HKSAR v. Chau Tak Kwan

CACC000033/1999

CACC 33/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 33 OF 1999

(ON APPEAL FROM DCCC 1033/1996)

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

Date of hearing: 29 September 1999

Date of delivery of judgment: 29 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 after a trial in the District Court before Judge Davies of three counts of burglary and one of handling stolen goods. He now seeks leave to appeal against these convictions.

2. According to the prosecution case three police officers who were on duty near the Police Tactical Unit Base at Fanling saw a man standing bare footed with a black bag by his feet at Chi Wah Lane. They approached him and asked him to produce his identity card and inquired why he had no shoes on. The man who it transpired was the Applicant replied that earlier he had been chased by police officers near Pik Wu Garden and had lost his shoes. He was asked what was in the bag and he said that he had committed burglary at Flora Plaza and that after the burglary he had been knocked down by a vehicle while making his escape. He asked to see a doctor. An ambulance was called for the Applicant and he was arrested and cautioned. The Applicant then said "Ah Sir, it was I who did it. All the burglary cases committed in Flora Plaza were done by me. Please help to get me to see a doctor as soon as possible."

3. The Applicant was taken to hospital where it was discovered that he had sustained quite serious injuries including a fracture to his shoulder.

4. It subsequently transpired that all of the items in the black bag were identified by residents at the Flora Plaza as being their property. The items referred to in the charges one to three had been stolen on the day in question whereas the items in the fourth charge had been stolen some days earlier.

5. At his trial the Applicant went into the witness box. He said that earlier in the evening he had been knocked down by a large vehicle while crossing the road. He was in great pain and in a semi-conscious condition. He was given a lift in the vehicle and then dropped off at the point where he had been found by the police officers.

6. Shortly after this a car drew up and four or five men got out and identified themselves as police officers. He was asked to produce his identity card. He was also asked if he had recently assaulted a police officer. He denied this and told them what had happened and asked to see a doctor. In particular he referred to the pain in his shoulder.

7. While waiting for an ambulance to arrive, the police produced a bag and asked him if it belonged to him. He denied it. He said that no caution was ever administered and there was no discussion about any burglaries.

8. During the trial the Judge inquired of the counsel who was representing the Applicant whether any issue would be raised over the voluntariness of the admissions allegedly made by the Applicant. He was assured that the only issue which would be raised was the credibility of the Applicant. Notwithstanding this the Judge does state at p.17 of the appeal bundle that in the circumstances of the case, particularly having regard to the Applicant's physical and mental condition at the time of his arrest he did consider the question of the voluntariness of the statements made.

9. Although there was no voir dire he considered the evidence of the police officers and he was satisfied that there was no oppression on the part of the officers and that the statements were voluntary and that there were no valid grounds for him to exclude the statements as evidence.

10. The first re-amended perfected ground of appeal is that:

"1. The Learned Judge erred in law in that he failed to consider or resolve in a proper manner or at all the inconsistencies in the evidence of the vital prosecution witnesses (i.e. PW11 to PW13) see particularly transcript p.18 O - S: R v. Ma Yuen Ching Crim. App. No. 391 of 1996."

11. The first inconsistency complained of relates to the evidence given by PW11, PW12 and PW13 being the police officers who arrested the Applicant. The complaint which is made is that when PW11 asked the Applicant what was in the bag he replied that he had just burgled at Pik Wu Garden, i.e. Flora Plaza. PW12 gave evidence that he had just burgled Flora Plaza and the bag contained the things he got from the burglary. PW13 wasn't able to remember exactly what he said. There is no inconsistency here. PW11 had asked the Applicant what was in the bag. The reply has to be seen in this context. The gist of what was being said was the same.

12. The next complaint relates to the same three police officers. It is formulated in this way:

"(3)(a) PW11 and PW12 gave evidence that 'the appellant have burgled and got some gold ornaments. The appellant took them to a goldsmith shop and that's how he've (sic) got the gold bracelet in exchange with the goldsmith shop.':pp.40R-T, 67A-C

(b) On the other hand, PW13 said that the Appellant used some stolen money to purchase the wristlet [bracelet]:p.85I-M"

In this case there is an inconsistency in the evidence which was being given. It was not a significant discrepancy and it was clearly open to the Judge to accept the existence of the discrepancy. It needs to be added that this part of their evidence did not relate to the immediate surrounding circumstances at the time when the Applicant made the admissions attributed to him and consequently that the discrepancy such as it was was of much less materiality than would otherwise have been the case.

13. The remainder of the complaints made in the first re-amended perfected grounds of appeal relate more to matters of comment than to inconsistencies.

14. These comments are directed to quite a large extent to the nature of the injuries the Applicant had sustained and what might or might not have been observed by the police officers. It cannot be said that the Judge was in error in accepting the evidence of the officers.

15. The second re-amended perfected ground of appeal is that:

"2. The Learned Judge erred in law in that he wrongly found that he could accept the prosecution case because he did not believe the Appellant's explanation (p.19A-I, pp.20J-21C). Furthermore, in his endeavour to accept the prosecution case the Learned Judge wrongly entered into the realms of speculation and surmise. In particular the Learned Judge surmised that:

(1) the Appellant needed to confess in order to receive medical treatment (pp.17N - 18N);

(2) the passports had dropped out of one of the compartments of the travelling bag (pp.20J - 21C);

(3) the reasons why the proceeds of the Appellant's burglaries were mixed with those of the earlier burglaries: pp.20E-I."

16. It is true that the Judge did engage in some speculation. It was not however of such a nature as to render these convictions unsafe or unsatisfactory.

17. The fact of the matter remains that the Judge did accept the testimony of the officers had been truthful and reliable as he was clearly entitled to do.

18. By the same token he rejected the testimony of the Applicant. What this amounted to was essentially that the officers were deliberately framing him with these offences. Put simply he rejected this version of the events.

19. The third re-amended perfected ground of appeal is that:

"3.(a) The Learned Judge erred in law in that he wrongly failed to rule that the confession made to the police was inadmissible. Since the Learned Judge found that the Appellant 'had been injured quite seriously' and that 'he was in some considerable pain' and that the Appellant confessed to obtain medical attention which would otherwise not have been forthcoming the said confession was obtained in oppressive circumstances and/or was not voluntary and/or should have been excluded in the exercise of the Learned Judge's discretion (pp.17E-18N).

(b) The convictions recorded against the Appellant are unsafe and unsatisfactory by reason of the Learned Judge's failure to order a fresh trial before another judge once he became satisfied that there was an issue of voluntariness and admissibility concerning the Appellant's verbal statements to the police."

20. What has to be said immediately is that there was no evidence whatever that the officers threatened the Applicant that if he did not confess to the crimes medical assistance would be withheld.

21. There is also no reason why the officers might have been under any impression that the Applicant thought that this might be the case.

22. The Judge commented on the situation which prevailed and came to the not unreasonable conclusion on the evidence which was before him that it might not have been manifest to the officers that the Applicant had sustained such serious injuries and been in such pain.

23. What also needs to be borne in mind is that the Applicant was legally represented and when the Judge inquired whether there should be a voir dire on the admissibility of the statements he was informed that this was not necessary. It has not been suggested that counsel at the trial was flagrantly incompetent. Short of this this ground cannot be sustained.

24. The fourth re-amended perfected ground of appeal is that:

"4.(a) The Learned Judge erred in law in that in respect of 'the doctrine of recent possession' regarding all 4 charges in that he wrongly failed to evaluate the explanations given by the Appellant (pp.19J -20D): R v Lee Kin Fai Crim. App. No. 112 of 1990.

(b) The Learned Judge erred in law in that he wrongly failed to direct himself or consider in a proper manner or at all that a thief (the Appellant) cannot receive stolen goods from himself (p.20C-E): R v Seymour [1954] 1 WLR 678."

25. It would appear that the case of R. v. Lee Kin-fai unreported being Crim. App. No. 112 of 1990 is of little assistance.

26. That case mainly concerned the burden of proof relating to the explanation being furnished by the defendant. In the present case the Applicant is denying any possession of the black bag and its contents. Clearly the Judge accepted the evidence of the police officers that the bag was in the Applicant's possession and that all of the articles in the bag including those not the subject of the burglary charges were there and had been identified by their owners.

27. The Judge did not place reliance upon the doctrine of recent possession so far the handling charges were concerned. He dealt with the matter in this way at p.19Q:

"In relation to the handling charge, these items were found mixed with items recently stolen by the defendant by way of burglary. They have been identified as having been the proceeds of burglaries committed earlier in the month, but not so recent to their discovery to come within the doctrine but within circumstances which clearly and reasonably infer that the defendant knew or believed them to be stolen goods.

In the absence of a reasonable and innocent explanation for his possession of them I find him guilty of dishonestly receiving stolen goods knowing or believing them to be stolen goods at the time he took possession of them. Charge 4 is also proved."

28. There was indeed evidence from which it could reasonably be inferred that the Applicant knew or believed the goods to be stolen goods.

29. As regards 4(b) the Judge did not proceed upon the basis that the goods the subject of the handling charge had been stolen by him. The evidence was equivocal. It is also true that no useful purpose is likely to be achieved by speculating upon the Applicant's motives for being in possession of the proceeds of the burglaries committed on some other occasion by unknown person or persons who may or may not have included the Applicant.

30. It is however clear from the passage cited from p.19 of the appeal bundle that the Judge did differentiate between the proceeds of the recent burglary and those which had occurred earlier in the month. This must mean that he interpreted the Applicant's initial confession as relating to only the recent burglary spree he had been on that evening.

31. Be that as it may there was sufficient evidence to properly found the conviction on the fourth count.

32. These convictions were in no way unsafe or unsatisfactory and this application is dismissed.

33. Before leaving this matter it is necessary to make some observations concerning the sentences which were imposed. Other than for charge one they were clearly designed to achieve the final sentence which would be served rather than reflect the Defendant's criminality on those charges.

34. As has been said on numerous occasions, this is not a satisfactory approach to sentencing. Had the conviction on the first count been quashed for any reason the sentences imposed on the other counts would have been grossly inadequate. Proper sentences should be imposed on each charge and the necessary adjustment should be achieved by ordering that some of the sentences should be served concurrently if necessary.

Representation:

Mr. Stanley Chan, S.G.C. (D.P.P.) for Respondent

Mr. Christopher Grounds and Mr. Cheung Kam-chuen instructed by M/S Lau & Leung for Applicant