R. v. Tong Kam Cheong

CACC000677/1996

IN THE COURT OF APPEAL

1996, No. 677

(Criminal)

______________

______________

Coram: Hon Litton V.-P., Mortimer and Mayo, JJ.A. in Court

Date of hearing: 22 May 1997

Date of judgment: 22 May 1997

_______________

J U D G M E N T

_______________

Mayo JA giving the judgment of the Court:

1. The applicant was convicted after a trial before HH Judge McMahon of burglary. He now seeks leave to appeal against this conviction.

2. On 9 May 1996 the police were performing surveillance duties relating to an anti-dangerous drugs operation in the vicinity of the building where the burglary referred to in the particulars of offence is located.

3. Sergeant 22837 was posted on the roof top of premises known as Sunningdale Gardens. At about 4pm the Sergeant noticed through his binoculars a man climbing out of the window of the 22/F of Rome Court and climb around the concrete ledge on which there was a flower bed. The man broke the window of another flat on the 22/F with a hammer and chisel and entered the flat.

4. Subsequent inquiries revealed that the flat which the man had emerged from was Flat G and the flat he had entered was Flat F. Flat G was vacant at the time in question and the occupiers of Flat F were away in China. These occupiers had left the flat properly secured.

5. The Sergeant then observed the man emerge from Flat F and return by the same route to Flat G empty handed about one minute later.

6. The Sergeant informed other members of his team of his observations over his beat radio. He gave a description of the man to his colleagues including a description of the clothing he was wearing.

7. His colleagues set in motion appropriate action. A high rise search was conducted of Rome Court and all that was found was a hammer and chisel which were in another unoccupied flat on the 22/F. This was Flat B.

8. At 5.20pm one of the police officers who was posted at the entrance of the building saw a man who answered to the description which had been given to the team by Sergeant 22837. He accordingly arrested the man who is the applicant in these proceedings.

9. A short time later the Sergeant arrived at the building and identified the applicant as being the man he had earlier observed. It transpired that the applicant was an off-duty police officer who resided with his lady friend Ms Ho in a flat on the 23/F of the building.

10. Further investigations were undertaken and it was confirmed that Flat F had been ransacked although no property was found to be missing.

11. The police arranged for a forensic examination to be undertaken in Flats F and B. Footprints were found in these flats which showed what the trial judge described as being conclusive matching characteristics with the slippers which were being worn by the applicant at the time of his arrest. Soil samples were also taken from the slippers and from the flats which matched but this evidence was not pursued at trial by the prosecution on account of the distinct possibility that someone else could have left the samples found in the flats.

12. The applicant made a cautioned statement to the police in which he denied any involvement in the burglary. He did however admit that at the time he was experiencing some financial embarrassment. He had debts in excess of $100,000 and his salary was only $16,000 odd per month.

13. At the trial the applicant gave evidence. He described his movements on the day in question. He had spent most of the day at home. At 3pm he had gone to collect his laundry and after returning home had gone to purchase a mark six lottery ticket at about 4.10-4.15pm in the afternoon. He had also visited the local library and read a part of a book. He received a message on his pager from Ms Ho and had learned from her that the police were investigating a burglary in the building and that he should return home. He did so. On his arrival back at the entrance of the building he had been arrested by the police.

14. The judge weighed and analysed the evidence which was before him. He gave himself Turnbull directions so far as the Sergeant's identification of the applicant was concerned and attached significance to the fact that the Sergeant had seen the applicant with the assistance of binoculars. He also bore in mind that when the Sergeant had later seen the applicant with the police officers at the entrance of the building this was an entirely different situation to an identification being made at a formally structured identification parade. For this reason he had exercised a considerable measure of caution concerning this evidence. Indeed he said that it required corroboration.

15. However the most compelling evidence was the forensic evidence concerning the applicant's slippers and the matching prints in the flat. The judge gave the reasons why he found this evidence to be convincing.

16. In particular there were four separate characteristics arising out of the use of the slippers which would indicate that this was the slipper which caused the prints to be made on the chair in Flat F.

17. So far as the defence case is concerned the judge was clearly well aware of the applicant's previous excellent character and he weighed his evidence carefully. At the end of the day he did not find him to be a convincing witness.

18. The applicant has lodged fairly lengthy and detailed written grounds of appeal.

19. The applicant addresses matters which either were or should have been before the judge.

20. Many of the points he makes are matters which were specifically dealt with by the judge in his Reasons for Verdict. Clearly there can be no question of these issues being ventilated again as this would mean that we were conducting a re-hearing of the case rather than an appeal.

21. Several of the matters he refers to are inappropriate. He makes complaints concerning Ms Ho's statement and the statement he made to the police. These were both admitted as evidence with the consent of the parties.

22. The applicant further elaborated on the grounds before us. However nothing he said throws any doubt on the validity of this conviction.

23. There is however one matter which has caused us some concern. This is the question of the statement appearing in the cautioned statement we have referred to to the effect that the applicant was financially embarrassed at the time of the offence.

24. In the normal course of events evidence of this nature would not be admissible. In the present case the cautioned statement was admitted as evidence by consent and presumably the reason for this was that the statement as a whole reflected creditably on the applicant's character. In this situation the evidence of financial embarrassment was properly before the judge.

25. The judge did comment near the conclusion of his reasons that the applicant's indebtedness may have provided some explanation for what would otherwise be conduct which was entirely out of character with what one would expect from a man in the applicant's position.

26. The context of this was a consideration of the character of the applicant and clearly was not one of the matters which was weighed by the judge when determining whether the prosecution had proved its case against the applicant beyond a reasonable doubt.

27. The important matter to be borne in mind is that it is manifest from the Reasons for Verdict that the judge based the applicant's conviction on the Sergeant's evidence which was supported by the expert testimony of PW7. We are satisfied that the conviction is in no way unsafe or unsatisfactory. The application is refused.

Representation:

Mr D.G. Saw QC, DPCC & Miss Lily Wong, CC for Crown Prosecutor

Tong Kam Cheong - Applicant in person/present