The Queen v. Yuen Yiu Cheung

HCMA000461/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 461 OF 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 9 May 1989

Date of Delivery of Judgment: 9 May 1989

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J U D G M E N T

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1. The Appellant pleaded not guilty in the Magistrates Court to two charges, one alleging burglary, and the other resisting a police officer.

2. He was convicted after trial on both charges and in respect of the first sentenced to imprisonment for six months and in respect of the second sentenced to imprisonment for two months, both sentences to be served concurrently. The learned magistrate also ordered that the Appellant pay costs in the sum of HK$2,000.00.

3. The Appellant now appeals against conviction and the order for costs. Originally, he also appealed against the sentences. But as he was released from prison last Saturday he is no longer interested in pursuing that part of the appeal.

4. The prosecution evidence was to the effect that the Appellant was found in multi-storey premises in Kimberley Road, Kowloon, in the early hours of the morning of the 24th November 1988. The building in which he was found had only been made ready for occupation about a month before. It consisted of commercial premises on the lower floors and residential premises on the upper floors. At the time of the Appellant's entry into the building, the commercial premises were un-occupied but about 40 of the residential premises were occupied. A caretaker of the management company looking after the premises was on patrol at about 3.40 a.m. that morning. He heard some noises on the ground floor acid on going to investigate, he saw the Appellant opening and closing drawers of a desk in the "construction part" of the building. He went to seek police assistance and a police officer-he was the second prosecution witness and he was then in uniform - arrived at 3.54 a.m. Having met the caretaker and arranged for the exits of the building to be guarded he began to search the building. Eventually he saw the Appellant who was about 3 or 4 steps up an escalator leading to the first floor and he shouted to him to stop. According to him, the Appellant on hearing the shout, turned, looked towards him and dropped a bundle of keys. The witness and one of his colleagues then went forward and caught hold of the Appellant, and in doing so apparently brought him to the ground. The police witness said that he did not notice anything particular about the Defendant at the time. He asked him why he had dropped the keys as soon as he saw the police.  He said the Appellant made no reply. He said that he when asked him how he came by the bundle of keys and what he intended to use them for and that the Appellant again made no reply. He said that he then told him that he would be arrested for burglary if he did not explain the purpose of getting the keys and the Appellant still made no reply. He said that at that stage her took out his handcuffs to handcuff him, reminding the Appellant he would be arrested for burglary if he gave no explanation for getting the bundle of keys. He said that the Appellant then pushed him away and that he and his colleague grabbed the Appellant. He put up a struggle. Eventually when the Inspector in charge of the police party arrived, the Appellant was handcuffed. He was then cautioned for burglary and resisting arrest. In reply to the caution, the Appellant said that he did not intend to burgle but intended to get the bundle of keys to go to the toilet. He told the officer that he had taken the keys out of the room on the ground floor, and that he had taken them for the purpose of going to the toilet. The officer then asked the Appellant to take him to the room from where he obtained the bundle of keys.

5. The Appellant gave evidence and called a witness. The gist of the Appellant's evidence was that he had been with a friend prior to this incident on a drinking spree, that he was under the influence of liquor. He had an upset stomach which resulted in his soiling his trousers and he was looking for a toilet in order to clean himself up. He entered the building found the toilet on the ground floor but as it was locked he then went looking around the building. He found the keys in a desk and was on his way to go back to the toilet when the police officers arrived on the scene.

6. The witness he called said that the Appellant had been drinking with him but, as they had parted before the Appellant entered the buliding. he was unable to give any evidence regarding what had happened while the Appellant was in the building.

7. The Appellant was represented at the trial by counsel, who is not present today, but who cross-examined quite closely the prosecution witnesses and made an elaborate submission at the close of the Appellant's case regarding, amongst other things, the credibility of the witnesses. The learned magistrate accepted generally the evidence of the caretaker and the police officer and found that the Appellant and his witness had been deliberately untruthful. He accepted the evidence that the Appellant was found in the premises in the circumstances related by the caretaker and the police officer, and on the basis of the finding of those primary fact came to the conclusion that leach of the charges had been proved.

8. In his appeal against conviction the Appellant relies on three grounds. The first is that the learned magistrate failed to give or to give any sufficient weigh to the evidence of the Appellant or his witness. In support of this ground Miss Ong relied on a number of matters and drew my attention to parts of the evidence given by the police officer which in her submission should have led the magistrate to find that the Appellant was adversely affected by alcohol. It is not necessary for me to deal with the individual points which she made with regard (to this ground because it seems to me that the learned magistrate, faced as he was with the implausible version, sold by the Appellant, and having found after having seen and heard the various witnesses that the police officer's version was I truthful, had a sound basis for accepting the evidence of the police officer and rejecting that of the Defendant where there was conflict between them. Having found that he evidence of the Appellant was not to be believed there was no call for the magistrate to give any weight to what they said. The criticism that he failed to give weight to what those witnesses said has no merit.

9. The second ground is that there was no evidence to negative the necessity for the Appellant to have the bundle of keys in his possession. Miss Ong Submits that the evidence was that the police officer, after hearing the Appellant's explanation after being cautioned for his presence in the building, did not investigate whether there was a toilet on the ground floor and, if so, whether it was locked. Merely taking the Appellant to the room containing ht edesk form where the Appellant removed the keys did not rebut the Appellant's explanation for his presence. Her submission is that the failure to do this should have led the magistrate to give credence to the Appellant's version. Whether there was a toilet on the ground floor did not matter once the magistrate was able to come to the conclusion, as he did, that he could not accept the Appellant's evidence having accepted that of the police officer. I find that understandable in view of the unchallenged evidence of the police officer regarding the attitude of the Appellant when the police officer first questioned him. I can find no merit in this ground whatsoever.

10. The third ground is that there was no evidence or no sufficient evidence to support the convictions.

11. Once the magistrate accepted, as he did, the evidence of the caretaker and the police officer about the conduct of the Appellant inside the building I do not see how he could have come to any conclusion other than guilt. Accordingly there is no merit in this ground and therefore no merit in any of grounds attacking the validity of the convictions.

12. In relation to the order that the Appellant pay HK$2,000.00 costs, there is nothing in the magistrate's statement of findings indicating why he made this order. It is, of course, within his power to make such an order but the making of an order in a case such as this is unusual. Mr. Arthur submits that it was an appropriate order to make in view of the finding by the learned magistrate that the Appellant and his witness were deliberately untruthful witnesses who had put their heads together to say the Appellant was drunk. It would have been, of course, appropriate for the magistrate to make such an order in such circumstances, but the question is why HK$2,000.00? HK$2,000.00 is, according to the papers, the amount of cash bail put up by the Appellant.

13. In the absence of reasons, it has the appearance of an arbitrary order rather than one made in the proper exercise of a discretion. Accordingly, I allow the appeal against the making of this order. I quash the order and order that the sum, if paid, be repaid to the Appellant. I allow the appeal only to that extent.

Representation:

Mr. M.J.B. Arthur, CC for the Crown.

Miss Ong Choo Neo (D.L.A.) for Appellant.