HKSAR v. Chan Ka Man and Another

CACC000463/1999

CACC 463/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 463 OF 1999

(ON APPEAL FROM DCCC 577 OF 1999)

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Coram: Hon Stuart-Moore Ag CJHC, Mayo VP and Wong JA

Date of Hearing: 9 February 2000

Date of Judgment: 9 February 2000

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court) :

1. On 25 August 1999, the first Applicant (D1 at trial) was convicted in the District Court of burglary with intent, following a trial before Judge Chua. He now seeks leave to appeal against conviction. The second Applicant (D2 at trial) earlier in these proceedings abandoned a similar application and we have accordingly dismissed it.

2. The facts were very straightforward. Police received a call for assistance at about 3 a.m. on 19 May 1999 from the caretaker of a building where the burglary had taken place a few minutes earlier. PW4 was on foot patrol nearby and was the first officer at the scene. When he arrived, a man came out of the burgled premises, about 12 feet in front of him. He chased the burglar for about 500 yards until he caught him. This was D2, who had remained in the officer's sight throughout. The chase had lasted just over a minute. The streets, as might be expected at that time of the night, were practically deserted and there could not have been a clearer case of a man being caught red-handed in the commission of his offence.

3. D1 was chased in a different direction by PW3 who had arrived in a police vehicle in answer to the call for assistance. Having been chased and caught, D1 immediately admitted his involvement in the burglary.

4. He provided no grounds of appeal in his written notice. However, today, he has put forward a number of matters. These include an allegation that he was assaulted and treated badly by the police officers who recorded his alleged confession. This was an issue which was dealt with at trial, where evidence was called on behalf of the prosecution and by the defence. D1 himself was called to give evidence.

5. The Judge, in her very clear Reasons for Verdict when she rejected D1's account, said that D1 was seen by a doctor because of his complaint of fever. The doctor confirmed that D1 was suffering from a common cold. At no stage was the doctor consulted about the injuries which D1 alleged during the voire dire had been caused to him.

6. D1 made several other complaints about the record made by the police officer in his notebook after the arrest. None of these have any foundation. In particular, D1 pointed out that the record itself is a very short one and he complained that some of the time which was taken up making the post-record was time during which he was being subjected to force. We can see no substance in this whatsoever in the light of the Judge's findings.

7. D1 also made a belated attack on the competence of his trial counsel who, he suggested, did not carry out his instructions. At one stage, he said that his counsel had made no closing speech. We pointed out to D1 that the trial record showed that a closing speech had been made, to which he replied that he had not been able to understand what his counsel was saying because he was speaking in English.

8. D1 complained also that the Judge only mentioned the "superficial evidence" without going into other details. This was, of course, an extremely simple case. He said that the Judge never mentioned the benefit of the doubt, but the Judge found no doubt in the prosecution's case and said as much in her Reasons for Verdict. D1 alleged that the Judge had only believed the officers. However, on the general issue, D1 chose not to give evidence.

9. The plain fact of the matter is that there was an overwhelming case against D1. The application is without the slightest merit and we dismiss it. We shall order that three months of the time he has spent in custody shall not count towards his sentence.

Representation:

Miss Mary Sin, SADPP of the Department of Justice for the Respondent.

1st Applicant/D1 in person.

Mr Eric Kwok, instructed by Messrs William Sin & So, for the 2nd Applicant/D2