HKSAR v. Tang Yip Man

CACC254/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 254 OF 2007

(ON APPEAL FROM DCCC 263 OF 2007)

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BETWEEN

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Before : Hon Stuart-Moore VP, McMahon and Saw JJ in Court

Date of Hearing : 19 June 2008

Date of Judgment : 19 June 2008

Date of Handing Down Reasons for Judgment : 31 July 2008

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REASONS  FOR  JUDGMENT

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Saw J (giving the reasons for judgment of the Court) :

1.On 19 June 2008 we granted leave to appeal, treated the hearing of the leave application as the hearing of the appeal, quashed the appellant’s conviction of the charge of burglary and set aside the sentence.  We indicated on that occasion that we would hand down our reasons in due course.  These are our reasons.

2.On 17 July 2007 the appellant was convicted after a trial in the District Court before Judge Chua of charge (1) Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, charges (2) and (3) Assault with intent to prevent lawful apprehension, contrary to section 36(c) of the Offences against the Person Ordinance, Cap. 212.  He had also been charged with handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap. 210.  He was acquitted of that charge.

3.On charge (1) he was sentenced to be imprisoned for three years, on charges (2) and (3) he was sentenced to be imprisoned for one month each consecutive to the other and to charge (1).  He sought leave to appeal his conviction on charge (1) only, Mr Lawrence Yip on his behalf not disputing the propriety of the convictions on charges (2) and (3).

4.The particulars of the burglary charge were that :

“ TANG Yip-man on the 22^nd January, 2007, in Hong Kong together with Ng Man-wai having entered as a trespasser a building known as Everwin Mansion, No. 18, Johnston Road, Wanchai, stole therein two finger rings and one pair of earrings.”

5.This was not the original charge he faced at the commencement of the trial.  The charge was amended after the close of the defence case to include the allegation that the appellant had committed the offence “together with Ng Man Wai”.  (The original charge alleged that the defendant acted alone.)

The facts

6.Mr and Mrs Ting (PW1 and PW2) lived at Flat E on the 5^th floor of Everwin Mansion, 18 Johnston Road, Wanchai.  On 22 January 2007 they together with their two sons (PW3 and PW4) returned home at about 7:30 p.m.  As they went to enter their home it became apparent that there had been an intruder there.  The front door was double locked which was not the case when they had left earlier that day.  Inside there were lights turned on and there were signs that the premises had been ransacked.  At or about the same time they became aware of the presence of a male, a stranger to them, walking past Flat F (next door to their flat) in the direction of the lifts.  PW2 suggested to the others that this might be the intruder and the two sons, PW3 and PW4, attempted to detain the male who was apprehended by PW3 and PW4 with the assistance of their father PW1 after a struggle in the course of which each of PW3 and PW4 were injured.  It was the prosecution case that this person was the burglar who was fleeing the scene.

7.The appellant was the person apprehended that evening.  The injuries sustained by PW3 and PW4 in the course of the struggle with the appellant were the basis of charges 2 and 3.

8.An examination of the premises revealed that an intruder had gained entry by bending aluminium bars covering a nearby window.  This in turn allowed the intruder access to a corridor and from there to one of the windows of the premises.

9.Another window in the main bedroom was found to be open and was assumed to be the means by which the intruder had left.

10.The items of jewellery described in the particulars of the 1^st charge were found to be missing and were presumed to have been stolen by the burglar.  Subsequent to being apprehended the appellant told PW2, PW3 and PW4 that he had gone to the building that day looking for a friend.  As to this matter there was an inconsistency in their respective recollections as two of them thought he had said “girlfriend”.  The appellant was subsequently arrested.  He made no admissions.  None of the property stolen from the premises was found in his possession.  Other than his presence there on that occasion the only evidence which could have directly linked him to the burglary was that the police had found a partial shoe print on a backpack on the floor of one of the ransacked bedrooms.  It was an admitted fact that the shoe print could have been made by either of the two white sport shoes that the appellant was wearing when apprehended.  However, this was further qualified by the fact that it could also have made by any other shoe of the same sole pattern.

11.Other than CCTV footage showing the appellant entering the lift lobby of the building at 6:27 p.m. there was no other evidence which linked the appellant to the burglary of the premises.  When apprehended the appellant had with him two shoulder bags, one of the which contained identification documents belonging to one Ng Man Wai (the person named as the co-accused in the amended charges) and an Omega watch which had been taken in the course of a burglary in Wanchai some 11 days earlier.  This was the watch referred to in the 4^th charge of which he was acquitted.  There was evidence also that Ng Man Wai had entered this building at about 6 p.m. on that same day.  He also had a shoulder bag and was wearing white sport shoes.

12.This was the whole of the evidence in the prosecution case.  The judge found a case to answer on all charges.  The appellant elected to give evidence and his evidence was summarised by the judge as follows :

“… in the afternoon of the day in question, he was in Wan Chai, having purchased a lipstick and eye cream for his wife.  Those items were put in a small paper bag he was carrying.  His friend, Ng, called him and asked him to go to the building in question to get some personal items for him.  As he was a close friend, he did not question Ng but went into the building.  He called Ng again and Ng said he was on the 13^th floor.  After getting out of the lift on that floor, he waited for 10 to 15 minutes but neither saw Ng nor was he able to get through to him.  He called one more time and succeeded in finding Ng who told him he was ‘unavailable’ and to wait there for him.

13. After about 10 minutes, Ng called him to say he should go to the 6^th floor, and in the rear staircase near the fire exit door, he was to pick up his jacket and bag.  They should meet later at the 7-Eleven store opposite the building.  He went to the 6^th floor by lift, found Ng’s belongings and picked them up.  He intended to take the lift on that floor but that required him to pass a man who was worshipping at his altar in the corridor.  Not wanting to disturb him, he walked down the left-side stairs to the 5^th floor and was walking to the lifts when all of a sudden two young man, without anything being said, chased after him and grabbed him round the neck.  He was not running but walking at a normal pace but had quickened his pace when he discovered the boys were after him.  It was chaotic.

14. He did not know what it was about.  One of them had grabbed him round the neck, and as he struggled, he might have pushed both of the boys.  He may have used [bad] language.  He could not remember but had told the family he had gone up looking for a friend, not girlfriend.  He had not looked inside Ng’s bag.  He did not know anything about the watch nor had he ever entered Tings’ flat.  However, Ng had bought a pair of sport shoes in an identical model to his own and they wore the same size shoes.” [Emphasis added]

13.Of the appellant’s evidence the judge said this :

“16. I only believe a very small part of the defendant’s testimony.  From the photographs and the evidence, the defendant and his old friend, Ng, seem to share the same taste in accessories.  Not only did they carry the same bag across their shoulder, I accept the defendant’s evidence that Ng had also bought the same pair of sport shoes and was wearing them that day.  I reject the rest of the defendant’s evidence as being far-fetched and entirely made up.” [Emphasis added]

14.In her assessment of the evidence before her the judge said :

“17. From all the evidence before me, I arrive at the only reasonable inference that the defendant and Ng were accomplices in this burglary.  They were careful not to go into the building together nor to leave the lift at the same floor.  After it was decided that Ng, being the thinner of the two, would break into the window in the corridor on the 5^th floor, I infer the defendant acted as a lookout on that floor.  He had taken possession of Ng’s bag and jacket to make ingress into that window easier for Ng.

18. I would not be at all surprised that he had warned Ng when he saw from the corridor that a lift was approaching the 5^th floor.  What he did not expect was the occupiers of the burgled flat were returning home.  With that realisation, he had broken into a run to the lift, and when caught in the arm by PW3, had kicked him before trying to escape apprehension by running down the nearby stairs to the 4^th floor.  I am also satisfied he had deliberately punched PW4 in an attempt to get away.

19. As for the handling charge which concerns the stolen watch, I am giving the defendant the benefit of the doubt on the 4^th charge.”

15.There were four perfected grounds of appeal advanced by Mr Lawrence Yip of counsel on the appellant’s behalf, namely :

(1) the learned judge erred in drawing the inference that the appellant and Ng Man Wai were accomplices in the burglary;

(2) the learned judge erred in drawing the inference that the appellant acted as a lookout;

(3) the learned judge erred in finding that the appellant had broken into a run when realising that the occupiers of the burgled flat were returning home; and

(4)  that the conviction on count (1) is unsafe and unsatisfactory.

16.Grounds 1 to 3 of the perfected grounds of appeal were further developed by reference to the evidence and the judge’s findings. 

17.Grounds 1 and 2 can properly be considered together. 

They both have at their core the criticism that from the facts proven the judge could not properly have concluded as she did that the appellant and Ng Man Wai together committed this burglary.

18.Similarly it is submitted that the conclusion reached by the judge that not only did they commit the burglary together but her attributing to each a particular role and course of conduct on the day of the burglary cannot be sustained in light of the evidence.

19.The facts that were not in issue at the end of the trial were that :

(1) on the day of the burglary the appellant was observed to be on the same floor of the burgled premises;

(2) he was, when apprehended, in possession of a bag which contained the personal belongings of Ng Man Wai;

(3) on the day of the burglary Ng Man Wai was observed to be in the building where the burglary took place;

(4) the burglary took place some time between 8 a.m. and 7:30 p.m. on 22 January 2007;

(5) none of the items of jewellery stolen in the burglary were in the appellant’s possession when he was apprehended;

None of these facts alone or taken together implicated the appellant.

(6) in the bedroom of the burgled premises, on a rucksack was a shoe print which could have come from the shoes the appellant was wearing when he was apprehended but which could equally have been left by any person wearing shoes of the same sole pattern.

This latter piece of evidence was the only direct evidence which pointed to the appellant as the person who had entered the burgled premises that day.

20.The judge however eliminated the incriminatory nature of this evidence when she accepted that part of the appellant’s evidence that on that day Ng Man Wai was wearing identical white sports shoes and by implication could have left the shoe print inside the burgled premised had he entered it.

21.Mr Yip submits that the judge concluded without any evidential foundation that the appellant and Ng Man Wai together committed this burglary and attributed different roles to each of them when there was no evidential foundation to do so.  For example, she concluded that Ng Man Wai was the one who entered the premises through the damaged security bars because he was the thinner of the two.  This was without evidential support.  Ng Man Wai was not in court.  The CCTV images said to be of him were equivocal. 

22.He submits that if there was no sufficient evidence to establish that Ng Man Wai was the burglar, then it is impossible to thereafter infer that the appellant was together with him committing the burglary, let alone to conclude that his role was that of a lookout.

23.Ms Anna Lai, SGC on behalf of the respondent, seeks to uphold the conviction.  She says in her written submissions :

“The Learned Trial Judge was fully aware of all the evidence before her as she set out precisely in her Reasons for Verdict.  On those evidence she was fully entitled to draw the inferences that she had drawn in her conviction of the Applicant on Charge 1.”

24.She submits that there is no merit in any of the grounds of appeal.  She also submits that the judge correctly concluded that Ng Man Wai was the burglar. 

25.We do not agree.  The presence of Mr Ng Man Wai in the building on that day did not by itself implicate him in the burglary of these premises.  Whilst it is true to say that the shoe print found in the ransacked bedroom probably came from the burglar, this could not establish that Ng Man Wai was the burglar.

26.The fact that he may have purchased the same pair of sports shoes as the appellant and was wearing them that day could not in the circumstances of this case, absent other evidence, establish that he had left the shoe print in the burgled premises.  There was no other evidence.

27.Having accepted that part of the appellant’s evidence that Ng Man Wai was on that day wearing similar sports shoes as the appellant it is an improper quantum leap to conclude beyond reasonable doubt that he was the one who entered the burgled premises.  This conclusion was without any evidential foundation.

28.In our view the judge concluded that the appellant was guilty of the burglary charge not by the proper drawing of inferences from established facts but by speculating as to what must have occurred.  This she did without reference to the evidence before her.

29.The judge’s reasoning in paragraphs 17 and 18 of her Reasons for Verdict assumed that the appellant did not enter the premises and leave the shoe print.  Once that conclusion was reached, there was then no evidence upon which she could properly convict the appellant.

30.Grounds 1 and 2 of the perfected grounds of appeal must succeed.

31.As to Ground 3 of the perfected grounds of appeal, it suffices to say that the evidence of the PW2 and PW3 was not consistent as to when it was that the appellant “broke into a run”.  The appellant, for his part, said that it was when the two young men started chasing him for no apparent reason.  PW2’s evidence was that when she first saw the appellant he was walking towards the lift.  PW3 agreed in cross-examination that when he first saw the appellant he was walking at a normal pace, not “hasty”.

32.The judge concluded that the appellant broke into a run when he realised that the owners of the flat he and Ng were in the process of burgling were returning, and it was because of this that he began to run away.  Such a conclusion required a reconciliation of the apparent conflicts in the evidence of the prosecution witnesses.  There was none in this case and therefore that conclusion cannot be sustained.  This ground of appeal must also succeed.

33.The process by which the judge concluded that the appellant was guilty of the burglary charge was fundamentally flawed and for the reasons we have given we granted leave, treated the hearing as the appeal and quashed the conviction.

Miss Anna Lai, SGC of the Department of Justice, for the Respondent

Mr Lawrence Yip, instructed by Messrs Li & Partners, assigned by DLA, for the Appellant