HKSAR v. Lau Kwok Cheung

HCMA000851/2003

HCMA 851/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 851 OF 2003

(ON APPEAL FROM NKCC 3727 OF 2003)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 6 November 2003

Date of Judgment: 6 November 2003

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J U D G M E N T

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1.The Appellant was convicted after trial of one charge of 'Conspiracy to Commit Burglary' and was sentenced to 15 months' imprisonment.

2.The facts of this case is simply that at about 1.00 am on 2 February 2002, a shop proprietor heard some sort of tampering of a chain and iron grille doors downstairs and so he then reported the matter to the police. PW2 was the police officer who was instructed to go there and when he arrived, he saw the Appellant running away from the premises. The Appellant was stopped and upon being searched, a pair of grey woollen gloves was found in his left jacket pocket and a mobile phone in his right hand. The Appellant initially said to the police that he had these things because he was cold and he was in that area because he had gone out for a walk after having had a quarrel with his mother. PW2 then examined the mobile phone and found that 5 calls had been made from that phone to the phone of another arrested person, Kwong Chi-ming. So the police officer then asked the Appellant about the phone. Upon the Appellant saying that he was acting as a lookout, PW2 then arrested and cautioned him. After caution, the Appellant then said he did not have money for Chinese New Year and he wanted to commit the burglary in Kwok Hing with Ah Ming and Ah Hung.

3.The Appellant was represented by counsel at trial and PW2 denied defence counsel's assertions that the Appellant had not been running and that he had given the Appellant the impression that Kwong had been caught, and that he had induced the Appellant to admit.

4.Evidence is also given by another police officer that he had stopped another male who was walking down from that same building who was named Kwong Chi-ming. The Prosecution also attempted to produce a caution statement taken from the Appellant subsequently, but the learned Magistrate quite rightly refused to allow the admission of this caution statement because the police officer who interviewed the Appellant had said that whether the Appellant was willing or not willing to answer question, he was going to carry on questioning him.

5.At the close of the Prosecution's case, the Appellant elected to give evidence. The Appellant denied he was running but admitted he was walking in a quick pace because he wanted to catch the last bus. The Appellant said that he earlier had a meal with this person called Kwong Chi-ming but they separated. He had told this to the police officer PW2 when the police officer asked him about such thing. He said that he was induced by PW2 to say he was on the street acting as a lookout because PW2 told him that the charge was a less serious one. The Appellant said that he never acted as a lookout but he only signed the police record because he would be treated better if he signed it. He was also afraid that he would be beaten up.

6.Under cross-examination, he admitted that he was cautioned but he did not understand the caution fully. The learned Magistrate at the conclusion of all the evidence considered, first of all, the statement made by the Appellant both before and after the caution at the scene. He decided that these were voluntary and therefore admissible into evidence.

7.The learned Magistrate found PW2 to be an honest and believable witness and accepted everything he said as to the circumstances of the arrest. He also found that it cannot be disputed that a burglary or an attempted burglary had occurred and he found that it was clear from the Appellant's admissions which he put full weight on that he had conspired with Kwong and Ah Hung to commit the burglary, and so he convicted the Appellant.

8.The Appellant is unrepresented in this appeal. His grounds of appeal against conviction is that he believed that the charge is bad because neither Kwong Chi-ming nor Ah Hung had been charged. The Magistrate relied on the admission of the Appellant to convict the Appellant of conspiracy with them, so there is no merit in this ground of appeal.

9.The Appellant also complains that he had been threatened by the police. All this was canvassed before the learned Magistrate, the learned Magistrate had made his ruling and I see no error in his ruling. As far as his complaint to CAPO is concerned, it is not a ground of appeal.

10.In relation to the appeal against sentence, the Appellant's ground of appeal is that he was wrongly convicted and that his girlfriend has lost her baby as a result of this matter and that he therefore had been punished enough. These are not valid grounds of appeal against sentence but I did go on to consider whether this sentence was in any way manifestly excessive or wrong in principle. The Court of Appeal has laid down guidelines that for burglary of non-domestic premises, a starting point should normally be one of 2 1/2 years. Here the learned Magistrate was well aware of that but he gave the Appellant a light sentence in the circumstances of 15 months' imprisonment, so I see no reason to interfere with that.

11.So the appeal against conviction is dismissed and so is the appeal against sentence.

Representation:

Mr Sharman Lam, SGC of Department of Justice, for the Respondent

Mr Lau Kwok Cheung, the Appellant, in person