HKSAR v. Magar Abir Serpaja
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CACC 437/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 437 OF 2012 (ON APPEAL FROM DCCC NO. 688 OF 2012) ________________________ BETWEEN
________________________ Before: Hon Yuen JA in Chambers Date of Hearing and Decision: 31 January 2013 ________________________ DECISION Hon Yuen JA: 1.The Applicant Magar Abir Serpaja (the 1st Defendant in DCCC688/2012) was charged with 1 offence of burglary. He was charged together with the 2nd Defendant of entering premises in Hung Hom as trespassers and attempting to steal therein. 2.The prosecution alleged that on 16 May 2012 at about 4:30 pm, a workman working at a garage in Hung Hom saw someone at a rear lane climbing into the 1st floor flat of a building through a window. He called the police. 3.The police arrived soon after and guarded the front and rear of the building. 4.The police also contacted the agent of the building owner. The building had been acquired for redevelopment. The 1st floor was unoccupied but there were metal pipes in the walls of the kitchens and bathrooms. 5.The police officer who was sent to investigate saw, through a gap between the wall and the latched door, the 1st defendant inside the premises. He was holding a hammer and was wearing gloves. The police officer told him to open the door and the 1st defendant put down the hammer and opened the door. 6.A water pipe cut from a wall was found in the kitchen sink. 7.The 1st defendant gave evidence. He said the 2nd defendant (whom he had met at a games centre some years ago) asked him to help take an air-conditioner. They took a taxi to Hung Hom, where he followed the 2nd defendant into a rear lane. 8.He saw the 2nd defendant climb a pipe to reach the 1st floor of a building. The 2nd defendant then passed a ladder down through a window and asked the 1st defendant to climb up. He said the 2nd defendant pulled him up through the window and inside the premises. 9.The 1st defendant said the 2nd defendant then went off somewhere in the building, and he was left waiting for the 2nd defendant for some 1½ hours. He denied he was holding a hammer or wearing gloves when the police arrived. He said he opened the door for the police but they forcefully put the gloves on his hands. Reasons for verdict 10.The trial judge gave detailed and thorough reasons for verdict. He rejected the 1st defendant’s evidence that he did not know that he was committing a crime. The judge held that when the 1st defendant saw the 2nd defendant gain access through climbing a window in the building, he must have realized that something very suspicious was going on. That was even more so when he saw the 2nd defendant pass him a ladder so that he could also climb in through the window. The judge disbelieved the 1st defendant when he said he was not holding the hammer and was not wearing gloves. The judge found the 1st defendant guilty as charged. Sentence 11.The judge sentenced the 1st defendant to 2½ years imprisonment. That is the usual sentence for burglary of non-domestic premises. Application for bail pending appeal 12.The Applicant has applied for leave to appeal against conviction and has now applied for bail pending appeal. Principles 13.The court has a discretion in deciding whether to grant bail pending appeal. However that discretion has to be exercised applying principles of law. 14.Bail pending appeal is usually only granted where it appears prima facie that the appeal is likely to be successful. Discussion 15.The 1st defendant has not provided any grounds of appeal at all. What he has said in court this morning was simply a repetition of his case which the district judge had rejected. There is nothing in the judge’s Reasons for Verdict that indicates the conviction is unsafe or unsound. The Applicant has failed to show prima facie that his appeal is likely to be successful. Order 16.The application for bail pending appeal is therefore dismissed.
The Applicant, in person, present. Ms Irene Fan, Senior Public Prosecutor, for the Respondent |
Cases cited in this judgment
Further hearings and rulings under CACC 437/2012