The Queen v. Chan Ping Man

CACC000427/1990

BETWEEN

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Coram: Hon. Fuad, V.-P., Clough & Macdougall, JJ.A.

Date of hearing: 2 July 1991

Date of delivery of judgment: 2 July 1991

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JUDGMENT

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Clough, J.A. :

1. This is the judgment of the court.

2. The applicant, who is unrepresented, applies for leave to appeal against his conviction in the District Court after a trial by Deputy Judge Mckee on a charge of burglary.

3. He was charged under section 11(1)(a) of the Theft Ordinance (Cap. 210) with burglary of a residential flat on the 17th floor of a building in Causeway Bay on the 23rd April 1990. The particulars of offence in the charge alleged that he had entered the flat as a trespasser with intent to steal therein. It was common ground that nothing was stolen from the flat by the applicant after he effected entry and that he was arrested before he could leave. When arrested he denied to the police that he had committed burglary, but at the trial, at which he elected not to give evidence, no indication of the nature of his purpose in entering the flat in question (other than denial of intent to steal) seems to have been manifested.

4. The circumstances resulting in the burglary charge were as follows. At about 4.15 a.m. a male resident (PW3) in a flat on the 15th floor of the building in question got out of bed to go to the lavatory. Hearing noises from an upper floor he looked out of a back window and saw a figure in dark clothes on a drain pipe between the 15th and 16th floors of the building. He telephoned the police. After doing that he looked out of the window again and saw the figure on a pipe between the 17th and 18th floors.

5. The police evidently responded to PW3's telephone call by going to the building and checking the flats in the relevant area. The sequel to this action was that a woman (PW4) sleeping on her own in a flat on the 17th floor was wakened at about 4.30 a.m. by the sound of the police ringing the main door bell. She had retired to bed at about 11 p.m. having locked all doors and windows except the kitchen window. When she opened her bedroom door to answer the bell the lights were off. She bumped into the applicant. Her evidence was that he had a stocking covering his face and held a chopper which belonged to the flat.

6. PW4's evidence was that she was shocked but the applicant told her to be quiet. He did not hurt her, but she could not go to open the door. Although the bell rang for about one hour PW4 did not answer. During this interval the applicant discarded his dirty clothes, putting on a pair of PW4's trousers.  According to her evidence he took off his mask and laid aside the chopper. When it became clear that the door would have to be opened the applicant suggested to PW4 that she should tell the police that he was her friend.

7. Eventually the door was opened and the police were admitted to the flat. The lights were then switched on. The police checked the identity cards of the applicant and PW4 who made no complaint to the police. Today the applicant has emphasised this failure to complain to thepolice on the part of PW4. He asked rhetorically if he could be guilty in such circumstances. After the police had gone the applicant refused to leave. Between half an hour and one hour later a party of plain clothes police arrived at the flat. PW4 and the applicant were segregated and interviewed. The applicant told the police that he had forgotten the key of his own premises and had stayed in the flat of PW4 who was his friend. He was arrested and, when cautioned, denied that he had committed burglary. It was never suggested to PW4 when she was cross-examined at considerable length that she was a friend of PW4 or that she had ever met him before his intrusion into the flat.

8. The Judge found that the applicant had entered the flat occupied by PW4 by the open kitchen window after scaling the outside drain pipes, that he had been disturbed in the flat by PW4 when she woke to answer the front door bell and that PW4 and the applicant had not previously been acquainted. He inferred from these primary facts that the applicant, having seen the open kitchen window, had climbed up the pipes on the walls to get into the flat with the intention of committing theft therein but that he had been disturbed before he could steal and escape. He therefore convicted the applicant of burglary.

9. In the absence of any explanation from the applicant it is difficult to comprehend how the judge could have come to any other conclusion in view of the time and means of access selected by the applicant for his entry to the home of a total stranger.

10. However, according to his notice of appeal filed with his application, the applicant now seeks leave to appeal on the ground (which was never advanced as his defence in evidence from him or any other witness) that he had been forced to seek asylum in the flat of PW4 to avoid being chopped to death by loan sharks to whom he owed money. He states in his notice that he did not take a knifeor any burglary equipment with him, nor did he cover his head or hold any Knife or threaten PW4. He claims to nave sincerely asked her for asylum and won her understanding and that she had told the police he was her friend. He claims in his notice that the report to the police by others  (presumably PW3) was a misunderstanding. He also complains that the judge was biased against him and partial to the police. As I have already indicated earlier, he asks this court to consider how he could be a thief when the alleged victim did not report him to the police when they came.

11. On the evidence before the judge at the trial this conviction is wholly unassailable. Having been convicted on overwhelming circumstantial evidence the applicant, who told the police he was the friend of PW4 but elected not to give evidence at his trial, is now seeking, through his notice of application for leave to appeal, to advance another explanation (for what such a manifestly fanciful explanation is worth) for his conduct which he could have given when represented at his trial but railed to do. It is now too late. The applicant has had a fair trial and was properly convicted.

12. The application is accordingly refused.

Representation:

Applicant in person

T.H. Casewell (Crown Prosecutor) for Crown