HKSAR v. Cheng Shek Fai and Another

CACC 337/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 337 OF 2014

(ON APPEAL FROM DCCC NO. 221 OF 2014)

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DECISION
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1.The Applicants Cheng Shek Fai (D1) and Cheng Sik Kwong (D3) were charged with one count of burglary jointly with each other and another person (D2). 

2.On 26 September 2014, Douglas Yau DJ found all the defendants guilty as charged.  D1 was sentenced to a term of imprisonment of 30 months and D3 was sentenced to a term of imprisonment of 3 years.

3.Essentially the prosecution case was that the police had received information regarding a plan to commit a burglary.  Accordingly on 22 December 2013, some police officers lay in wait near Caroline Hill Road in Causeway Bay, while some other officers sought, eventually unsuccessfully, to follow a car (HW1011) carrying four men from Kowloon. 

4.In the early hours, HW1011 arrived at Caroline Hill Road.  Four men got out.  After a discussion they stationed themselves at different places, looking around.  One of them (which the judge found was D2) took out a backpack from the boot of the car. He took out a tool from the backpack and it was used to open the door of a restaurant.  A man was seen close by D2 when he was at the door, which man the judge found to be D3.  D2 then entered the restaurant and took out a metal cash box.  He returned to the car and put it into the car. 

5.One of the men got into the car and drove off.  Police officers tried to stop the car but failed. He is still at large.

6.The other men left separately.  Eventually, D1, D2 and D3 were stopped by police officers in the vicinity.

7.The fact that D1 and D3 were stopped by police officers in the vicinity and were arrested was not disputed at trial.  The issue was whether they had taken part in the burglary of the restaurant.  

8.Neither D1 nor D3 gave evidence at trial.  Nor did they call any witnesses.  The trial judge convicted them both for reasons set out in his Reasons for Verdict. 

9.The defendants have applied for leave to appeal against conviction and have applied for bail pending appeal.

10.The court has an unfettered discretion in deciding whether to grant bail pending appeal. But it is usually only granted where it appears prima facie that the appeal is likely to be successful. 

11.Bail pending appeal may also be granted if there is a risk that the sentence will have been served by the time the appeal is heardbut this does not apply in the present case in view of the length of the sentences.  

12.I have read the defendants’ grounds of appeal against conviction and considered their counsel’s submissions to see if they have shown that prima facie their appeals are likely to be successful.

13.In brief, it was argued by Mr Selwyn So (who appears for both defendants) that their identification as target suspects was prejudicial and based on hearsay evidence because PW1 (who had begun to follow them in Kowloon) said that she was able to identify them as the targets to be followed from photographs that she had been shown.  However the photographs were no longer available. 

14.Mr So also submitted that the defendants’ presence in the vicinity where the burglary occurred did not suffice to show that they had taken part in it.  Indeed Mr So went so far as to submit that a defendant may have been at the scene in order to persuade the others not to commit the crime, and the court should not convict unless participation had been proved beyond all reasonable doubt. 

15.Further it was submitted by Mr So that the judge failed to give himself a “flight warning”. 

16.Moreover Mr So submitted in his written submissions that there were discrepancies in the times shown on CCTV footage from various shops in the vicinity.   

17.In his Reasons for Verdict, the trial judge had reminded himself of the Turnbull principles.  More importantly the defendants were not arrested solely because of PW1's identification of them as the target suspects in Kowloon.  They were arrested in Causeway Bay shortly after the burglary had been committed, and after they had been followed by other police officers.  Their movements had also been caught on CCTV footage of a number of different shops in Causeway Bay. 

18.As to Mr So’s submission that their presence was not evidence of commission of the offence of burglary, what each of the men intended could be seen from their actions, eg arriving together, participating in discussions, stationing themselves at different places and looking around whilst one of them committed the burglary, with another standing close by.  They then split up – after the crime was committed.  It is common sense that if a person intends to commit an offence, it is unlikely that he would have with him people who were not aware of his plans, as they may not only be a hindrance at the time, but may also inform on him at a later stage.     

19.As for Mr So’s submission that a defendant may have been there just to persuade another not to take part in a crime, neither of the defendants gave evidence that that was what occurred, and a judge should not speculate on possible defences in the absence of evidence.

20.As for not giving himself a “flight warning”, the judge did not seem to have relied on “flight” as evidence against the defendants, and in any event this was a professional judge.

21.Finally the judge was well aware of the discrepancies of the time shown on the CCTV footage from various shop premises and indeed discussed the details extremely thoroughly. 

22.In conclusion I am not persuaded at this stage that either of the defendants has shown prima facie that his appeal is likely to be successful.  Their applications are accordingly dismissed.

Mr Selwyn So instructed by C O Yu & Co assigned by the Director of Legal Aid for the 1^st Applicant (1^st Defendant) and the 2^nd Applicant (3^rd Defendant)

Miss Irene Fan, SPP of the Department of Justice for the Respondent