HKSAR v. Ng Yuk Ki

CACC000411/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.411
(Criminal)

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Coram : Hon Nazareth, Ag. CJHC, Mayo & Stuart-Moore, JJ.A.

Date of Hearing : 29 January 1999

Date of Judgment : 29 January 1999

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 10th July 1998, this Applicant was convicted, following a trial before Deputy Judge Jenkins in the District Court, on charges of burglary with intent to steal and resisting arrest. He received a total sentence of three years' imprisonment. He now seeks leave to appeal against conviction.

2. The essential facts relied upon by the prosecution at trial amounted to the Applicant being caught red-handed as the result of a police surveillance on the building which was burgled, in response to a tip-off from someone who worked there that a torch, screwdriver and crowbar had been left on a window ledge on the 1st floor. The Applicant was observed, through binoculars, by police from their vantage point on top of a building about eight-storeys high, to come to the premises (referred to in the Charge) at 10:55 p.m. on 9th April 1998. He went to the tools and forced open a window. However, something must have disturbed him because he then went back to the ground floor where officers were now ready to arrest him. He ran away, but after a fierce struggle, was eventually subdued. The Applicant expressed himself as having nothing to say and, although he did allegedly make a prejudicial remark to a later caution, the judge decided not to take that into account having regard to the first answer given by the Applicant that he wished to say nothing.

3. The Applicant's case at trial was that he was in the building innocently. This was in order to do some cleaning work there. On his behalf a witness had been called to confirm that in March he had employed the Applicant to do some casual cleaning at a Japanese Restaurant in the building.

4. The original home-made grounds of appeal make a number of points. To begin with, the Applicant complains that if he was really guilty of these charges, he would not have been offered a negotiated deal between Counsel, which would have meant he could have pleaded guilty to attempted theft. This, of course, is not a ground of appeal in itself, but the Applicant's point is that this shows that the prosecution believed that they had insufficient evidence to support the charges.

5. In his first ground of appeal, he says that it was emphasised in the evidence of PW2 that :

"at the time the 'observation post' set up by 'the cops' was right opposite the scene of the incident, that is the rooftop of an eight-storeyed Chinese building right opposite the rear staircase of On Cheong Building, Public Square Street, Yau Ma Tei. Yet it was shown in the photo(s) I produced to 'His Honour' that there was merely a building measuring twenty odd storeys opposite the scene of the incident. [PW2] provided false information right at the beginning. Furthermore, he also said for sure that he had clearly seen me grapple slightly with a 'cop' for a very short while. This had disparity with the following testimony of other 'cops'. It was also one of the doubts regarding the duration of my grappling with the 'cop(s)'. More importantly it confirmed that it was in fact impossible for the 'cop' at the 'observation post' to see the events happening inside the building from the position of and perspective from over eight storeys. 'His Honour' neglected these doubts as well."

6. The judge said in his Reasons for Verdict, at page 9 A :

" The defendant called a witness who said that some time in March he had employed the defendant as a casual cleaning worker to do some work at a Japanese restaurant in the building in question. The defendant also produced a number of photographs of the building and of the vicinity of the building. From two of these photographs, that is photograph B4 and C1, it was apparent that the stairs that lead to the back door were open and could be easily seen from above. It was also apparent that in line with these stairs and directly opposite was a tall building, far taller than eight storeys, but I am satisfied that this was not the building from which the police made observation.

From the sketch, which I appreciate is not to scale, it is clear that the observation building in Cliff Road was not directly in line with the staircase but was to one side at an angle."

This finding exactly accords with PW2's evidence at page 69 F in the transcript :

"Q. You could also see the rear door.

A. Yes.

Q. And of course, it's got to be at an angle, isn't it?

A. Yes.

Q. At a steep angle.

A. No."

There is nothing in the point made by the Applicant in Ground 1.

7. Secondly, the Applicant submits that the judge objected to the production of the Applicant's medical report because the Applicant's injuries were not very serious. In the same ground, though on a completely different point, the Applicant seems to think that the judge had to finish the case by 10th July 1998 in order to go on annual leave, and that the case was therefore conducted in hasty fashion which has produced unfairness to him.

8. Taking the last point first, there is no indication of there being any truth at all to the suggestion that this trial was hastily conducted to finish by a particular deadline. This ground is utterly worthless and should never have been advanced. Every facility was given to the Applicant during his trial and whilst at times the judge had to be firm, and was right to be firm, he nevertheless gave a great deal of latitude to defence Counsel in exploring matters, in extraordinary detail, which were hardly in issue.

9. As for the medical evidence about the Applicant, there was none. The reasons for this are made clear in the Reasons for Verdict at page 8 E :

"...PW3 asked if he needed to see a doctor. The defendant made no reply. PW3 arrested and cautioned the defendant for burglary. The defendant replied, 'You have arrested me, I have nothing to say.' By this time other police officers had arrived.

PC 53472 (PW4) searched and found on the ledge outside the toilet window the crowbar, torch, a spanner and two screwdrivers. He also found the gloves on the ledge on the wall at the side of the stairs. PW3 told the defendant that these items were found and asked if he wanted to say anything, having been reminded that he was under caution. The defendant did reply, which reply I will deal with later on in these reasons.

The defendant was then taken to the police station. At the police station the defendant was again asked if he wanted to see a doctor. He said he did and so PW3 and two other police officers took him to Queen Elizabeth Hospital in an ambulance. After waiting for some time to see a doctor the defendant then said that he did not want to wait any longer and did not want to see the doctor. They then returned to the police station."

In summary, therefore, the police took the Applicant to the hospital, and it was his decision that he did not need to see the doctor. All of that is made clear in the evidence in the transcript we have of PW3 and it was confirmed again in cross-examination at page 130 of the Bundle.

10. In the Applicant's third ground of appeal, he says that :

" The police prosecuted me in the absence of 'human and material evidence' and were thus more obliged to make use of the only evidence 'that grey outer garment', and the guard in 'On Cheong Building' to confirm whether I was doing cleaning work at the scene of the incident that night. These should not be neglected.

Furthermore, since the 'cop' said that I had vehemently grappled with a 'cop', why did they not charge me with 'resisting arrest' as well upon arrival at the 'police station'? They only laid an additional charge of 'resisting arrest' eventually after knowing that I had made a complaint to 'Complaints Against Police Office' about being assaulted by a 'cop'."

11. As to the first point, it was of course accepted that the Applicant had a casual job of sorts within the building where the burglary took place. That is dealt with in the passage I have already cited from the Reasons for Verdict. Regarding the other point which comes under this ground, there either was, or there was not, evidence to support the 2nd Charge. The judge found convincing evidence that that offence was made out, and so on the transcript, it appears there was. There is nothing in this ground.

12. The fourth and final ground of his original application reads :

" At last 'His Honour' said in his judgment: it was [his] finding that that suspicious man attempted to break into the premises in the building, the scene of the incident and he was believed to be myself. I myself think: 'His Honour' was over-negligent concerning the different doubts in the above and convicted me perfunctorily, directly dealing a blow to the meaning of my life.

1. The judge should very well know that the iron door at the rear staircase of 'On Cheong Building' in the back lane of the scene of the incident was closed on a 24-hour basis. It was possible to make an entry only via the front doorway of the building.

2. Not only do I have human and material evidence to prove that I was working at the scene of the incident, but I also have material evidence proving 'cops' had given false evidence."

13. The Applicant, of course, was present throughout the evidence given at his trial and will have heard the evidence given of the first witness, PW1, at page 43 (just to take one example of his evidence) was being asked by the Applicant's own Counsel this question at line H :

"Q. Do you know if that door [referring to the backdoor of the alley] has ever been locked or is it normally locked?

A. That door was normally locked but in and around that period the ground floor was being renovated and there were workers going in and out of that door all the time during daytime.

Q. Can you be specific as to the period which you said renovation work had started at the ground floor?

A. Well, I think the renovation work started around the end of March. It was a big renovation. It was a bank on the ground floor and, as I said, it was a very big renovation and it was noisy and there were workers around throughout the day."

A little later, at page 44 S, this was asked :

"Q. And as far as you know, the renovation is still not completed and it's still in progress.

A. At the time of the incident."

The witness went on to confirm that the renovation appeared to have been carried on at the time of the burglary. This Applicant know perfectly well what the evidence in the case was and has chosen to ignore it.

14. At the call-over of the Applicant's case on 14th December 1998, the Applicant indicated that he had certain complaints to make about his Counsel's conduct. He was then invited to add a ground of complaint to his application, setting out his grievances. In the result, the Applicant wrote a letter which reads :

" I, Ng Yuk-ki, Case No.DCCC 502. This case occurred on 9.4.98, (I) was charged with two offences, namely Burglary with intent and Resisting arrest.

During the course of the whole trial, starting from the beginning till the end, the counsel representing me had never explained to me in detail about the doubts in this case, and (he) did not make effort to defend for me according to my wish. In fact, the major reason was that the defending counsel could not communicate through language with the defendant at all, which caused me to be wronged and sentenced into imprisonment. Therefore, I now complain against the counsel representing me in DCCC 502, that (he) did not make full effort and his attitude was irresponsible. And I also request the Legal Aid Department for a lawyer to lodge an appeal in the High Court. The grounds of applying Legal Aid:

(1) After my defending counsel had received the notice from the Legal Aid Department to represent me in the case DCCC 502 and received its defending documents, (he) did not gather the defending evidence which had to be put before the court for the defendant at all. He argued with the judge persistently for an injury report which could not be produced before the court, without considering the defendant's position as to whether such argument would cause an unfavourable effect upon the impression of me formed by the judge.

(2) Before the beginning of this trial, (he) did not seek instruction from the defendant as to the truth of the case, nor did he examine and discuss the case with the defendant, and not even an interpreter or an assistant was arranged for me. During the trial, I have to request the judge to provide me with an interpreter so that I can examine the doubts in the case with the counsel.

(3) As the defending counsel thought that I had previous record of serious offence(s), he deliberately told me to plead guilty before the beginning of the trial. Therefore, during the whole course of defence, (he) put forward some wrong reasoning intentionally and unintentionally, which made the judge had a wrongful response [intuitively]. Therefore, the judge sentenced me into 3 years' imprisonment rashly.

Therefore, I beg your honour and the Director of the Legal Aid Department to appeal and defend on behalf of me. Please grant me legal aid again."

The complaints that are made have not been borne out by anything this Applicant has told the Court.

15. We do not need to say more than that it is clear from the transcript that trial Counsel appears to have put the case for the defence fully and fearlessly, as was his duty. Every bit as important, the trial judge clearly understood the nature of the defence and reached his verdicts by taking a balanced view of the evidence of each side. In the end, the overwhelming nature of the evidence against this Applicant was summarised by the judge when he said it was "inconceivable" that the police had confused the Applicant with some other person who had forced open the window.

16. The Applicant, in Court today, tried to make out that the judge was strongly influenced against him with a knowledge of the appalling criminal record this Applicant has. That allegation was completely unfounded and untrue. The judge only had knowledge of the record when the antecedent history was given after conviction. This application is dismissed.

17. It is a wholly unmeritorious application, and for this reason we order that four months of the time spent in custody awaiting this hearing shall not count towards the Applicant's sentence.

Representation:

Mr P.S. Chapman, SADPP, for DPP/Respondent

Applicant NG Yuk Ki, appearing in person