HKSAR v. Tang Sin Tung

CACC 482/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 482 OF 2004

(ON APPEAL FROM DCCC NO. 344 OF 2004)

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BETWEEN

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Before : Hon Stock JA, Gall J and Lugar-Mawson J in Court

Dates of Hearing : 22July 2005

Date of Judgment : 22 July 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

1.This is an application for leave to appeal against conviction arising from a decision of Judge Mary Yuen in the District Court on 26 October 2004.  The charge was that this applicant on 28 July 2003, together with a man called Chan Tsz-leung, attempted to enter as trespasser a hair salon in Sai Yee Street, Mong Kok.  To this charge, the applicant pleaded not guilty.

2.The hairdresser’s shop was a corner shop fronting Sai Yee Street and a side alley.  The prosecution evidence was that at about 2 a.m. on 28 July 2003, three police officers were on plain clothes patrol, and walked along the alley towards Sai Yee Street, and that by the junction of the alley and the street, this applicant was standing on the pavement of Sai Yee Street in front of the shop, facing Price Edward Road and looking from side to side, with his back towards the alley.  The officers saw Chan squatting in front of the roller shutter of the shop, holding onto the lock of that shutter with one hand and turning a key in the keyhole of the shutter with the other.  When Chan noticed one of the officers, he pulled out the key, stood up, patted the applicant on the shoulder, and the two men walked off in the direction of Prince Edward Road.  The officers stopped the men and this applicant said to one of the officers that he had been walking with a friend and saw his friend squatting down but did not know what he was doing and that he, the applicant, merely wanted to take transportation to go home.

3.From Chan, the police seized an electricity bill with drawings of five keys on its reverse side, plus three bunches of keys.  The police tried to open the lock to the shop with the use of those keys but were unable to do so.  A locksmith expert testified about these keys and his evidence was to the effect that some of the keys were uncharacteristic of normal keys and were “tryout” keys, in other words were of the type used when the proper key was not available.  The keys thus examined were made in a set with identical grooves, but where the thickness and width of the blades had been varied so as to accommodate the different depths of pins inside the cylinder chamber of a lock.

4.An employee of the shop gave evidence and said that neither the applicant nor Chan were known to him.

5.The applicant did not give evidence at his trial, nor did he call any on his own behalf.

6.The trial judge accepted the testimony of the police officers.  She took the view that the evidence irresistibly drew her to the conclusion that Chan was not an authorized entrant to the shop, that when seen by the police officers at 2 a.m. he was trying his luck on the roller shutter lock of the shop, and that that act constituted an attempt to enter the premises.  She concluded as well that the irresistible inference in relation to this applicant was that he was acting in concert with Chan, as evidenced by the circumstances as a whole and in particular by the fact that he was standing next to Chan at 2 a.m. when Chan was trying the lock to the shop, a shop in respect of which neither Chan nor the applicant had any connection; that the applicant was not seen to be walking on as he had suggested, but was self-evidently waiting for Chan; that the applicant was looking from side to side; and that he responded to the pat on the shoulder when the police arrived and walked off with Chan.  Accordingly, she convicted of the applicant of attempted burglary.

7.In support of this application for leave, we have Mr Moorfoot’s written submissions and his address to us today.  It is said by him on behalf of the applicant that there was no or no sufficient evidence that Chan did not have authority to enter the premises.  It seems to us that the circumstances clearly gainsay this.

8.He contends also that the court failed to consider the fact that the applicant had not given any warning of the approach of the police officers and therefore, this conduct, it is said, was inconsistent with the duty of a lookout.  This is a weak point.  It all depends on how things turned out on the night, and on this night if, as seems to be the case, the police officers were already upon the two men by the time any warning could be given, or if Chan had seen the police officers first, there was no call for a warning.  The fact that the applicant walked off, rather than ran away, is of no significance.

9.Then Mr Moorfoot argues that the judge made a misguided comment about two different versions given by the applicant, one to the police at the scene and another through cross-examination.  The suggestion is that the judge wrongly attributed cross-examination to instructions from the applicant.  But there is no meat given to this complaint either by reference to any evidence or to any actual complaint that counsel was indeed departing from his instructions, which would be a breach of his duty.  It has not been demonstrated to us that the judge has erred. 

10.This is, in our judgment, a hopeless application and it is dismissed. 

Mr Barry Moorfoot instructed by Messrs Lam Fung & Co. for the Applicant

Ms Mary Sin, SADPP of the Department of Justice for the Respondent