HKSAR v. Chan Hong Yik

CACC000493/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 493
(Criminal)

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Coram: Hon Nazareth Atg CJHC, Mayo and Stuart Moore JJA in Court

Date of Hearing: 27 January 1999

Date of Judgment: 27 January 1999

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J U D G M E N T

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Nazareth Atg CJHC (giving the judgment of the Court) :

1. On 4 September 1998 the applicant was convicted after trial by His Honour Judge Sweeney in the District Court of two offences. The first was of burglary, the particulars being that on or about 9 May 1998 at Shatin, he entered as a trespasser Stone Hut No. 1, No. 84B, Ma On Shan Upper Village, with intent to steal therein.

2. The other charge was of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully contrary to s.38(1)(b) of the Immigration Ordinance, Cap. 115. The particulars of that were simply that on or about 9 May 1998 he remained without the authority of the Director of Immigration having landed unlawfully.

3. Having been convicted he was sentenced to 21/2 years on the burglary charge and to nine months on the other charge to run consecutively. He now seeks leave to appeal against his conviction on the burglary charge.

4. The facts very briefly are these. Shortly before the day in question, 9 May, the victim, i.e. the occupier of the stone hut, Mr Chung Wah-pak, was hospitalised. Before that he told his neighbour, Mr Cheung Chun-pun, PW2, that he would be hospitalised. On the night in question, 19 May, at about 2 o'clock in the morning, PW2 was woken up by the noise of dogs barking. He went out to the hut of the victim and found that someone was acting suspiciously in the other hut. He summoned the help of another neighbour. They went to the stone hut. PW2 kicked the door open. They entered it. PW2 saw a man holding some objects in his hands. The man dropped the object. He picked up a chair and there was a scuffle. We are not concerned with that. They struggled. The man was overpowered, tied up and the police were called.

5. The other neighbour who gave assistance also gave evidence.

6. The applicant's evidence was that it was a case of mistaken identity and that he was an innocent passerby. He said he sneaked into Hong Kong on the previous night with another man. They took a taxi and alighted in open countryside. At a spot, some hundred metres from the stone hut, the man went on. Suddenly two men appeared brandishing spades and saying something he did not understand. He was hit with a spade, pushed to the ground and detained.

7. The judge had the advantage of seeing the witnesses, hearing the evidence and also the evidence of the applicant. He accepted the evidence of the two prosecution witnesses and disbelieved the story of the applicant. That was not surprising.

8. Nothing the applicant had said to us today leads us to doubt in any way the conclusions and decisions of the judge. There is nothing in the applicant's grounds to which he has not added anything before us. He said in those written grounds that he was just an illegal immigrant, had committed no offences, he did not enter the house of others and had simply been dragged into courtyard by two men unaccountably.

9. We, according, refuse leave to appeal against conviction. The applicant's grounds all of which were included in his written notice of appeal to which, as we have said, he added nothing, are totally devoid of any merit.

10. In those circumstances we disallow three months which will not be taken into account in his sentence. The result is that he will have to serve an additional three months.

Representation:

Mr Jackson Poon, SGC (DPP) for the Respondent

Applicant in person