HKSAR v. Chan, King Fan

HCMA 469/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 469 OF 2006

(ON APPEAL FROM KCCC 7836/2006)

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BETWEEN

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Before: Deputy High Court Judge Wright in Court

Date of Hearing: 8 August 2006

Date of Judgment: 8 August 2006

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J U D G M E N T

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1.The Appellant appeals his conviction, after trial, on a single charge of the going equipped for stealing as well as the sentence of 18 months imprisonment imposed thereafter.

2.I have twice adjourned this matter to obtain a transcript of all the evidence, which I have now had the benefit of reading.

3.The prosecution case is that the Appellant was seen, in a rear alley, a little after one o’clock in the morning, climbing a ladder which led to both commercial and residential premises.  He was observed to be wearing a glove on one hand and holding a screwdriver in the other.  He was told to descend by the police officers who observed him.  His pockets and a rucksack which he was carrying were searched and various items, suitable for use in connection with stealing or housebreaking, were found to be in his possession.  He remained silent when asked what the items were for and thereafter when he was arrested and cautioned.

4.The Appellant’s defence at trial was that he had been in the rear alley to urinate and also to collect used plastic plates for the purpose of picking up dog droppings.  This was the evidence that he gave on his own behalf.  As to the tools, he said that he had purchased them that evening for use at his home.

5.He went on to explain that at 5 p.m. on the previous evening he had left his home in Ma On Shan and then gone to Ap Liu Street.  Thereafter he spent several hours playing video games in Mongkok: he went into a park where he remained, playing with dogs, until approximately 1 a.m..  Today he says he went to a bar for drinks.  He then went to the rear lane to pick up the discarded trays and to urinate.

6.When asked at trial why he was wearing only one glove he said that it was a cold night and that he "must have lost the other glove when he took them out of his rucksack in the park".  Despite the claim that it was a cold night, also in the rucksack were found a jersey and a jacket.  Today he says that he had discarded one glove because it had been damaged by one of the dogs with which he had been playing.

7.There was an allegation that the police assaulted him in the rear alley.  A medical examination conducted almost 48 hours later showed that he had tenderness and abrasion at the right face.  The allegation of assault was denied by the police officer when he gave evidence:  he said he had noticed what he described as “torn pimples” on the Appellant’s face.  It is to be noted that the Appellant demonstrated at trial that it was the left side of his face which was injured:  the medical report relates an abrasion to the right side.  The magistrate obviously did not believe the Appellant's assertion notwithstanding the medical report and accepted the police officer’s observation.

8.The issue which faced the magistrate was a straightforward question of credibility.  He saw and heard the witnesses.  He accepted the evidence of the prosecution witnesses.  He rejected that of the Appellant: there were ample reasons for him to do so amongst them being the issue of the presence of the jersey and jacket in the rucksack despite it being a cold enough night to necessitate the wearing of gloves; contradictions in cross-examination as to the presence of handtools in the Appellant’s home prior to the date of the offence, it being his evidence that the tools found on him had been purchased by him that night; contradictions in cross-examination as to his intended conduct at the time he left his home in the early evening.  The Magistrate was entitled to follow this course and correct in doing so.

9.Insofar as the appeal against sentence is concerned, the magistrate had the benefit of a background report concerning the Appellant.  The magistrate indicated that he took the view that the Appellant had equipped himself and set out deliberately to commit burglary late at night.  He was unable to say whether the Appellant intended to break into domestic or commercial premises as he was stopped whilst ascending a ladder which led to both types of premises.

10.On the facts of this case the magistrate was fully entitled to come to that conclusion.  On the basis of that finding the sentence, whilst robust for a person of the Appellant’s age with two previous, unrelated, convictions, is appropriate.

11.The appeal against both conviction and sentence is dismissed.

Mr Harish Melwaney, SGC of Department of Justice, for the Respondent

Applicant in person