HKSAR v. Tse Man Kei and Another

CACC 132/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 132 OF 2006

(On Appeal From District Court Criminal Case No. 1014 of 2005)

______________________

BETWEEN

Before : Hon Tang VP, Cheung JA and Beeson J in Court

Date of Hearing : 18 October 2007

Date of Judgment : 18 October 2007

Date of Reasons for Judgment : 30 October 2007

___________________________

REASONS FOR JUDGMENT

___________________________

Hon Cheung JA (giving the Reasons for Judgment of the Court) :

1.On 18 October 2007 at the conclusion of the hearing we dismissed the 1 st and 3 rd defendants’ application for leave to appeal against conviction.  These are our reasons.

The conviction

2.The 1 st and 3 rd defendants together with the 2 nd and 4 th defendants were convicted of the charge of attempted burglary by Deputy District Judge Mackintosh (as he then was).  The 1 st and 3 rd defendants applied for leave to appeal against conviction.  A single judge of this Court had previously refused their application.  For ease of reference I will refer them as D1 and D3.  The other defendants at the trial will be described as D2 and D4 respectively.

Facts

The Flat

3.The facts revealed that on 7 March 2005, PW1, the occupier of Flat A, 17 th Floor (‘the Flat’) of Yuet Fat Mansion (‘the Mansion’) at No. 9, Kau Hui Chik Street, Tai Po left the Flat together with her son at about 2:30 p.m.  When she returned at 3:10 p.m. she found that the gate to the Flat, which was in good order when she left earlier, was damaged.  There were signs that an attempt had been made to prise the gate away from the wall causing damage to the gate itself and to the tiles around it.  The Police were called.

The observation

4.Earlier on the same afternoon a group of police officers were in Chui Lok Street which was near the Mansion.  PW3, namely Police Sergeant 22398, who was with this group of officers described the events that he had observed.  At 1:45 p.m. a private car was parked along the roadside of Chui Lok Street.  D2 alighted from the rear of the car and walked towards a shopping centre.  Five minutes later D4 got out from the driver’s seat but stayed in the vicinity of the vehicle.  D3 then came up to D4 from somewhere and talked to him.  They then walked off to a lane nearby.  D2 had in the meantime returned to the car.  D1 moved from the front passenger seat to the driver’s seat.  He then drove the vehicle and stopped opposite the Mansion.  The car was followed by the Police. 

5.Upon arrival D1 alighted from the driver’s seat and went to a shop.  He then went back to the rear of the car.  D2 got into the driver’s seat where he stayed until he was later arrested by the Police.  D1 made another brief visit to the shop and returned to the car.  D3 and D4 who had last been seen walking away before the car moved off came to the scene and entered the Mansion.  D4 later came out from the Mansion and talked to the persons in the car before walking towards a shopping mall.  D1 alighted from the car again.  This time he had a black rucksack in his possession.  He went into the Mansion.  The time was around 2:30 p.m.  At 2:40 p.m. D3 left the Mansion and went to the shopping mall where D4 had previously gone. 

6.At 2:53 p.m. D3 and D4 came back together and went once more into the Mansion.  At 3:10 p.m.D1 left the Mansion with his rucksack.  He was closely followed by D3 and D4.  They walked towards the car where D2 was still in the driver’s seat.  At that point the Police approached them and arrested all the defendants.  Before the defendants were arrested the Police had received information that the gate at the Flat had been prised. 

The search

7.The rucksack carried by D1 was searched and the following articles were found:

(1)         two crowbars,

(2)         a heavy duty 15-inch screwdriver,

(3)         a rubber headed hammer and

(4)         four gloves. 

8.D3 was found in possession of a small electrical screwdriver. 

Forensic evidence

9.Forensic evidence showed that there were prising marks resembling those caused by a crowbar at various points on the gate which had been bent.  A cast was made of one of the marks.  The cast was found to be consistent in width with the flat tip of the seized crowbar.  There was also blue paint on the gate which did not come from the gate itself.  The paint agreed in chemical composition and colour with the paint on the seized crowbars. 

Telephone contact

10.During the period of observation there were a number of telephone calls from D4’s mobile phone to other defendants.

Location

11.None of the defendants lived in the Tai Po area.  There was no evidence that they had any other connection with the Mansion. 

The defence

12.The defendants did not give evidence or call any witnesses.

Identification

13.The first ground of appeal was on the identity of the defendants.  It was argued on behalf of D1 and D3 that, the defendants were not properly and individually identified as the persons who had been observed by PW3.  PW3 described the four defendants by the clothes they wore on that day  :

(1) The first male to leave the car from the rear was wearing a brown and green jacket and blue jeans.

(2) The second male to leave the car from the driver’s seat was wearing a white jacket, beige colour trousers. 

(3) The third male that approached the car was wearing a blue suit.

(4) The fourth male sitting in the front passenger seat was wearing a brown jacket and blue jeans. 

14.The judge found that the first male was D2, the second male was D4, the third male was D3 and the fourth male was D1. 

15.According to the Admitted Facts the defendants were wearing the following clothing at the time of their arrest :  

D1 : beige and brown overcoat and blue jeans,

D2 : light green, long-sleeved jacket and blue jeans,

D3 : dark blue overcoat and dark blue trousers,

D4 : white long-sleeved jacket with grey and dark pattern and light brown jeans. 

16.It was submitted that as PW3 did not attend any identification parade of the defendants and as he did not identify the defendants in his testimony by marrying up the defendants with the numbers given according to the description of the persons observed from their clothing, there was a lacuna in the prosecution’s case in respect of identification which could not be simply resolved by relying upon the items of clothing that were seized from the defendants. 

Our view

17.We do not find that there was substance in this ground.  The Judge stated in his Reasons for Verdict that it was not expressly challenged by the defence that the four persons identified by PW3 were the defendants.  This issue was hardly referred to until the closing speeches.  Although the accuracy of the observation of PW3 was challenged in cross examination, this was denied by PW3.  The Judge must be the best person to assess the credibility of PW3 having the advantage of observing him in Court.

18.The description of the clothing wore by the four men and the clothing of the four defendants as described in the Admitted Facts were not so drastically different as would cast a reasonable doubt on the correctness of the identification of the defendants. 

19.The Judge stated that PW3 at the end of his account of events, described three of the males namely, Male No. 2, 3 and 4 leaving the Mansion.  He pointed them out to PW4 who was a colleague of the Regional Crime Unit and they were then intercepted and arrested.  PW3 also pointed out Male No. 1 in the car who was then also intercepted and arrested.  All four persons were arrested at the scene.  PW3 expressly stated that the arrested persons were those he had observed earlier.  PW4 and the arresting officers were also called to testify as to the arrest of defendants.  The clothing wore by each defendant was seized.  They were shown to and identified by PW3 and by the arresting officers. 

20.The Judge held that by reference to the exhibit numbers it was clear beyond question who was wearing which item of clothing.  The exact terminology as to the colours of the clothing, about which complaint was made, was a subjective judgment and was irrelevant in the circumstances.  We agreed with the Judge.

21.In any event, there could not be any doubt on the identity of D1 who was carrying a rucksack when he entered and left the Mansion.  Likewise for D3 he was, unlike the other defendants, not in the car but only joined D4 afterwards.  There could not be any reasonable doubt on the accuracy of the identification.

Inference to be drawn

Forensic evidence

22.The second ground relied upon by D1 and D3 was that the Judge was wrong to draw the inference that they were engaged in the attempted burglary of the Flat.  It was first submitted that if D1 and D3 had committed the offence it would have been expected that the forensic experts would have also found the following evidence, or would have conducted tests to find such evidence :

1) PW10 (Dr. Lee Wing Man) testified that if the paint had come from the crowbars they would have paint chipped off them.  However, he was unable to match the paint to a place on the crowbar where it had been chipped off.

2) A tool will leave a unique striation upon a surface.  The marks left on the metal door frame were compared to the crowbars and could not be matched.

3) No examination was conducted to determine whether there was any metal from the door frame deposited on the crowbars.

4) Despite seizing clothing and gloves with the expectation of contact evidence no contact evidence was looked for.

5) A grey rubbery material foreign to the premises was found on the outside of the door frame.  It was not found in any contact examination with the rucksack or tools.

23.I t is clear that the Judge did not rely on forensic evidence to connect the defendants with the offence.  This is what he said :

‘34.           It is correctly pointed out that the scientists do not link the seized tools exclusively to the gate.  They speak in terms of consistency as to the marks left and a match in colour and chemical composition as to the paint, but they cannot go further than that.’ 

24.The Judge was also acutely aware that there was no direct evidence of the contact between any of the defendants and the gate.  There were no fingerprints and no test was conducted to see if the defendants had been holding metals such as crowbars.  The Judge stated that he did not speculate as to what evidence might or might not have been revealed, but he noted the presence of gloves which would mask fingerprints. 

Entry to the Mansion

25.It was further submitted that the Mansion consisted of 72 units, namely three units on each of the 24 floors.  The security guard to the Mansion had given evidence that if a stranger entered the building he had to record his particulars.  The particulars of the defendants were not recorded, nor were they seen using the code number to enter the mansion.  There was no enquiry made to determine whether the defendants were known to any of the residents in the Mansion or had visited any premises in the Mansion.  There was no evidence as to whether any other persons had entered or left the Mansion during the time in question. 

26.This point was in fact dealt with by the Judge in his Reasons for Verdict.  He stated that the security guard was a relief worker whose evidence was that he did not know more than half the occupants of the Mansion.  He would not know whether persons entering the building were strangers or not.  In our view, and we agreed with the Judge, it was not important as to how the defendants gained entrance to the Mansion because it was not disputed that D1, D3 and D4 had gone into the Mansion and that D3 and D4 had entered it more than once. 

Circumstantial evidence

27.The Judge was fully aware that the case against the defendants was based entirely on the circumstantial evidence.  This is what he said :

‘Circumstantial evidence must be taken as whole rather than in compartments to determine its weight and the proper conclusions to be drawn from it.  It needs to be examined with care to ensure that it has genuine weight and is not speculative before it can be relied upon against the defendants.  It is necessary to look to see whether any of the circumstances may undermine the prosecution case rather than strengthen it.  I have considered the whole of the evidence in this light.

………

I am very conscious that the court must exclude all other possibilities and must avoid a leap in the dark to any particular conclusion.  But I am equally sure that it would be necessary to close one’s eyes to the obvious to come to any other conclusion.’

The finding

28.The Judge made the following finding :

1) For at least 15 minutes the defendants were loitering in the vicinity of the Mansion, with no legitimate purpose, before the first entry of D3 and D4 into the Mansion.

2) The defendants were acting in concert : there was a common design behind their presence in the vicinity of the Mansion and in the manner in which they behaved outside the Mansion and in the activities of D1, D3 and D4 inside the Mansion. 

3) When D3 and D4 entered the Mansion for the first time and stayed there for 25 minutes they had no legitimate business to be there other than to conduct a surveillance and to locate a suitable target for burglary. 

4) D1 obtained the necessary information when D4 returned to the car and communicated with D1 and D2 at the car. 

5) When D1 went into the Mansion at about 2:30 p.m. with the rucksack he was in possession of the crowbars, the large screwdriver, the hammer and the gloves.  There was no legitimate purpose behind D1’s removal of those items from the car and in order to take them into the Mansion.  D1 was carrying these tools for the purpose of gaining entry to a flat in the Mansion.

6) At about the same time the gate of the Flat was attacked using implements similar to those in D1’s possession.  The presence of the tools at the same time as the attack on the gate cannot in all the circumstances have been mere coincidence. 

7) The return of the residents of the Flat at about 3:10 p.m. and the prompt departure of the three defendants were also not a coincidence.  The three men had been disturbed in their enterprise and were leaving the scene with the attack on the premises incomplete.  D2 who was waiting in the car outside was also involved in the joint enterprise.

8) The evidence led to the solid and single inference that the three men in the Mansion were jointly responsible for the attack on the gate of the Flat.  Such inference was overwhelming. 

Our view

29.In our view the Judge was clearly entitled to draw the inference that the defendants were guilty of the offence of attempted burglary at the Flat.  The evidence showed that

(1) The defendants were obviously acting in concert.

(2) They entered into and departed from the Mansion at about the same time when the occupiers from the Flat departed and returned to the Flat.

(3) The gate was damaged at about the same time when D1 entered the Mansion with tools which were capable of forcing entry into the Flat.

(4) It had not been suggested that D1 and D3 entered the Mansion for some other legitimate purpose.

30.This is a case where the Judge could draw the necessary inference of guilt against D1 and D3.  We agree with the Judge that while it could not be said how or why the Flat was selected, whether PW1 was seen to leave or whether it was targeted for some other purpose, what was clear was that the attack on the gate was done in an attempt to gain entry as trespassers with the intention of stealing property inside.  This could only be the only reasonable and irresistible inference to be drawn from the circumstances of the case.

31.In our view the verdict was correct and accordingly the application was dismissed.

Mr. Simon Tam, Ag SADPP of Department of Justice, for the Respondent

Mr. Trevor Beel, instructed by Messrs Ivan Tang & Co., for the 1 st and 2 nd Applicants