advanced by the defendant in Wong Sui-ching was that she had a lawful excuse by way of a claim of right, which exists outside the two cases set out in paragraphs (a) and (b) of section 64(2) and is recognized by section 64(2)[21]. In respect of the magistrate’s decision on conviction, the Court of Final Appeal stated in the judgment:

“The Magistrate’s treatment of ‘lawful excuse’ was highly problematical. It was necessary for the prosecution to negative the respondent’s [defendant’s] alleged belief in her entitlement to demolish the fixtures. However, the Magistrate twice stated in paragraph 60 of the Statement of Findings that he assumed that the respondent honestly believed that she had the right to carry out the clearance and demolition. He evidently did not appreciate the exculpatory consequences of that assumption, especially given the terms of section 64(3)[22].”[23]

19.The Court of Final Appeal discussed that section 60 of the Ordinance adopted the provisions in the English Criminal Damage Act 1971 which stemmed from a report of the English Law Commission.  In respect of lawful excuses, the Law Commission noted that the law as it then stood drew a distinction between: (1) a defendant damaging property which he believed he owned, and (2) a defendant doing the same to someone else’s property, honestly believing he had the right to do so in order to protect his own property interests.  In situation (1), the law recognised a claim of right, whether reasonable or not, if the defendant honestly but erroneously believed he was dealing with his own property[24].  The Law Commission did not propose any change in respect of situation (1).  Thus, in situation (1), the defendant would be treated as having a lawful excuse by way of a claim of right even if the belief and means used were unreasonable[25].

20.Therefore, even though the Court of Final Appeal eventually allowed the appeal lodged by the prosecution on the point of law[26], it was of the view that the defendant’s conviction should not be restored, because the magistrate assumed that the defendant honestly believed that she had the right to carry out the clearance and demolition, which – if taken to be a finding – ought to have led to her acquittal. Thus, restoring the magistrate’s decision would not provide a viable basis for the prosecution’s (sic) conviction[27].

21.It was submitted that as it could be seen from the judgment of the Court of Final Appeal, that as long as a defendant honestly believed that he was dealing with his own property, even if he was not actually the owner of such property or his belief was unreasonable or in fact erroneous, it would constitute a reasonable excuse by way of a claim of right.

22.It was contended that this lawful excuse was undoubtedly crucial to the principal determination of the Court of Final Appeal.  In holding that as long as another person had in the damaged property one of the proprietary rights or interests under section 59(2) of the Ordinance, the requirement of the “property belonging to another” was satisfied, the Court of Final Appeal emphasised that it did not of itself result in penalising the owner of the property, and that it should attract criminal liability only if the owner damaged the property, which he himself owned but which was in someone else’s custody or control, without lawful excuse (that is without any honest belief in his being entitled so to act)[28].  Subsequently, it was for this reason that the Court of Final Appeal rejected the submission made by the defendant of that case that section 59(2) of the Ordinance was unconstitutional[29].

23.It was submitted that reading the Statement of Findings as a whole, the magistrate did not mention, explore or consider this lawful excuse at all.  However, based on the undisputed facts, the appellant contended that it was erroneous of the magistrate not to do so.  The appellant treated the flat in question as his home during the period of the offence.  At that time, he was a person having the “custody or control” of the flat in question, which also meant that pursuant to section 59(2)(a) of the Ordinance, the flat in question shall be regarded as belonging to the appellant during the period of the offence.  Even though the owner of the flat had the title of the flat in question under civil law, it was not sufficient to negate the appellant’s honest belief that he was dealing with his own property during the period of the offence under criminal law.  While dealing with the crucial issue of “lawful excuse”, the magistrate only stated, “I am of the view that even if the defendant was forced by the owner to move out for taking in stray cats, it could not constitute a reasonable excuse”[30].  The appellant therefore invited the court to hold that the magistrate had not sufficiently analysed whether the appellant had the lawful excuse by way of right of claim, and hence his conviction was unsafe.

E.2    Respondent’s reply

24.Mr Hui Hin Cho, Joe, Senior Public Prosecutor acting for the respondent, adopted the written submission of Ms Lily Yip, Public Prosecutor, and submitted that in respect of the appellant’s emphasis, based on the undisputed facts of the case, that during the period of the offence, the appellant genuinely believed that the flat in question (including the wooden door and the metal gate) had already been abandoned by the owner, therefore, the appellant genuinely believed that he was dealing with his own property, the respondent did not agree that the appellant had any basis to say so.

25.Firstly, the respondent pointed out that the magistrate did not fully accept the defence case; in particular, the magistrate stated clearly in paragraph 39 of the Statement of Findings[31], “… even on the testimony of the defendant, it was already sufficient to constitute the offence of criminal damage.” (emphasis added).

26.The respondent submitted that the magistrate accepted the defence case as quoted in the Statement of Findings, in which the magistrate never accepted that the flat in question had been abandoned, nor did she accept the appellant considered that he owned the wooden door and the metal gate of the flat in question.  What the magistrate accepted was that the appellant “… and without the consent of Ms Cho, had encroached upon Ms Cho’s flat as his own residence”[32].

27.Secondly, on the basis of the findings of the facts below, the magistrate had already taken into consideration that the appellant did not honestly believe that his acts were damaging property belonging to himself: —

(1)  The appellant alleged that there was a wire connecting the wooden door and the wooden frame[33]; there was evidence showing that Ms Cho did tightly close the entrance to the flat in question in order to prevent outsiders from entering;

(2)  The flat in question was vacant with no one residing there; (emphasis added)

(3)  The appellant entered the flat in question and added locks and a movable door bolt to the wooden door and the metal gate because he was forced by the owner to move out for keeping stray cats rather than because he considered himself having the right to reside in the flat in question[34];

(4)  The appellant clearly knew that he was not the owner of the wooden door or the metal gate of the flat in question[35].

28.The respondent submitted that nowhere in the Appeal Bundle indicated that at the trial, the appellant had pointed out to the court that he added locks and a movable door bolt to the wooden door and the metal gate because he considered himself to be the owner of the flat in question and/or the wooden door and the metal gate.  From the Appeal Bundle, it could be seen that the appellant’s evidence was that he resided in the flat in question only after damaging the wooden door and the metal gate in question[36], but not that he believed he was only dealing with his own property after moving into the flat.

29.The respondent submitted that there was no issue of claim of right in the present case, and therefore there was a significant difference from the facts of the case of Wong Sui-ching[37].

30.In the light of the above findings of facts, it was logical for the magistrate to find that the appellant’s acts were sufficient for constituting criminal damage.  The magistrate did consider whether the appellant had the mens rea required for conviction, and therefore his conviction was safe.

E.3.   My considerations

31.As admitted by the appellant, there was no direct evidence in the present case showing that he genuinely believed that the wooden door and the metal gate in question were property belonging to him.  At the trial, the defence argued that the appellant did not “damage” the property in question, but made the property “better” instead.  On appeal, Mr Chim concurred that the appellant’s acts already constituted the actus reus of the offence of “criminal damage”.

32.The appellant was a trespasser.  Before the appellant could successfully establish that he was an adverse possessor, he was still a trespasser.  Being “vacant” and being “abandoned” are totally different.  The appellant clearly knew that the flat was only “vacant”, and there was no evidence showing that it was “abandoned”.  The appellant had to break the wire on the lock of that wooden door before he could enter the flat in question to reside inside.  He could not possibly believe that the wooden door and the metal gate of that flat were property belonging to him.  I do not accept that there was evidence in the present case from which any reasonable inference that the appellant held such belief could be drawn.

33.The facts of the present case were also completely different from those of Wong Sui-ching cited on behalf of the appellant.  Viewing from whatever perspective, the appellant clearly knew that he was a trespasser, and he had no reason to believe that the wooden door and the metal gate were property belonging to him.  Evidently, he clearly knew that the wooden door and the metal gate belonged to the “owner” of the flat.

34.This ground of appeal is not substantiated.

F.   Ground of appeal (2)

35.It was submitted for the appellant that while the magistrate found that the appellant had resided in the flat in question for over nine months, and that the flat in question was not locked, she erred in finding that the appellant did not have the lawful excuse prescribed in section 64(2)(b) of the Crimes Ordinance.

36.Section 64 of the Ordinance provides that (with irrelevant parts omitted):

“(1) This section applies to any offence under section 60(1) …

(2) A person charged with an offence to which this section applies shall, … be treated for those purposes as having a lawful excuse—

(b) if he destroyed or damaged … the property in question … in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—

(i) that the property, right or interest was in immediate need of protection; and

(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

(3) For the purpose of this section, it is immaterial whether a belief is justified or not if it is honestly held.

(4) For the purposes of subsection (2), a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.”

37.It was submitted that it could be seen from the above provisions that the lawful excuse under section 64(2)(b) involved two questions: (1) whether the appellant’s acts were for protection of property belonging to himself or another; and (2) at the time of performing the acts, whether he honestly believed that the property was in immediate need of protection, and the means of protection he adopted were reasonable.

38.The appellant had moved into the flat in question and resided there continuously for over nine months[38], and there was his own property inside the flat in question, including the “rubbish” mentioned in the Statement of Findings (which were some miscellaneous items as seen from the photo album[39] in the Appeal Bundle) and the cats that he had taken in and kept.  Before the time of the offence, the flat in question was not locked[40].

39.It was submitted that the definition of property under section 59(1)(a) of the Crimes Ordinance was “property of a tangible nature, whether real or personal, including money and — (i) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession”.  Therefore, the cats that the appellant took in and kept in the flat in question might also be regarded as his property.

40.It was argued that the appellant renovated the wooden door and installed the metal gate and three new locks, from which the irresistible inference was that they were done to protect his property inside the flat in question.  Also, the appellant definitely believed that the property was in immediate need of protection.  He had resided in the flat in question for at least nine months, and the wooden door, metal gate and locks were evidently needed to keep his property inside the flat in question in safe custody.  The purpose of his acts was the same as that of an ordinary family which installed a door and a lock at the flat where it was residing to prevent burglars from trespassing and/or to prevent its own pets from wandering away.

41.It was submitted for the appellant that the requirement of “immediate need” under section 64(2)(b) of the Crimes Ordinance was not a strict one.  The appellant cited Chamberlain v Lindon[41].  In that case, the defendant destroyed a wall on the land of another person, because that wall blocked a road which he had the right of way.  On appeal, the prosecution pointed out that the wall had already existed for over nine months and the defendant was negotiating with the owner of that wall for demolishing that wall, and therefore the defendant was not in “immediate need” of destroying it.  In dismissing the prosecution’s appeal, Sullivan J held that since the defendant was in present need of destroying that wall at that time, section 64(2)(b) was satisfied[42].

42.It was argued that the appellant believed that the means of protection that he adopted were indisputable and reasonable having regard to all the circumstances.  He had merely renovated the wooden door and installed the metal gate and new locks.  As stated by the magistrate, what he did changed the appearance of the wooden door and the metal gate.  The measures taken by him were merely for the protection of his property inside the flat in question, which were not different from those adopted by people residing in any flats.

43.It was submitted that when the appellant was performing his acts, it was also in accordance with the lawful excuse under section 64(2)(b) of the Ordinance.  The magistrate, after accepting the defence case, did not take this point into account at all.  This was an obvious error, and the conviction was unsafe.

F.1.   Respondent’s reply

44.The respondent contended that the magistrate had found that the appellant performed such acts when he clearly knew that he was not the owner of the wooden door or the metal gate of the flat in question, and he encroached upon Ms Cho’s flat as his own residence without her consent.

45.Nowhere in the Appeal Bundle indicated that the appellant had said to the court at trial that he had installed the metal gate and three new locks in order to protect his own property inside the flat in question.

46.The respondent submitted that the magistrate, upon an analysis of the appellant’s testimony, found that the appellant performed such acts because he was forced to move out for having taken in and kept stray cats.  The magistrate had the advantage of seeing and hearing the appellant give evidence.  The magistrate’s finding was purely within the scope of her determination.  That finding was not extremely self-opinionated or arbitrary, nor was it illogical or inherently improbable.  There was no evidence showing that the magistrate did misquote, omit, or fail to consider or analyse any significant aspect of the appellant’s evidence, nor was there any procedural error during the trial that rendered the conviction unsafe.

F.2.   My considerations

47.I do not concur with the submission made by counsel for the appellant.  The appellant was obviously a “trespasser”.  Even if he considered it necessary to protect the property belonging to himself, it did not mean that he had a reasonable excuse to damage something which was not his property, but, even worse, it was the property belonging to the owner of the flat which he had occupied without authority.

48.This ground of appeal is not substantiated.

G.   Decision

49.For the reasons given above, I dismiss the appellant’s appeal against conviction.

Mr Hui Hin Cho, Joe, Senior Public Prosecutor, of the Department of Justice, for the HKSAR, the respondent

Mr Carter T C Chim, instructed by Patricia Ho & Associates, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.