HKSAR v. Magar Abir Serpaja

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)

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J U D G M E N T

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1.On 25 October 2012, the applicant was convicted by District Court Judge Browne on a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.  In consequence of the conviction, the applicant was sentenced to 2 years and 6 months’ imprisonment. 

2.At the outset of proceedings today, the applicant sought an adjournment of the hearing of this application.  He said he needed more time to prepare for the application. 

3.I note that the notice for application for leave to appeal against conviction was filed with the court on 2 November 2012.  Legal aid was refused in respect of that application on 5 December 2012.  On 28 January 2013, the Bar Free Legal Service Scheme informed the applicant that they declined to represent him, given that their counsel who had reviewed the matter could find no merits in respect of either conviction or sentence.  On 31 January 2013, Madam Justice Yuen refused the applicant’s application for bail pending appeal.  On 7 March 2013, legal aid was refused in respect of the application for leave to appeal against sentence.  On 23 April 2013, the Bar Free Legal Service Scheme refused to assist the applicant in his application for leave to appeal against sentence. They advised him that the sentence “is lenient if anything”. 

4.I am satisfied there is no merit whatsoever in the applicant’s application for an adjournment of these proceedings and I refuse the application. 

5.The charge alleged that, on 16 May 2012, having entered Flat B on the 1st floor of 24 Ko Shan Road, Hung Hom, as trespassers, the applicant and his co-accused, SINGH Laik, attempted to steal. By notice of an application for leave to appeal filed with the court on 2 November 2012, the applicant seeks leave to appeal against this conviction.  By a further notice dated 15 February 2013, the applicant seeks leave to appeal out of time against the sentence imposed upon him. 

6.In his reasons for verdict, the judge noted that there was no dispute that at about 1630 hours on 16 May 2012, the applicant had been seen by Wong Chor-hon, a mechanic in a nearby garage, climbing through a 1st floor window at the rear of the building which housed the premises that were the subject of the burglary.  As a result, he had called the police. 

7.The judge noted that a Police Constable 33383 said that, after he had entered the building and approached Flat B on the 1st floor, he noticed that the opened grille to the premises was damaged. Through a crack between the door and the doorframe, he saw the applicant, wearing gloves and carrying a hammer, inside the premises.  In response to his shouted request that the door be opened, the applicant had put the hammer down and opened the door.  The judge noted that, in his evidence, the applicant said that he had come to be on the premises at the request of his co-accused to assist in the removal of air-conditioning units. 

8.He accepted that they had gained access to the premises through a 1st floor window at the back of the premises.  To do so, the co-accused had climbed through a window in adjacent premises, after which he had lowered a ladder down to enable the applicant to climb up and enter the building.  He collected some water pipes at the request of his co-accused.  When the co-accused returned, appearing to be in a state of panic, the two of them had gone to the premises at Flat B on the 1st floor.  There they remained for one and a half hours.  When the co-accused became aware of the fact that persons sought entry to that flat, he left through the window, whereas the applicant had remained in the flat. 

9.The judge noted that the applicant had said that he was not wearing gloves or holding a hammer when the police entered the premises.  The judge said that he accepted the evidence of Police Constable 33383, in particular that the applicant was wearing gloves and holding a hammer when he saw him in the flat.  By contrast, he rejected the evidence of the accused to the contrary, which he said he found to be incredible.  He did not accept that the applicant thought he was doing nothing wrong whilst in the building.  Whilst he said that he accepted that the applicant had not tried to escape from the premises, as had his co-accused, he said that he was sure that the applicant was aware of the presence of persons outside the premises and that explained why he had not tried to leave.  In the result, the judge convicted the applicant of the offence of burglary. 

10.In his homemade grounds of appeal, Form 11, against conviction, the applicant simply asserted that he sought leave to appeal against conviction.  Today, orally, he has asserted that he is innocent, that the judge was wrong to reject his evidence and to accept that of the police officer.  Clearly, the evidence against the applicant was overwhelming. The judge considered the defence, such as it was, and was entitled to reject it, as he did.  Conversely, he was entitled to accept the evidence of the police officer. 

11.In my judgment, there is no merit in the proposed grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction is refused.

12.In an affirmation attached to the notice of his application for leave to appeal against sentence out of time, the applicant said that because of his poor English, he did not understand that he could appeal against conviction and sentence at the same time and that is now what he wishes to do.  The applicant drew the court’s attention to the fact that his co-accused had been sentenced to a total of 2 years and 1 month’s imprisonment for two charges of burglary, whereas he had been sentenced to a total of 2 years and 6 months’ imprisonment for one charge of burglary.

13.The obvious explanation for the different sentences imposed on the two men was that the co-accused had pleaded guilty to both charges.  By contrast, the applicant had been found guilty after trial.  That much is apparent from the reasons given for sentence by the judge when dealing with the co-accused.  As is apparent from those reasons, the judge took a starting point of 2½ years’ imprisonment for both burglaries and, having afforded the co-accused a discount of one-third, imposed sentences of 20 months’ imprisonment in respect of each charge.  However, having regard to totality, the judge ordered that 5 months’ imprisonment of the sentence imposed in respect of the 2nd charge was to be served consecutively to the sentence imposed in respect of the 1st charge.  Accordingly, the total sentence of imprisonment imposed upon the co-accused was 2 years and 1 month’s imprisonment. 

14.As far as the applicant’s contention as to why it is that he proceeded only with an application for leave to appeal against conviction first of all and now seeks to apply for leave to appeal out of time in respect of sentence is concerned, it is of importance to look at what he had written himself on the first notice.  He wrote: 

“I request to apply both for appeal against conviction and for legal aid. I understand that I can apply for appeal against sentence at the same time. However, I want to apply for appeal against conviction only.”

Immediately beneath that appears to be his signature.  Form 11 states in terms the various bases upon which the application for leave to appeal may be made and stipulates, in capital letters, that it may be made in respect of conviction and sentence. 

15.I reject the applicant’s submissions in respect of his lack of understanding.  I am satisfied that the applicant does not satisfy the appropriate test to be granted leave to appeal out of time. Accordingly, the application for leave to appeal against sentence out of time is refused.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

The applicant appeared in person