HKSAR v. Tam Chi Choi

CACC 381/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 381 OF 2008

(On Appeal From District Court Criminal Case No. 630 of 2008)

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BETWEEN

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Before : Hon Stock VP, Cheung JA and Saunders J in Court

Date of Hearing : 23 July 2009

Date of Judgment : 23 July 2009

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

1.The appellant was found guilty of the charge of burglary by Deputy District Court Judge Sham. Pursuant to leave granted by a single judge of this Court, the appellant now appeals against the conviction.

The charge

2.The appellant was charged under section 11(1)(a) of the Theft Ordinance (Cap 210). The charge reads

‘ TAM Chi-choi, on the 26th day of June, 2008, in Hong Kong, entered as a trespasser part of a building known as Tokyo Sushi Restaurant, Shop Nos. 14-15, Ground Floor, AIA Tower, No. 183, Electric Road, North Point, with intent to do unlawful damage to the building or anything therein.’

Facts

3.The facts showed that on 26 June 2008 at about 3:45 a.m. the police was mounting an anti-burglary operation in the vicinity of the Tokyo Sushi Restaurant (‘the restaurant’), in Electric Road, North Point, Hong Kong.

4.The appellant was observed walking to and fro outside the restaurant. At 5:15 a.m., the appellant approached the restaurant with an iron bar which was wrapped with a piece of white cloth. Shortly afterwards he dropped the iron bar and entered the restaurant.

5.Upon seeing this the police took action and followed the appellant into the restaurant. The appellant was found squatting beside a refrigerator.

6.The police arrested the appellant and under caution he said that,

‘ I understood, I had consumed alcohol, that was the reason why I broke into here. I did not intend to take the money; I only intended to cause damage to the things in it.’

7.In a video-recorded interview the appellant told the police that,

(1) He picked up the iron bar at a nearby construction site and used it to prize open the entrance door of the restaurant.

(2) He broke into the restaurant as he wanted to get back the tools that he had previously left behind in the restaurant.

(3) He intended to cause damage to the refrigerator of the restaurant so that the owner of the restaurant would employ him to repair it.

(4) He had a course of dealing with the owner of the restaurant, including a dispute as to payment.

8.The owner of the restaurant stated that he came to know the appellant in July 2007 when the appellant was doing the electric works for the restaurant. But after the completion of the work, he had no more contact with the appellant.

9.The appellant gave evidence. He said that he entered the restaurant not only to retrieve the tools but also to check the freezer for the owner.

10.The Judge rejected the appellant’s explanation that he went to the restaurant to damage the things inside but rather his intention was to steal the things there.

The Theft Ordinance

11.Sections 11(1) and (2) of the Theft Ordinanceread as follows :

‘ 11. Burglary

(1) A person commits burglary if―

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2); or

(b) ……

(2) The offences referred to in subsection (1)(a) are―

(a) stealing anything in the building or part of a building in question;

(b) inflicting on any person therein any grievous bodily harm or raping any woman therein; and

(c) doing unlawful damage to the building or anything therein.’

12.The Judge found the appellant guilty of burglary not on the basis that he was charged, namely, that he entered the building as a trespasser ‘with intent to do unlawful damage to the building or anything therein’ but rather ‘with intent to steal’. The Judge relied on section 51(2) of the Criminal Procedure Ordinance (Cap 221) which reads,

‘ (2) If on the trial of any information,charge or indictment for any offence other than treason it is proved that the accused is not guilty of that offence but the allegations in the information,charge or indictment amount to or include,whether expressly or by implication,an allegation of another offence falling within the jurisdiction of the court of trial,he may be found guilty of that other offence or of an offence of which he could be found guilty on an information,charge or indictment specifically charging that other offence.’ (emphasis added)

Our view

13.We are of the view that the Judge had erred in relying on this section. It is a difficult question whether burglary is one offence with different particulars or three separate offences under section 11(1)(a), namely,

(1) trespass with intent to steal;

(2) trespass with intent to inflict grievous bodily harm or rape;

(3) trespass with intent to do unlawful damage.

14.Smith and Hogan on Criminal Law (12^th Ed) at page 906 stated the English equivalent of section 11(1)(a) creates three separate forms of offence. The three separate forms of offences are described as ulterior offences at page 915. The offence of burglary is constituted when a person enters as a trespasser with the necessary intent (R v. Toothill [1998] Crim LR 876) irrespective of whether or not he succeeds in the intended theft, grievous bodily harm etc.

15.If there is only one offence then arguably section 51(2) will not be applicable at all because there is no issue of another offence upon which the Court could convict.

16.Without going into this difficult area, even if for the purpose of argument there are three different offences, which we are not deciding for the purpose of this appeal, we are of the view that section 51(2) is not applicable because what is required is that the allegations in the charge ‘amount to or include, whether expressly or by implication, an allegation of another offence’.

17.In R v. Lillis [1972] 2 QB 237 at 241, Lawton LJ construing a similar provision in section 6(3) of the Criminal Law Act 1967 suggested that the test to be applied is this :

‘This can be shown by striking out of the indictment all the averments which had not been proved ―the ‘red pencil test’.

18.In Commissioner of Police of the Metropolis v. Wilson and R v. Jenkins [1984] AC 242 at 258, Lord Roskill construed section 6(3) as follows :

‘ My Lords, the right approach to the solution of the present problem must first be to determine the true construction of section 6(3), bearing in mind the observation of Lawton L.J. in Lillis (1972) 56 Cr.App.R. 573; [1972] 2 Q.B. 236 as to its purpose and as to the position before its enactment. Ignoring the reference to murder or treason, there seem to me to be four possibilities envisaged by the subsection. First, the allegation in the indictment expressly amounts to an allegation of another offence. Secondly, the allegation in the indictment impliedly amounts to an allegation of another offence. Thirdly, the allegation in the indictment expressly includes an allegation of another offence. Fourthly, the allegation in the indictment impliedly includes an allegation of another offence. If any one of these four requirements is fulfilled, then the accused may be found guilty of that other offence.’

See further R v. Whiting (1987) 85 Cr. App. 78.

19.Whether the test to be adopted is by reference to Lillis or Wilson and Jenkins the requirement is not satisfied.

20.The Judge held that the burglary in the present case was constituted by the intent to steal and not the intent to cause damage. Applying the Lillis test, if the intent to cause damage in the charge is deleted, then clearly it cannot be shown that the charge ‘amounts to or includes an allegation of intend to steal’, because as a result of the notional striking out, the nature of the intent has not been specified at all. That being the case the original intent to damage cannot encompass the intent to steal as well.

21.If the Wilson and Jenkins approach is adopted, it cannot be said that the allegation of burglary constituted by trespass with intent to cause damage expressly or impliedly amounts to an offence of burglary constituted by trespass with intent to steal. Also it cannot be said that the allegation of burglary constituted by trespass with intent to cause damage expressly or impliedly includes an allegation of the offence of burglary constituted by trespass with intent to steal.

Amendment

22.What the Judge had done was in effect to amend the charge and convict on the amended charge without notifying the parties of his intention to do so and without giving the appellant an opportunity to respond to his intended action. In the cross examination of the appellant, it was put to him by counsel for the respondent that he intended to steal. But as the prosecution had not sought leave to amend the charge then clearly the basis in which the appellant was charged was still the one concerning the intent to cause damage. This was the position notwithstanding defence counsel had in fact expressly raised the issue whether a conviction under section 11(2)(a) was possible.

23.As the Court of Final Appeal stated in HKSAR v. Mo Yuk Ping [2007] 1 HKC 255 at 272 that,

‘ where a prosecutor chooses to invite a conviction on a specific factual basis, it is wrong in principle for the tribunal to convict on a different basis of which a defendant has not been notified and which he has not had the chance to address in defence to the charge.’

24.The respondent invites this Court to exercise the power to amend. In HKSAR v. Huynh Bat Muoi [2001] 4 HKC 643 this Court (Stuart-Moore VP, Woo and Stock JJA) on appeal amended the charges pursuant to the powers conferred by section 23(1) of the Criminal Procedure Ordinance, section 13(4) of the High Court Ordinance (Cap 4) and also under the inherent jurisdiction of the Court.

25.The power to amend should only be exercised at this late stage if there is no prejudice to the appellant. The amendment is not in respect of some immaterial averment but to bring forward a different contention altogether. If the amendment were sought at the beginning of the trial, then tactical decisions such as whether the appellant would give evidence would have to be considered by him. If the amendment were sought in the course of the trial, then an opportunity would have to be given to the appellant to consider whether to recall the prosecution witnesses or to give further evidence. We are satisfied that the mere fact that the prosecutor changed his mind late in the case and put to the appellant that he was at the restaurant intending to steal and that the appellant denied the allegation does not cure the problem. The appellant was entitled to know what charge he had to meet and he was entitled to be provided with the opportunity to respond toa newly amended charge. The prejudice to the appellant at this stage is a substantial one. Hence we would not amend the charge.

26.The prosecution also drew our attention to Section 83A of the Criminal Procedure Ordinance. In HKSAR v. Li Ting Kit [2002] 2 HKLRD 129 the Court (Stuart-Moore VP, Leong and Wong JJA) referring to Section 83A held the power under that provision to substitute a different verdict includes the power to amend the particulars of the offence. For the same reasons, we would not allow the amendment under this provision at this late stage.

Conclusion

27.Accordingly the appeal must be allowed and the conviction quashed.

Mr. Eddie Sean, Senior Assistant Director of Public Prosecutions of Department of Justice for the Respondent

Mr Phillip Ross, instructed by Messrs Eli K K Tsui & Co., for the Appellant