HKSAR v. Chong Lam Yau

CACC000252A/2002

CACC252/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.252 OF 2002

(ON APPEAL FROM DCCC 159 OF 2002)

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Coram: Hon Stuart-Moore VP, Stock JA and Gall J in Court

Date of Hearing: 23 September 2003

Date of Judgment: 23 September 2003

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J U D G M E N T

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Gall J (giving the judgment of the Court) :

1.The applicant was convicted of two counts of burglary with two others on 15 May 2002 after trial by Deputy Judge Browne. He now seeks leave to appeal the conviction in respect of the second burglary out of time.

2.The two burglaries took place on the same evening in premises that lay across a corridor from each other. The offences were discovered at about 9 p.m. on 18 December 2001 when patrolling police saw three men descending the staircase of the building carrying an office chair in which was a safe covered by a blanket. One was the applicant. The men tried to escape up the stairs with the safe but when challenged by the police left the safe and fled. They were captured after a short chase.

3.The premises from which the safe had come were found on the 7th floor of the building. The door had been forced. The burglary of the chair and the safe was Charge 1 at the trial.

4.Across the corridor from those premises was another premises, the door to which had also been forced. Enquiries were made and it was ascertained that a quantity of jewellery and some cash had been taken from those premises. On one of the three men, not this applicant, were found a watch and a pen stolen from those premises. This burglary was the subject of Charge 2. This applicant was the 2nd defendant in the trial.

5.The evidence against this applicant in respect of Charge 2 was his presence at the mezzanine floor of the building when he was seen with the two other defendants with the chair and the safe taken in the burglary in Charge 1. That he ran when he became aware of the presence of the police. That one of his co-accused, the 3rd defendant, was found in possession of property taken in the burglary in Charge 2.

6.On 14 February 2003, this court heard an application for leave to appeal from an applicant who was the 1st defendant in that trial. Leave was granted and the appeal heard. This court held that the evidence against the applicant in that appeal was circumstantial and did not necessarily lead to an inference that the applicant was guilty but left open other inferences, not involving the guilt of that applicant, that were real possibilities. That appeal was HKSAR v. Chan Wing Yuen, CACC252/2002. This case is on precisely the same terms and is not opposed by the respondent.

7.Accordingly, we grant to the applicant leave to appeal against his conviction out of time in respect of Charge 2 and, treating this hearing as the appeal, we allow the appeal, quash the conviction and sentence.

Representation:

Mr Vincent Wong, SGC of Department of Justice, for the Respondent/HKSAR

Mr Paul Wu, instructed by the Director of Legal Aid, for the Applicant