HKSAR v. Chan Wai Hong

CACC000253/1999

CACC 253/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 253 OF 1999

(ON APPEAL FROM DCCC 112/1999)

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Coram: Hon. Stuart-Moore, V.-P., Mayo, and Leong, JJ.A. in Court

Date of hearing: 28 September 1999

Date of delivery of judgment: 28 September 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The Applicant was convicted on one count of burglary and sentenced to be detained in a Training Centre. He now seeks leave to appeal against his conviction.

2. The Applicant was one of the three defendants who appeared in the District Court before Deputy Judge Tong Man. The Applicant was D2. He alone was charged with the burglary. All three men were charged with procuring the making of an entry in the record of a bank by deception, contrary to s.18D of the Theft Ordinance, Cap. 210. D1 was convicted on this count but D2 and D3 were acquitted.

3. D2 was an employee of a company called Wanchai Ferry Peking Dumpling Company ("WCFPDC") which shared office accommodation with another company Shing Hing Plastic Manufacturing Company ("SHPMC") on the 12th floor of Summit Industrial Building at Sun Yip Street. Although both companies shared the 12th floor, they were separately partitioned and secured.

4. Miss Ng, an employee of SHPMC secured the office premises when she left work at 1 p.m. on 15th August 1998 which was a Saturday. She was the first person to report for work on 18th August 1998. She noticed that the ceiling tile above her desk had been tampered with. She also noticed that one of the ceiling tiles outside the partition to her office had also been tampered with and that there was a foot-print on the wall. Miss Ng also gave evidence that she noticed later that some cash had been stolen from her desk and that four blank cheques had been removed from the firm's cheque book which was held in her custody.

5. On 19th August 1998 she received a telephone call from an employee of the Kwangtung Provincial Bank inquiring whether the company had made out a cheque in favour of Lam Chi-hong who was D1 in the proceedings below. She said that the firm had not done so and accordingly payment on the cheque was stopped. She immediately reported the matter to her employer who was in the Mainland at the time.

6. She said that only she herself, her employer and some of his relatives had keys to the office. This evidence was confirmed by the employer.

7. Madam Kwong Siu-che, the supervisor of WCFPDC gave evidence that on the morning of 16th August 1998, she was approached by the Applicant who asked her for the key to the main entrance with the 12th floor as he said he wanted to collect some boxes. As he had not returned the key by twelve o'clock, she went to the 12th floor and saw the applicant there. He informed her that he had had difficulty in finding the boxes he was looking for. He left the premises with her.

8. In the light of the Applicant's acquittal on the second count it is not necessary to go into any detail concerning the facts supporting that charge.

9. D1 however was convicted of the offence. One of the stolen cheques had been made out in his favour for $100,000 and he had attended at the Kwangtung Provincial Bank in an attempt to encash it. As the cheque had been crossed he had had to open an account in his name to obtain payment of the proceeds.

10. All the defendants had made inculpatory statements to the police. D2 in his statement had admitted that D1 was a friend of his. However after a voir dire on the issue of the admissibility of the statements the Judge had ruled them to be inadmissible.

11. It will be appreciated from this short summary of the facts that the main issue which had to be resolved in relation to the first count was whether it was open to the Judge to draw an inference from the evidence relating to the opportunity the Applicant had to burgle SHPMC's premises that he had been the burglar.

12. It will be appreciated that there was no admissible evidence connecting the Applicant with D1.

13. As has been pointed out by Mr. Chui for the Applicant in his skeleton argument it is only right for a jury, or in this case the Judge, to draw an inference adverse to a Defendant if it is one that no reasonable man could fail to draw from the facts proved.

14. While the Applicant's attendance at the 12th floor of Summit Industrial Building on the morning of 16th August 1998 was obviously highly suspicious there was in our opinion insufficient evidence to enable the Judge to be satisfied at the appropriate level of the Applicant's guilt.

15. This being the case the conviction must be regarded as being unsafe and unsatisfactory.

16. At the commencement of the hearing before us, Mr. Pang for the prosecution advised us that he would not be supporting the conviction. It has to be said that it would have been helpful if we could have been informed of this at an earlier date. In this connection we would observe that it is the practice of counsel representing Appellants to provide us with a skeleton of the submissions they will be making to us. At the very least we should be informed if the conviction is not being supported.

17. We treat the application as the substantive appeal and we quash the conviction.

Representation:

Mr. Derek Pang, S.A.D.P.P. (D.P.P.) for Respondent

Mr. Steve Chui assigned by D.L.A. for Applicant (D2) (re: conviction)

Chan Wai-hong, Applicant (D2) in person (re: sentence)