Ng Yuk Ping v. The Queen

CACC000464/1977

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 464 OF 1977

Coram: Morley-John, J.

Date of Judgment: 3rd June, 1977

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JUDGMENT

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1. The appellant was found guilty of the offence of attempted burglary in that he attempted to enter the bedroom of his landlady and her daughter with intent to inflict grievous bodily harm on the two women. He was sentenced to a term of 12 months' imprisonment. It is against this conviction and sentence that he now appeals.

2. Before the learned magistrate the appellant was also charged in addition to attempted burglary with robbery, theft and assault occasioning actual bodily harm. The robbery charge was withdrawn during the proceedings and the learned magistrate found the appellant not guilty of the offences of theft and assault occasioning actual bodily harm.

3. The appellant's grounds of appeal are as follows:-

The grounds of appeal against sentence were that the sentence was too severe.

4. Therefore there are two main grounds of appeal in this case. Firstly the question of identification and secondly the question of intent.

5. The only evidence of the actual alleged attempted burglary was given by the landlady Mrs. POON Yi-duen. She said that she shared a bedroom in her flat with her daughter and that she got up as usual at 7 a.m. and prepared to go to the bathroom to clean her teeth. That her bedroom door was secured by a bolt and a chain that she drew the bolt and started to open the door when three men tried to rush into her room. That one of the men was the appellant who was a sub-tenant of hers and rented another room in her flat. She said that she managed to push the door shut again immediately and later she said she called out to her daughter to help her. In any event the door was pushed shut against the three men and bolted. Mrs. Poon said almost instantly. Asked how under these circumstances she could see the appellant's face, she said that the door was pushed open approximately one foot and when it was pointed out to her that the chain was on the door Mrs. Poon said that the chain was one foot long. The chain was in fact later produced and turned out to be only six inches long therefore the door could not have been pushed open very far. Also reference to the plan of the flat which was produced shows that if Mrs. Poon had been pushing against the door as she described it would have been virtually impossible to see who was pushing on the other side of the door. Mrs. Poon then said that she shouted out of the window for help and neighbours called the police. The police in fact arrived but could not get into the flat because the front and back doors were locked whereupon Mrs. Poon said that she called out to the appellant who was in his room to open the door for the police. How she knew that the appellant was in his room is not clear. As Counsel for the appellant has commented it would appear rather a strange thing to do to call out to a person who has just tried to break into your room to open the door for the police. Also if the appellant had just failed in his burglary attempt to inflict serious harm on Mrs. Poon and her daughter with two others why should he remain in the flat. Counsel also commented on the fact why should the appellant who was known to Mrs. Poon stand unmasked in a way that he could be clearly seen when apparently he had two colleagues to assist him. Also there was apparently no motive for attempting to inflict grievous bodily harm on Mrs. Poon and her daughter except perhaps in the course of a robbery and if this was the case as the appellant had the keys of the flat why not choose a time when Mrs. Poon and her daughter were out if he wished to steal.

6. Some of Mrs. Poon's evidence made very strange reading. Mrs. Poon agreed that after the present alleged incident none of the locks in her home had been tampered with in any way and she then revealed that she had experienced a similar "robbery" a year previously, under similar circumstances, no locks damaged. She also said "On three occasions they pushed my door" and when she was asked had she experienced yet another similar robbery she said yes and when asked how long ago that robbery took place she said "I did not want to tell but if I am asked usually one robbery once a year". She then said that she was robbed annually and that she was sure that the person who was the tenant at the time of each robbery was involved. She had apparently not reported these previous robberies to the police. (The present sub-tenant, the appellant had been in occupation for just over a month). Counsel for the appellant has commented on this and has suggested that this could all be fantasy on the part of Mrs. Poon.

7. One of the strangest aspects of this case is that Mrs. Poon's daughter who according to her mother's evidence was in the bedroom at the time of this alleged incident was not called to give evidence to support her mother's story or to support the charge that the appellant attempted to enter her bedroom as a trepasser with intent to inflict grievous bodily harm upon her, i.e. the daughter. There is no evidence as to the daughter's age. Mrs. Poon is 51 years of age and the daughter when merely tendered for cross examination gave her occupation as "public relations" so I consider it is a reasonable inference to draw that she is an adult. However as I have said she was not called to give evidence to support the Crown's case. She was merely tendered for cross examination and was not asked anything about the alleged incident in cross-examination. Did this attempted burglary in fact ever take place? The appellant said in evidence he was woken up by people banging on the front door at 8 a.m. (Mrs. Poon said the incident occurred at 7 a.m. Unfortunately nobody asked the police witness what time he arrived at the flat). The appellant said that he heard someone banging on the door that he then heard Mrs. Poon shouting to him to open the door for her which he did. He said he knew nothing and heard nothing of the alleged incident. Mrs. Poon in her evidence had said that the appellant was fully dressed when he and two other men had tried to get into her room. The appellant said that he had got straight out of bed to open the door to the police and that therefore he was wearing pajamas and this evidence was confirmed by the police witness.

8. To me it is a very strange case, one might almost wonder whether Mrs. Poon who seemed to have a deep suspicion of her sub-tenants in the past had not awoken from a nightmare and imagined the whole incident. Why was her daughter not called as a witness for the Crown? Nevertheless under all the circumstances of this case upon the first ground of appeal I find this conviction to be unsafe and unsatisfactory and it cannot stand.

9. As to the second ground of appeal, Counsel for the Crown stated that he found himself handicapped by the sparsity of the learned magistrate's Statement of Findings and the added confusion in his judgment by the learned magistrate saying that there was no evidence of any agreement to assault. I agree with counsel for the appellant that the learned magistrate gave no grounds upon which he based his findings and I am of the opinion that it would have been a great assistance in this case if the learned magistrate had given reasons for his findings.

10. The appeal is allowed accordingly and the appellant is discharged.

Representation:

Mr. David Sparrow, instructed by (Lau, Chan & Co.) for the Appellant

Mr. N. Adams C.C. for Crown/Respondent.