HKSAR v. Md Emran Hossain

CACC 330/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 330 OF 2014

(ON APPEAL FROM DCCC NO. 492 OF 2014)

________________________

________________________

________________

JUDGMENT

________________

Introduction

1.On 19 September 2014, following a trial before HH Judge Woodcock, the applicant was convicted of a single charge of burglary, which took place on 14 January 2014 at Room 34C, 2/Fl, 32-34 Fuk Chak Street, Tai Kok Tsui in Kowloon, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.  In respect of that offence, the applicant was sentenced to 3 years’ imprisonment.  He now seeks leave to appeal against both conviction and sentence.

The Trial

The prosecution case

2.At about 8:30am on 14 January 2014, the occupant of Room 34C, a Mr Choi, left his premises, having secured its iron-gate with a padlock, but with its windows open.

3.At about 11:15 am, the tenant of Room 34B, a Ms Hon, was woken up by some loud noises outside her room, which sounded as though someone was kicking and trying to prise open a metal gate.  Ms Hon was frightened and did not go to investigate.

4.The noises attracted the attention of a police officer who happened to be conducting an anti-crime patrol in the building. The officer traced the source of the noises to Room 34C.  There, he saw the applicant, whom the officer described as a person of dark complexion wearing a distinctive yellow woolen hat with stripes, inside Room 34C trying to break the padlock at the iron gate with a hammer and a screwdriver from inside the premises.  The officer kept the applicant under observation for some 30 seconds before approaching him.  When the applicant saw the approaching officer, he shut the wooden door on the other side of the iron gate.  The officer knocked at the door, but there was no response.  He then contacted Ms Hon in Room 34B, who assisted him in locating Mr Choi.

5.Mr Choi arrived shortly thereafter but was unable to open the padlock due to its damaged state.  In the end, the police had to break the padlock to gain entry to the room.  The police found no one inside, but there were obvious signs that it had been ransacked.  The RMB600 which Mr Choi had kept in a wooden drawer was missing and his tools had been moved.

6.About an hour after the police officer had first seen the applicant inside Room 34C, the applicant was found inside Room 38 on the same floor.  The room, which was a vacant premises full of abandoned furniture, was not secured with locks and its windows were open.  Police officers found the applicant hidden beneath a blanket, holding some tools in his hand.  The applicant was ordered to put the tools down, which he did, and a search was then conducted on him.  In the applicant’s right, front trouser pocket was found RMB600.  The applicant told the police that he was just sleeping there.  He did not admit having burgled Room 34C.

7.Police investigation showed that there was a canopy on the outer wall of the building which could provide access from Room 34C to Room 38.  The applicant’s right index fingerprint was found – and this was agreed by the parties at the trial – on a plastic drawer inside Room 34C.  A forensic scientist gave his opinion that the scratch marks on the padlock were not made by the tools found in the applicant’s possession upon his arrest.

The defence case

8.The applicant gave evidence to the following effect. On the day of the offence, police officers had stopped him outside the building in which Room 34C was located.  They took him, firstly, to Flat 38 where they made him touch some tools.  Thereafter, he was taken to Room 34C, by which time he was handcuffed from behind, where he was made to touch the doorknobs and the window latches and was forced to open and close a drawer.  He said that when attempts were made to get him to touch the drawer, he clenched his fists but was struck forcefully in the ankles with a metal rod.  In his pain, he unclenched his fists, and the drawer was then put in his hands behind his back.  He said he was severely assaulted inside Room 34C, with kicks delivered at his lower private parts, causing his sexual organ to bleed.  He was elbowed in the neck below the ear, and he hit his head against the wall.  He said that the RMB600 was found in his wallet rather than his trouser pocket as the police claimed. He explained that the money was a loan from a friend from Bangladesh.

Reasons for verdict

9.The judge identified the issue at trial as one of credibility of witnesses.  She found the prosecution witnesses credible and reliable, there being no material inconsistencies in their evidence.  As to the identity of the person who tried to break out of Room 34C, the judge ruled that the observation by the officer of the applicant for some 30 seconds was not a fleeting glance; it represented a sufficient opportunity for the officer to observe and note the applicant’s facial features and his clothing.  The judge was of the view that she could safely rely on the officer’s identification of the applicant as the person who was trying to get out of Room 34C.

10.On the other hand, the judge considered the applicant’s evidence fanciful and far-fetched and rejected it in its entirety. Although the interpreter who assisted the applicant during the police enquiry remembered the applicant had made a request to seek medical attention, the interpreter was unable to recall the reason why the applicant had made such a request.  The judge found that had the applicant been injured as badly as he had described in his evidence, he would have mentioned the injuries to the interpreter, who would have remembered them.  Furthermore, if the applicant’s injuries were as bad as he described, the Duty Officer of the police station to which the applicant was taken would have noticed them.  Furthermore, there would have been a medical report dealing with the injuries to the applicant’s private parts, but no medical report had been produced at the trial.

11.While the forensic evidence showed that none of the scratch marks on the padlock were produced by the tools found in the applicant’s possession upon his arrest, the judge noted that Mr Choi’s tools inside Room 34C had obviously been moved by the burglar as he looked for a tool to open the padlock.  Finally, the judge said that the officer’s observation of what the applicant was doing inside Room 34C was supported by Ms Hon’s evidence to the effect that she was awakened by loud noises.  The judge was sure, therefore, that the applicant had been banging on the iron gate in an attempt to get out of Room 34C, and rejected the applicant’s allegation that the police had forced him to touch the many surfaces in Room 34C in order to frame him up.

12.The judge found the burglary charge against the applicant proved to the required standard and convicted him accordingly.

Grounds of appeal against conviction

13.In his Notice of application for leave to appeal filed on 29 September 2014, the applicant said he did not commit any crime, he was arrested in the street in Tai Kok Tsui, the prosecution had no evidence against him, he was beaten by police officers and kicked so badly that his private parts bled, his leg was injured and his right ankle fractured.  This morning he has produced certain medical reports, including one from the Senior Medical Officer of a hospital dated 18 January 2014 (4 days after his arrest) recording, so far as I can make it out, a superficial wound to his left calf; and a later report from a radiologist at Lai Chi Kok Reception Centre dated 28 April 2014 (some 3½ months after his arrest) recording that the applicant had a fracture to the lateral malleolus of his right ankle.

Consideration

14.Many of the factual points put forward by the applicant were advanced at trial and considered by the trial judge.  I can see no error of law or in the judge’s fact-finding process.  The only matter which has caused me any concern is the judge’s finding concerning the applicant’s credibility in the light of the information contained in the reports produced to me this morning.

15.The applicant was represented by solicitors and counsel at trial yet the medical reports were not produced.  However, had they been produced, I am doubtful they would have had any significant impact on what is on the face of it an overwhelming case.  The ankle fracture and any discomfort associated therewith is not recorded in any report until 3½ months after the applicant’s arrest, there is no medical support for any injury to the applicant’s private parts and, as Mr Daryanani points out, if the applicant did have calf and ankle injuries at the time, it would hardly have been surprising given that he must have made at least two extremely perilous journeys across the front of the outside of the building in order to get into Room 34C and into Flat 38.  Furthermore, there must have been considerable urgency, if not panic, in his climbing from Room 34C to Flat 38 after he had become aware that he had been discovered and the police were trying to get into Room 34C.

16.In all the circumstances, I do not consider that this material, assuming it were to be permitted by a Court to be introduced as fresh evidence upon the appeal when it was not adduced at trial, would have made the slightest difference to the verdict in this case.  Accordingly, leave to appeal against conviction is refused.

Reasons for sentence

17.In sentencing him, the judge noted that the applicant, an asylum seeker in Hong Kong since 2006, was 36 years of age at the time of his sentence and had been before the courts on two separate occasions, once for theft, another time for going equipped for stealing, for which offences he had been sentenced to 15 months and 8 months’ imprisonment respectively.  Noting that the burgled and ransacked room was Mr Choi’s home, the judge imposed the guideline sentence of 3 years’ imprisonment on the applicant.

Grounds of appeal against sentence

18.The applicant argued that the sentence was excessive in view of the fact that he had suffered serious injuries in his private parts and legs.

Consideration

19.Given the circumstances of the offence involving domestic premises, and of the offender, in particular his previous convictions, there is nothing obviously wrong with the sentence passed upon the applicant. Leave to appeal against sentence must also be refused.

Conclusion

20.These applications are hereby refused and the applicant is duly advised of his right to renew either or both applications to the Court of Appeal, and the consequences of so doing, which may include a direction for the loss of any time spent in custody pending his appeal, if the Court comes to the conclusion that there was no justification for the renewal of the application.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person