HKSAR v. Chan Fook Chung

CACC000601/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 601
(Criminal)

-----------------------------

Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A. in Court

Date of hearing: 30 June 1998

Date of delivery of judgment: 30 June 1998

----------------------

J U D G M E N T

----------------------

Mayo, J.A. (giving the judgment of the Court):

1. The Applicant seeks leave to appeal against his five convictions for burglary and one conviction for going equipped for stealing. He was convicted of these six offences after a trial in the District Court before H.H. Judge Kilgour.

2. Three police officers were on patrol at Shek Pui Street, at Kwai Chung in the early hours of the morning of 18th April 1997. They saw three men, one of whom was carrying a bag and a box. Their suspicions were aroused and they approached the men. They then ran away. The officers chased the man holding the bag and the box and he threw the box away during the course of the pursuit. They caught up with the man and subdued him. It transpired that this man was the Applicant. They searched the bag and found that it contained implements suitable for breaking and entering and other articles such as mobile telephones. The police officers then went back to retrieve the box which had been thrown away and found that it contained a crowbar and a pair of pliers.

3. There was also evidence that the five premises which were units within a nearby factory building referred to in charges 1 to 5 had been broken into and various items referred to in the charges were missing. In particular it was possible for the owners of two of the mobile telephones to positively identify their telephones and for the owner of the "ivory made handicraft" in charge 3 to identify the object.

4. Other items were also identified by victims.

5. In addition to this an envelope was found in the premises referred to in the second charge which had a shoe-mark on it which matched exactly the imprint of one of the shoes which had been worn by the Applicant at the time of his arrest.

6. The Applicant gave evidence at his trial. He claimed to have been framed by the police officers.

7. He said that he had gone to the place where he had been arrested to collect his boss's car. He denied that he had had the equipment suitable for breaking and entering or any of the other articles on him when he had been stopped by the police. The Judge gave his reasons for accepting the evidence of the prosecution witnesses and rejecting the Applicant's.

8. In his grounds of appeal the Applicant repeats that he had not been in possession of the bag which the officers testified he had been holding at the time of his arrest. He goes on to refer to some of the banknotes which were found and claims that these were his own and that he had recently obtained them from his bank.

9. He also refers to the fact that no fingerprints had been found at the scene and that there had been irregularities at the trial. Finally he claims that the Judge had been biased. Before us he raises further similar grounds.

10. He said that:

"1. There is no evidence at the time of the incident that he was guilty. No reason had been given for revoking his bail. His counsel had referred to the fact that he had children still studying at school. Also he could put up an additional HK$10,000 security for his bail. This indicated that the Judge had serious bias against him.

2. In court the Judge accepted that the procedure of taking statement had been wrong. In his ruling he doubted whether the evidence was reliable or credible. This is not correct. The Judge said no such thing.

3. After the police had given evidence he said his counsel had asked the court to adopt the alternative procedure. The Judge said he would consider the request and grant a short adjournment. Following this the Judge had convicted him and taken cognizance of the police evidence.

4. As to the banknotes the prosecution had said that the notes were part stolen property. They were not. The serial numbers had been in sequence as he had recently got them from the bank. The matter had been raised at his trial. This of itself would not necessarily take matters any further. The victim may have obtained the notes in a similar way. In this connection two of the notes emanated from his home. There are several possibilities how this could have arisen such as getting the notes back from one of the other culprits.

5. He suggested that if he had had no money at the time of the arrest this was unlikely as the place where he had been arrested was a considerable distance from his home.

6. After his arrest he had complained to the CAPO concerning assaults which had been inflicted upon at the time he made his statement. This would of course have been a matter which would have been considered by the Judge.

7. The police had taken his shoes to examine them in relation to the shoeprints which were found at the scene of one of the burglaries. He claimed that this was contrary to his rights. This is simply not the case. He referred to Magistracy Appeal No. 345 of 1997. This case appeared to be of no assistance to him."

11. All of these matters were considered by the trial Judge. None of them have occasioned us any particular concern.

12. It is however true that the Judge did rule the oral admission to be inadmissible. It appears that the Judge was prepared to give the Applicant the benefit of what he described as a lurking doubt.

13. However in taking all of the evidence as a whole the Judge was satisfied at the appropriate level that the charges had been proved.

14. The convictions are not unsafe or unsatisfactory and this application is dismissed.

Representation:

Ms Polly Wan, S.G.C. (D.P.P.) for Respondent

CHAN Fook-chung, Applicant in person