HKSAR v. Tam Ying Choi
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CACC 266/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 266 OF 2012 (ON APPEAL FROM DCCC NO 139 OF 2012) _________________
__________________________________ REASONS FOR JUDGMENT __________________________________ Hon Barnes J (giving the judgment of the court): 1.The applicant originally faced three counts of burglary, contrary to section 11(1) of the Theft Ordinance. He pleaded not guilty before HH Judge Frankie Yiu and after trial, he was acquitted of the first two counts of burglary but convicted of the 3rd Count, the particulars of the count are as follows:
2.For this offence, Judge Yiu sentenced the applicant to 20 months imprisonment. 3.The applicant applied for leave to appeal against conviction. At the conclusion of the hearing we dismissed the applicant’s application and indicated we would hand down our reasons in due course, which we now do. Prosecution case 4.The prosecution case was relatively straight forward. Principal Officer Leung Ka Lun (Leung) of the Correctional Services Department (CSD) was assigned Room 3, Flat 7, 3rd Floor, Block D, Officer Share Quarters (OSQ), at Pik Uk Correctional Institute (the institute) in March 2010. The applicant was an officer working at the Quartering Office of CSD and had a spare key to the room. Leung, who was in charge of the Security Unit, found that on two separate occasions (in May and August 2011) money he had placed inside the room went missing when he returned later after work. On both occasions he had locked the door of the room and there was no sign of any forced entry. 5.On 2 September 2011, Leung installed a concealed video camera inside the room and placed a strip between the door and its frame so that he would know if someone had entered the premises. Upon his return he found the strip had been displaced. He found nothing missing but when he viewed the video camera he saw images of the applicant inside the premises. Leung made a report to the police. 6.There was no dispute at trial that on the day in question the applicant was seen entering the premises and handling Leung’s handbag, wallet and clothing hung in a wardrobe between the hours of 15:04:24 and 15:07:04. 7.It was the prosecution case that although the applicant was in sole charge of the spare key to Leung’s premises and was also in charge of the inspection, maintenance and repair of quarters including Leung’s room, the applicant was required to seek the consent of Leung (the occupant) before he could enter the room. The prosecution called the applicant’s then supervisor Hui Hong Yu (Hui) to testify in relation to the need for consent from the occupant. 8.The prosecution’s stance was that the applicant, not having obtained consent from Leung, had entered the room as a trespasser intending to steal therein, though the applicant’s attempt to steal failed to yield anything. The defence case 9.The applicant, who had been an officer with CSD for 27 years, testified that he did not need the permission of the occupant before he could enter the room. When he entered the room on 2 September 2011, his intention was to check the facilities and equipment inside —as part of his duties. He said he was surprised to see a wallet and a handbag lying about on the bed so he checked those items to see if he could find out who the owner was, even though he admitted under cross‑examination that he knew Leung was the only occupant of that room and Leung was “of course the person who may put something inside” that room (Transcript 85 I). 10.The applicant disputed the prosecution stance that he needed the consent of the occupant before he could enter the room. The applicant also disagreed that he did not have the authorization to search the items inside the room, saying that he had some impression of rules and regulations mentioned to him by his previous supervisor that he could (Transcript 86 D). The applicant called as his witnesses his former supervisor Kan Shu Kay (Kan) and a retired officer of the Institute Lai Yiu Wah (Lai) to say that the applicant did not need the consent of the occupant to enter the room as it was his duty to make regular inspections of the room. 11.Kan referred to a certain memo (which was not produced) to say that the room was considered a “public place”, meaning those who “live” nearby could “appear over that place”, even though the rooms in the OSQ were secured by locks. 12.Lai also testified that the OSQ was a public place. However, when asked by Judge Yiu whether other officers could enter a particular room already assigned to one or two officers without approval, Lai’s response was “should not do so, [they] cannot” (Transcript 122 L) Reasons for Verdict 13.In his Reasons for Verdict, Judge Yiu referred to the video camera footage and noted that the applicant did not do anything consistent with checking equipment or facilities while inside the room. Instead the applicant was seen examining the handbag and wallet. The applicant did not look at the part of the wallet where documents of identity would be kept, but the part where banknotes would be kept. The applicant was also seen to have checked the waist level of the clothing hung in the wardrobe. 14.Judge Yiu accepted the evidence of Hui and rejected those of Kan and Lai, noting that a current officer was in a better position to tell the court the current policy in relation to whether the applicant could enter the room without the consent of the assigned occupant than a retired officer. 15.Judge Yiu rejected the applicant’s evidence and found that the applicant “went in as a trespasser and he did attempt to steal by searching the handbag and wallet of [Leung]”. Grounds of appeal 16.Mr Albert Luk SC leading Mr Victor Lee advanced three grounds of appeal and submitted that the conviction was unsafe and unsatisfactory:
17.To a great extent, these three grounds were closely related. In relation to Ground 1, Mr Luk referred extensively to the evidence of the applicant, Kan and Lai, and to some extent, the evidence of Hui, and submitted that Judge Yiu failed to properly evaluate the evidence of Kan and Lai and had inappropriately rejected their evidence on the ground that “they could hardly speak for the current position as opposed to [Hui’s] evidence”. 18.Mr Luk submitted that there was no written rule or document disseminated to the staff of the institute that approval of the occupant was required before the applicant could enter the room. Hui was only relying on common sense when he said permission was required. 19.Mr Luk referred to item 2 of a document entitled “Standing Procedures” (Exhibit D1) which reads:
20.Mr Luk also relied on the “Standing Procedure” in relation to the “Money and Cigarettes” (as can be seen from D1 and during the cross-examination of Leung (Transcript 59 A) whereby officers were not allowed to bring into the institution money exceeding a particular approved amount. 21.Mr Luk’s submission was that since the handbag and the wallet were left unattended inside the room, and since the applicant did not need the permission of the occupant before he could enter the room, the applicant was entitled to search the handbag and wallet to see if there was money exceeding the approved amount. 22.Mr Luk emphasized that Lai, who had retired not long before 2 September 2011, gave evidence that there was no need for the applicant to obtain approval. Mr Luk submitted that the answer given by Lai to questions posed by Judge Yiu (referred to in para 12 above) was an ambiguous one. The answer did not necessarily mean that Lai agreed prior approval of the occupant was required, Lai could have been referring to a general approval to enter. 23.On the basis that both Lai and Kan testified there was no need for the applicant to obtain consent from the occupant before he could enter the room, and that Kan testified he had told the applicant so, Mr Luk submitted Judge Yiu needed to be entirely satisfied that the applicant entered the room without the officers of the institute doing or saying anything to cause him to believe that he had permission to enter the room, before the judge could find the applicant entered as a trespasser (citing the judgment of R v Collins [1973] 1 QB 100 in support). 24.Further, Mr Luk complained that there was no ruling by Judge Yiu whether the applicant (1) entered the room knowing that he entered without permission; or (2) being reckless as to whether he had permission to enter, citing R v Phillips [2011] EWCA Crim 2149 (26 July 2011) para 5-8 in support. 25.In relation to Ground 2, Mr Luk referred to Judge Yiu’s ruling that “when the [applicant] attempted to steal therein, he became a trespasser accordingly” and submitted that it was not sufficient for the judge to find that the applicant “became a trespasser” after making a “non‑trespassory entry” into the room,. Mr Luk cited R v Walkington (1979) 68 Cr App R 427 and HKSAR v Khan Asif [2010] 1 HKLRD 404 in support. 26.In relation to Ground 3, again Mr Luk referred extensively to the evidence of Kan and Lai on the topic of the scope of the applicant’s duty. Mr Luk criticized Judge Yiu in concentrating only on the aspect of “checking equipment, fitting and furniture” in viewing the video recording, without giving proper consideration whether the applicant’s acts of searching the handbag and wallet and touching the clothing hung in the wardrobe, as captured on film, were open to an innocent interpretation. Our consideration 27.It is clear from the Reasons for Verdict that Judge Yiu was very much alive to the issue involved in this case, ie whether the applicant entered the room as a trespasser with the intention to steal therein. 28.Judge Yiu’s rulings were two‑fold. Firstly, on the evidence before him, he rejected the evidence of the applicant, Kan and Lai and accepted those of Hui and found that the applicant could not enter the room without the consent or permission of the occupant, ie Leung. The applicant therefore entered the room as a trespasser; and from the footage of the video recording, Judge Yiu came to the irresistible conclusion that the applicant attempted to steal when he searched the handbag and the wallet, and touched the clothing hung in the wardrobe, inside that room. 29.As an alternative, Judge Yiu found that even if the applicant did have the right to enter the room to carry out his duties, or a general permission to enter the room, the applicant exceeded that permission when he entered with an intention to steal. 30.Although Judge Yiu did say “When the [applicant] attempted to steal therein, he became a trespasser accordingly” in his Reasons for Verdict, one needs to read this sentence in context
31.Reading this sentence in context, it is clear that Judge Yiu did not mean to say that the applicant became a trespasser after a non‑trespassory entry, but that with the intention to steal when he entered the room, he exceeded the permission to enter and had become a trespasser. There was nothing in Ground 2. 32.Was Judge Yiu entitled to find on the evidence before him that the applicant could not enter the room without the permission of Leung? As the sole fact‑finder, we were unable to say, on the evidence before him, that Judge Yiu’s findings were either wrong or illogical. The applicant’s immediate superior at the material time testified that permission of the occupant was required. While Kan and Lai testified that permission was not required, they both relied heavily on the assertion that the OSQ was a public place. In our view, such an assertion defies both common sense and logic. One can readily understand if the place in question was a barrack or a common room, the access of which was open to a number of officers or personnel of CSD. In such a situation, if a bag was left unattended, an officer in the capacity of the applicant would no doubt be entitled to inspect the bag to ensure no contraband was inside and/or to find out who the bag belonged to. In the case of a room to which Leung was the designated occupant and was given a key to lock the door, it simply defies logic and common sense that such a room could be described as a public place. Judge Yiu was entitled to reject Kan and Lai’s evidence regarding a general permission for the applicant to enter the room. 33.Mr Luk’s submitted that the applicant could have acted in accordance with the “Standing Procedure” when he found the handbag and wallet unattended inside the room. The fallacy of this argument is that by no stretch of the imagination was it possible that personal items, left by an officer inside the very room designated for his use and to which he was given a key, could become unattended items. In any event, it was never the applicant’s case that he searched the handbag and wallet on suspicion that there was money in excess of the approved amount. His reason was to find out who the owner was - when he knew full well Leung was the designated occupant of the room. 34.Even assuming the applicant did have a general permission to enter the room, or that the applicant believed he had such a general permission, on the evidence before Judge Yiu - in particular the very cogent evidence of the video images, the only and irresistible inference was that the applicant entered the room with the intention to steal, thus he entered as a trespasser. We did not accept Mr Luk’s submission that the applicant’s action in all the circumstances was open to an innocent inference. 35.As submitted by Mr Jonathan Man for the respondent, “a picture is worth a thousand words”, or in the present case, “a video is worth a thousand words”. 36.On the film, the applicant was seen to have made a bee‑line to the handbag on the bed after opening the door with a key. While the applicant did look left and right before he started to search, it was telling how he patted and rummaged through the handbag without disturbing the position it was placed on the bed. When he searched the handbag a second time after he had a look inside the wallet, again he did not disturb the position it was placed. If the applicant had the intention of simply finding out who the owner of the bag was (which in any event was not credible as he admitted under cross‑examination that he knew the occupant was Leung and that Leung was of course the person who might have placed the items in the room), there was no reason for him to deal with the handbag in such a manner. By not disturbing the way the handbag was placed, the owner would not have found out that the bag had been tampered with. 37.The way the applicant looked at the wallet was also inconsistent with any desire to find out who the owner of the wallet was, as properly found by Judge Yiu. 38.The applicant never once touched any of the facilities or equipment he said he wanted to check. The cursory glancing around, coupled with his acts of searching the handbag, the wallet, and feeling the waist area of the clothing hung in the wardrobe, were not consistent with someone carrying out an inspection of the facilities and equipment inside the room. What was captured on film clearly showed that the applicant was unaware his actions had been filmed. Indeed the applicant admitted under cross-examination that he was not aware of the filming at the time (Transcript 90 R). 39.We bore in mind Mr Luk’s submission that the applicant left the door of the room ajar and that that he made a record of the search in his own notebook, however, there was nothing to cause us unease as to the correctness of Judge Yiu’s findings. The applicant clearly entered the room as a trespasser with the intention to steal therein. 40.In our view, the evidence against the applicant was overwhelming. The conviction was neither unsafe nor unsatisfactory. We refused the applicant’s applicant for leave to appeal.
Mr Jonathan Man ADPP, of Department of Justice, for the respondent Mr Arthur Luk SC, leading Mr Victor Lee, instructed by Damien Shea & Co, for the applicant | ||||||||||||||||||||||
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