HKSAR v. Tam Kwan Cheong

CACC000077A/2002

CACC 77/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 77 OF 2002

(ON APPEAL FROM DCCC 926 OF 2001)

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Coram: Hon Stock, Yeung JJA and Jackson J in Court

Date of Hearing: 11 September 2002

Date of Judgment: 11 September 2002

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J U D G M E N T

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Hon Jackson J: (giving the judgment of the Court)

1.The appellant was convicted after trial before HH Judge Chua in the District Court of two offences of burglary of domestic premises in Lok Ma Chau committed towards the end of August last year, and he pleaded guilty to an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully here.

2.He was sentenced to a term of 3 years' imprisonment in respect of each offence of burglary and to a term of 18 months' imprisonment in respect of the immigration offence. 6 months of the term imposed for the second burglary was ordered to be served consecutive to the term for the first burglary with 2 years and 6 months to be served concurrently. The term imposed for the immigration offence was ordered to run consecutive to the sentences imposed for the burglaries, in other words he was ordered to serve a total of 5 years' imprisonment.

3.His application for leave to appeal against both conviction and sentence in respect of the burglary offences was heard and dismissed by a Vice President of this court sitting alone on the 26 June 2002. The applicant now seeks leave to renew his application.

4.The burglaries were committed on precise dates unknown between 17-18 August and 22-25 August last year respectively. The applicant's offence of 'remaining in Hong Kong' was committed on the 26 August the day of his arrest. The significance of those dates is that, according to what the applicant told the authorities subsequent to his arrest, he only landed illegally by sea in Hong Kong on the morning of the 25 August.

5.What he also told the authorities, in effect, was that he had not committed either of the burglaries, and the reason that he was in possession at the time of his arrest of some of the distinctive items stolen in the burglaries was wholly coincidental, because they had been given to him by his cousin on the Mainland to help him finance some medical treatment the seeking of which treatment was the reason why he had come illegally to Hong Kong in the first place.

6.Before the single judge the applicant's grounds for leave to appeal against conviction can be summarised in his own words as follows:-

"I was caught by police officer(s) in Mai Po, they saw the money on my person and charged me with the offence(s) of theft. I was told to confess. I said that I had not stolen but had borrowed from my cousin. Neither the police nor the judge believed me. The police put my two mainland (train) tickets dated 24th August, a map and some tissue paper into the garbage bin so when I appeared in court, I did not have the (train) tickets as evidence to prove that I was not at the scene to steal.

I really did not go to the victim's home. Neither do I know where it is. There were no fingerprints of me, in the victim's home."

7.As to his grounds in respect of his sentence the applicant put forward grounds relating to his obligations to his family on the Mainland and he repeated that he had not 'stolen' anything.

8.In a letter to this court dated 9 July this year, the applicant repeats those general grounds in respect of both conviction and sentence and he adds that he was "set up"; that at least one of the burglary victims lied about the property taken and that at his (the appellant's) trial his counsel did not permit him to give evidence.

9.As to that last matter we have had the benefit of reading an affidavit from counsel who appeared at trial. We accept what is said in that affidavit. We are in no doubt that the applicant was told by his counsel in no uncertain terms and more than once what his rights were as regards giving evidence; what the consequences might be, and that the decision whether or not he should give evidence was a matter entirely for him. We are perfectly satisfied that the applicant's decision not to give evidence at his trial was his and his alone.

10.Whilst it is true that a considerable amount of the property (including cash) which was taken in the burglaries was not found upon the applicant, and that there was some lack of certainty in the identification of some of the property found on the applicant, those facts can avail him nothing: the trial judge addressed them fully in her reasons for verdict. The inescapable fact of the matter is that the prosecution proved beyond reasonable doubt (to the satisfaction of the trial judge) that at the time of his arrest the applicant, who was an illegal immigrant and who was stopped by the police at 11:55 p.m. on the Castle Peak Road, was in possession of a good deal of the property which had been stolen in the burglaries committed a few days beforehand. Much of that property (including specific currencies, jewellery, a registered telephone, specific commemorative coins and a 'Popeye' lighter) was distinctive. The trial judge was perfectly entitled to draw the inference which she did draw given her findings of fact; given that she rejected the applicant's exculpatory account of matters which he gave to the police, and given that the applicant chose not to give evidence at his trial. Indeed we would go so far as to say that on the evidence at trial there was no other inference (other than a wholly fanciful one) that could have been drawn.

11.The application for leave to appeal against conviction is without merit, and is dismissed.

12.The sentences imposed upon the applicant for these offences were appropriate and accordingly his application for leave to appeal against those sentences is also dismissed.

Representation:

Mr Bernard M Ryan, SADPP, leading Mr David Leung, SGC of the Department of Justice, for the Respondent

Applicant in person