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Hksar v Saeed Ur Rehman

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date26 April 2018
Neutral Citation[2018] HKCA 234
Year2018
Judgement NumberCACC257/2017
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC257/2017 HKSAR v. SAEED UR REHMAN

CACC 257/2017

[2018] HKCA 234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 257 OF 2017

(ON APPEAL FROM DCCC 135 OF 2017)

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BETWEEN
HKSAR Respondent
and
SAEED UR REHMAN Applicant

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Before: Hon McWalters JA in Court
Date of Hearing: 17 April 2018
Date of Judgment: 26 April 2018

_____________________

J U D G M E N T

_____________________

1. The applicant was charged with the offence of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. The charge alleged that the applicant together with another, on 27 December 2016 attempted to enter as trespassers part of a building in Sham Shui Po, Kowloon. The applicant appeared before District Judge Dufton (“the judge”) and pleaded not guilty to this charge.

2. On 4 August 2017 the applicant was convicted of this charge and on the same day he was sentenced by the judge to 3 years and 3 months’ imprisonment.

3. He subsequently applied for leave to appeal against his conviction. At the hearing of the application I reserved my judgment. This is my judgment.

The prosecution case

4. The part of the building which the applicant was alleged to have attempted to enter was a flat on the 8th floor which was owned by a Mr Ho. At about 7:30 pm on 27 December 2016 Mr Ho heard sound coming from outside the kitchen window of his flat and heard two males talking in a foreign language. Mr Ho called the police who arrived a few minutes later.

5. When the police reached the 8th floor where Mr Ho’s flat was located, the police officer first to arrive saw one male looking around while another male was using a crowbar to prise open the window of Mr Ho’s flat. When the police officer approached these two males they fled towards a rear staircase with the second male dropping the crowbar on the ground. Both men were intercepted and arrested. It was the prosecution case that D1 was the person using the crowbar to break into the flat and the applicant was the person keeping lookout.

6. On the police case the applicant was never out of sight of the police officer who arrested him.

7. In the video record of interview the applicant exercised his right of silence but did answer some questions. When asked by the police if he knew D1, the applicant replied that he did not and this answer was consistent with the evidence he later gave in court.

8. In response to questions about the crowbar the applicant replied that he did not see either the crowbar or a receipt for it which was found in D1’s possession.

The defence case

9. The applicant testified in his defence and said that he went to the building to collect money from a Nepalese friend who lived on the floor where the police arrested him. He claimed that as his friend was not home he started to walk down the stairs of the building and it was when he was in the staircase that he was intercepted by the police. The police then took him to the corridor of the 8th floor and asked him to wait there. After several minutes D1 was brought to this location. The applicant said he did not know D1 and did not go to the building with him. He denied assisting D1 to break into any flat and he maintained he did not see D1 use the crowbar. At the scene the police asked D1 if he knew the applicant and D1 replied he did not.

10. The applicant testified that the police officer brought another Nepalese male to the corridor whom D1 said was his friend who had come to the building to meet him.

11. The only other evidence called by the applicant was D1. By the time that D1 was called he had already pleaded guilty to the charge and admitted a Summary of Facts which contained reference to the applicant as being D2, the person who was assisting him to commit the burglary.

12. D1 testified that at the time he was on the 8th floor he was with a Nepalese male whom he regarded as a brother. He said he did not see the applicant there and did not know the applicant prior to the date of the attempted burglary. However, when asked if the applicant had ever assisted him to do anything that evening D1 replied “Yes”, but this answer was not further pursued in evidence.

The judge’s Reasons for Verdict

13. The judge accepted the evidence of the police officers and rejected the evidence of the applicant and of D1. In respect of evidence of D1 the judge had this to say:

“50. I have no hesitation in rejecting the evidence of D1 that he was with a Nepalese male on the 8th floor; was sitting on the staircase when the police intercepted him and that he only saw D2 after he was brought up. This evidence was materially different to the facts D1 admitted when pleading guilty, in particular that D2 was looking round when D1 was using a crowbar to prise open the window of the flat; and that when the police approached D2 shouted whereupon D1 and D2 ran towards the staircase.”

The applicant’s grounds of appeal

14. The applicant is unrepresented and has not filed any Perfected Grounds of Appeal. However, he attached a document to his Form XI which set out certain complaints. In that document he has essentially repeated the defence he advanced at trial, namely that he had gone to the building to collect money from a friend and he was arrested by the police whilst in that building. He maintained he did not know D1 and had never met him before.

15. In a letter to the court...

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1 cases
  • Hksar v Saeed Ur Rehman
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • August 9, 2018
    ...Yam, Jacky Lee & Co, for the appellant [1] Leave to appeal against conviction was granted on 26 April 2018. See HKSAR v Saeed Ur Rehman [2018] HKCA 234 per McWalters [2] The offence of attempted burglary is contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210, and section 15......

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