HKSAR v. Gao Jian

CACC 285/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 285 OF 2005

(ON APPEAL FROM DCCC 219 OF 2005)

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BETWEEN

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Before: The Hon. Stuart-Moore V.P., V. Bokhary and Tong JJ

Date of Hearing: 8 November 2005

Date of Judgment: 8 November 2005

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J U D G M E N T

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V Bokhary J (giving judgment of the Court):

1.This Appellant, a man in his mid-30s, was convicted after trial before Deputy Judge Browne in the District Court on a charge of burglary and sentenced to 20 months’ imprisonment.  Within time he took out an application for leave to appeal against conviction.  Later on he added to that an application for leave to appeal against sentence out of time.  Both applications were heard by Yuen JA sitting as a single judge of this Court.  She granted the Appellant leave to appeal against conviction.  As to his application for leave to appeal against sentence out of time, she said that it can be dealt with, when he has formulated his grounds, by the court hearing the appeal against conviction.  So we now have before us his appeal against conviction and his application for leave to appeal against sentence out of time.

2.The charge was particularised as follows: that the Appellant, on 31 January 2005, having entered as a trespasser part of a building known as Sino Construction Site, Lot No. 11158 along Hoi Toi Road in Tai Kok Tsui, stole therein an electric drill, an electric saw and an electric grinding machine.

3.Two police officers gave evidence to the following effect.  At 6:30 that morning they were on patrol in plainclothes inside that construction site.  They saw the Appellant picking up those tools from the ground and placing them on the top of a low internal wall inside the construction site.  He made no reply when they asked him what he was doing there.  When they checked his documents, they found that he was a two-way permit holder and had entered Hong Kong on 29 January.  He later told them that he did not know who the tools belonged to but thought that they were for the purpose of construction.

4.The Appellant gave evidence which conflicted with that of the police officers and was to the following effect.  Two of his friends worked at the construction site.  They were living in a makeshift shelter there.  Having finished work on the Saturday afternoon, they had not returned by the time that police officers found him there on the Monday morning. The tools were under the bed on which he was resting in the makeshift shelter.

5.Upon a proper appreciation of the criminal burden and standard of proof, the Judge accepted the police officers’ evidence and rejected the Appellant’s evidence.  The Judge felt sure, on the police officers’ evidence, that the Appellant had entered the construction site as a trespasser and had stolen therein the tools, thus committing burglary as charged.

6.There is nothing in the circumstances or in how the Judge went about his task to justify disturbing his acceptance of the police officers’ evidence and rejection of the Appellant’s evidence.  That leaves the issue on which Yuen JA gave the Appellant leave to appeal against conviction.  Was the Judge entitled to take the view that the only reasonable inference to be drawn from what the police officers observed is that the Appellant had stolen the tools?  Or, given that he was not seen removing them from the construction site, was it no more than suspicion that he had stolen them and speculation as to what he might have gone on to do if he had not been interrupted by the police officers?

7.Having given the matter careful consideration, we have come to this conclusion.  The evidence reveals that the Appellant did much more than show idle curiosity in the tools as an innocent person might well have done.  He picked them up from the ground and placed them on the top of a low wall.  That bears the clear appearance of arranging them, which is not at all what one would expect of someone having no more than idle curiosity in them.  In all the circumstances, we are of the view that it was properly open to the Judge to take the view that the only reasonable inference is that the Appellant had stolen the tools even though the police officers intervened before he could remove them from the construction site.  Accordingly the appeal is dismissed.

8.That leaves the matter of sentence.  In all the circumstances, we are of the view that the sentence passed on the Appellant is neither wrong in principle nor manifestly excessive.  Accordingly leave to appeal against sentence out of time is refused.

Appellant in Person

Ms Alice Chan, SGC of Department of Justice, for the Respondent