HKSAR v. Li Yue

CACC 267/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 267 OF 2004

(ON APPEAL FROM DCCC No. 409 of 2003)

____________

BETWEEN

____________

Before:  Hon Ma CJHC, Hon Beeson J & Hon Lugar-Mawson J in Court

Date of hearing: 24 March 2005

Date of judgment: 24 March 2005

______________

J U D G M E N T

______________

Lugar-Mawson J. (giving the judgment of the Court):

Background

1.On 24 November 2003, Li Yue, the Applicant was convicted after trial before His Honour Judge Whaley in the District Court of a charge of burglary (1^st charge) and a charge of assault with intent to resist lawful apprehension (2^nd charge).  He was acquitted of a charge of theft (3^rd charge).  The Judge sentenced him to 3 years’ imprisonment for the burglary and 1 year’s imprisonment for the assault with intent to resist lawful apprehension charge, and ordered that he serve 6 months of that sentence consecutively to the first sentence.  The Applicant’s total sentence is therefore one of 3½ years’ imprisonment.

2.The Applicant seeks leave to appeal against his conviction out of time.  We have granted him leave to do so.

Prosecution case

3.The prosecution case was that on 5 March 2003, at about 4:15 a.m., PW1 found a male intruder in his flat on the 2^nd floor of Scenic Rise in Caine Road, Hong Kong Island.  On being surprised by PW1, the intruder jumped on him.  In the ensuing struggle the intruder picked up a 9-inch long toy Japanese sword and hit PW1 with it.  Although this caused quite extensive bruising, PW1 suffered no serious injuries.  PW1’s wife (PW2) came to her husband’s aid and hit the intruder with a chair and he fled from the flat.  PW1 said he left through the front door.  PW1 found that the toilet window of the flat was open and that two mobile phones and a lady’s watch, which had been placed on a table in the flat, were missing.

4.PW2 gave evidence confirming her husband’s evidence.

5.On the next day, at about 1 a.m., PW3, a police officer, who was patrolling in the area, stopped the Applicant for an identity check.  The Applicant produced a Mainland passport in the name of Li Yue.  On being questioned, the Applicant said that he had recently sneaked into Hong Kong and the passport was false, and his real name was Wong Tak Biu.  On being asked what he had done the day before, the Applicant replied that he had been on a “hill” and from that hill had “climbed into a room”.  He continued:

“	From that flyover I climbed into the place on the second floor, stole the telephones and then there was the fight with a woman and then fled out of the window to run away with the friend downstairs.”

6.He was arrested and said after caution:

“	I have given those two telephones to another friend of mine.”

7.PW3 post-recorded these replies at 2:50 a.m. that same morning at Central Police Station and the Applicant (who speaks only Putonghua) with the aid of an interpreter, signed the post record in the name of Wong Tak Biu.

8.He was further questioned after caution and said, among other things, that:

“

I had climbed into the house or apartment and took the two telephones in the living room.  The house was adjacent to the flyover.  Well, I found that its window was not closed and therefore I climbed into it.  Having entered there, I was discovered by a woman.  Then I knocked her down and took two telephones and a watch from the top of the table in the living room.  Then, I entered the room where I took a woollen sweater and a handkerchief from the chair.  After that, I immediately climbed out of the window and gave a grey-coloured telephone and a watch to Chiang Wan-lung before fleeing downhill.”

9.He also said that that he had climbed into the flat alone, while Chiang kept watch on the flyover and that the watch he gave to Chiang was a green coloured lady’s watch.

10.In the afternoon of 6 March 2003, the Applicant took part in two cautioned video recorded interviews.  In the first one he said that his real name was Li Yue, that the passport was his and he had used it to gain lawful entry into Hong Kong on 3 March 2003.  Here, as his ATM card had been swallowed by an ATM machine, he had run out of money and had to sleep rough in public parks.  He also appears to have said in that first interview that he had taken a third mobile phone, bearing the name ‘Nokia’, from the flat.  

11.Towards the end of the first interview the Applicant offered to lead the police to the scene of the crime.  There he pointed out to them the footbridge on which he had walked, the building in which PW1 and PW2’s flat was, and he demonstrated how he had scaled the drainpipe to the flat in order to enter it. 

12.In the second video recorded interview, conducted after the Applicant and the police had returned to Central Police Station, the Applicant confirmed the accuracy of everything he had already told the police.

13.As the police did not ask the Applicant to take part in an identity parade, there was no evidence from PW1 and PW2 identifying the Applicant as the man who had burgled their flat.

Defence case

14.There was a voir dire, in it the Applicant did not challenge the voluntary nature of his answers to the police officer at the time of arrest, or his subsequent confirmation of the accuracy of the post-recording of what he had said at that time.  He did, however, challenge the admissibility of the two video recorded interviews, claiming that he was tired and sleepy when he took part in them.  He also claimed that at the time his mind was confused and unclear, and that he cried while being interviewed, and that he felt he had no alternative but to make an admission.  He made no allegations of any improper conduct by the police.

15.The Applicant did not give evidence or call witnesses in the trial proper.

The judge’s findings

16.The Judge ruled both video recorded interviews admissible in evidence against the Applicant.  He found all the prosecution witnesses to be truthful, and relying on their evidence, together with the Applicant’s admissions (both on arrest and in the video recorded interviews) found him guilty of the first two charges.  The Judge however acquitted the Applicant of the 3^rd charge of stealing a mobile phone, this was because the only evidence that the Applicant had stolen a third mobile phone came from the Applicant himself in the course of his first video recorded interview, and neither PW1 or PW2 had said that they had lost three mobile phones in the course of the burglary.  They spoke of losing only two.  It is important to note that the Particulars of Charge of the 3^rd charge do not specify who the owner of the telephone was; it is described as being “… the property of another.” 

Grounds of appeal

17.Mr. Robert Pang, counsel for the Applicant, raises three grounds of appeal.  First, it is said that the Judge erred in according full weight to all of the Applicant’s admissions, in that he ignored the fact that the Applicant had given the police varying accounts of what he had done, and that in many respects those accounts differed from PW1 and PW2’s evidence.

18.Secondly, it is said that the Judge’s acquittal of the Applicant on the 3^rd charge on the basis that he could not rely on the Applicant’s admission that he had stolen a third mobile phone in the course of the burglary, was inconsistent with PW1 and PW2’s evidence that they had only lost two mobile phones, indicates that the Judge failed to consider whether that inconsistency affected the weight to be placed on the rest of the Applicant’s admissions.

19.Thirdly, it is said that there was no, or insufficient, evidence to show that the Applicant had assaulted PW1. PW1 had said that his assailant had stabbed him with the toy sword.  The Applicant had told the police that he had assaulted a woman with one punch.

Discussion

20.We find nothing in these grounds of appeal.  Although it is true that the Judge said that all the statements made by the Applicant should be “accorded full weight”, we take it that in using that expression he was not meaning that he accepted the truth of everything the Applicant had told the police, including those parts where his accounts vary from each other, only that he was giving full weight to their incriminating parts.   This approach accords with the law.  There can be no doubt that the Applicant’s admissions fell into that category of out-of-court statements known by the prosaic term ‘mixed statements’, containing both inculpatory admissions and exculpatory claims.  Where a defendant has not given evidence backing up his claims, the proper approach is set out in the well-known case of R v. Duncan [1981] 73 Cr App R 359, where Lord Lane CJ said this, at page 365:

“

Where a ‘mixed’ statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method must likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies.  It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state.  Equally, where appropriate, as it usually will be, the judge may, and should point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight.”

21.Here it must be remembered that PW1’s evidence that his flat had been burgled on the night before the Applicant was arrested was unchallenged, as was his evidence that the male burglar stole two mobile phones and a lady’s watch from the flat.  The fact that, when intercepted by police in the early hours of the next day, the Applicant volunteered the information that he had burgled a flat in the same area the previous day, and stolen two mobile phones and a lady’s watch from it, was also unchallenged, as was the evidence of him leading the police to the scene and indicating to them there how he had broken into the flat.  With such ample evidence, it is difficult to see how the Judge could have failed to have done anything other than conclude that the Applicant was the man who had burgled PW1 and PW2 ‘s flat.

22.There was no inconsistency in the Judge’s acquittal of the Applicant on the 3^rd charge.  He did this because, apart from the Applicant’s claim that he had stolen a 3^rd mobile phone, there was no other evidence that he had done so.  As we have said PW1 and PW2 were quite clear that only two mobile phones had been taken in the burglary.  The Judge quite obviously, and very fairly, thought he could give no credence to the Applicant’s admission.  Indeed, when we read the short passage in the transcript of the first video recorded interview (it is entries 504 to 515) in which that admission appears, it is by no means clear that the Applicant was referring to a third mobile phone at all.    

23.Similarly, there is no merit in the 3^rd ground of appeal.  PW1’s unchallenged evidence was that the burglar had attacked him with the toy sword.  He spoke of there being only one burglar in his flat.  The Applicant admitted that he was that burglar.  Given that factual matrix, it is hard to see how the Judge could have come to any conclusion other than that it was the Applicant who had assaulted PW1.  The Applicant did not give evidence backing up his claim to the police that he had assaulted a woman with a single punch (at one stage he said he had rendered her unconscious).  And on the main issue - that he had assaulted one of the occupants of the flat, while inside it as a trespasser and in attempt to escape from it - PW1, PW2 and the Applicant were ad idem.  In those circumstances it is not surprising that the Judge accepted PW1’s evidence.

Decision

24.For the reasons given, we find no merit in this application and dismiss it.

Ms Mary Sin, SADPP, for the Respondent

Mr Robert Pang Yiu-hung, instructed by Messrs C S Chan & Co. (DLA), for the Applicant