Burglary – Elements of offence – Defendant put his head into the open window of a premises without getting in contact with anything inside – Whether there was sufficient entry for the purpose of the offence of burglary – Theft Ordinance (Cap 210) s 11

Sentencing – Standard tariff of 30 months’ imprisonment for burglary of non-domestic premises – Whether applicable to the present case with minimal entry

HKSAR v KHAN ASIF [2010] 4 HKC 31

Court of Appeal
Criminal Appeal No 83 of 2009
Stock VP, Yeung and Hartmann JJA
14, 18 December 2009

Philip Ross (Massie & Clement) for the applicant.
David Leung and Kathie Cheung (Department of Justice) for the respondent.

The applicant and another man were wandering furtively in a rear lane in Central. After they had looked around for a while, the applicant’s companion lifted him up to the level of an open window. The applicant held onto the window sill, popped his head in through the window for five to six seconds, withdrew his head, looked back down to his companion and then did the same thing again. When a pedestrian walked past, the applicant withdrew his head, descended and the two men walked out of the lane.

The premises was a godown to a rice shop. The trial judge found that a partial entry was sufficient and convicted the applicant of burglary and sentenced him to 30 months’ imprisonment for this charge.

On appeal, the issue was what constituted an entry for the purpose of s 11(1) of the Theft Ordinance (Cap 210). The applicant also appealed against the sentence imposed on the  basis that there was only minimal entry into the premises.

Held, granting leave to appeal against conviction, dismissing the appeal against conviction but allowing the appeal against sentence by reducing the sentence on the charge of burglary to 18 months’ imprisonment:

The common law rule was that the insertion into the premises of any part of the body, however small, was sufficient to constitute an entry. A number of authorities in the United Kingdom followed the common law rule: R v John Davis (1823) R and R 498, R v Bailey (1818) R and R 341 and R v Gibbons (1743-1761) Fost 107. The phrase ‘effective and substantial entry’ in R v Collins was not about what constituted an entry for the purpose of the offence of burglary as the issue in that case was where the defendant was when the female occupant invited him in. R v Collins [1973] QB 100 considered and not followed.

The Theft Ordinance, using the same terminology of the Theft Act 1968, was not intended to alter the common law rule of what constituted an entry, a rule which made for certainty. The act against which the statute was directed was a deliberate and uninvited intrusion upon private premises with an intention to steal or to commit one of the other offences in s 11(2) of the Theft Ordinance. The entry which the statute had in mind was a wilful intrusion upon private space. Commentary to R v Ryan [1996] Crim LR 320 considered and followed.

The sentence should be on the basis that there was minimal entry into the premises for the purpose of stealing therein if there was anything worth stealing and that the applicant decided to abandon the escapade. The standard tariff of burglary into non-domestic premises of 2½ years’ imprisonment did not apply. A sentence of 18 months’ imprisonment was appropriate on the unusual facts of the case. Such sentence was not to be taken as appropriate simply because goods were not in fact stolen.

Stay of proceedings – Abuse of process – Covert recording of conversation – Deliberate infringement of legal professional privilege – Fact-finding – Whether stay should be ordered

HKSAR v WONG HUNG KI (黃洪基) [2010] 4 HKC 118

Court of Appeal
Criminal Appeal No 424 of 2008
Stock VP, Hartmann JA and Wright J
26-28 January, 11 May 2010

Edward Fitzgerald QC and Derek Chan (Boase, Cohen & Collins) for the 1st appellant.
Leo Remedios, Lisa Remedios and Samuel Yip (Bernard Wong & Co) for the 2nd appellant.
Kevin P Zervos, Keith Oderberg and Giles Surman (Director of Public Prosecutions) for the respondent.

The appellants were convicted after trial before Deputy District Judge Andrew Chan of two charges of conspiracy to offer advantage to public servants and two charges of conspiracy to falsify accounts. In the course of the trial, an application for stay of proceedings was made on behalf of the appellants, which the judge dismissed. The appellants appealed and contended that the judge erred in dismissing the stay application.

The application for stay was based on the abuse of process constituted by the fact that the Independent Commission Against Corruption (ICAC) officers tape-recorded a conversation between an immunised witness, the 2nd appellant and two solicitors. It was argued that the ICAC knew or ought to have known that the conversation was covered by legal professional privilege. Nevertheless, the ICAC proceeded to record the conversation and subsequently listened to it. As a result, there had been a deliberate infringement of legal professional privilege which constituted so grave an affront to the court’s sense of justice and propriety that the proceedings should be stayed. Further, it was contended on behalf of the 1st appellant, who was not involved in the conversation, that he could not have a fair trial as he could not have access to what had transpired in the course of the conversation to which the ICAC had become privy.

Held, allowing the appeal and ordering a permanent stay of proceedings:
A decision to stay or to refuse to stay proceedings on the basis that they constituted an abuse of process was a decision that could only be made upon findings of fact. It was necessary for a judge to decide whether there had or had not been a violation of a suspect’s right to confidential legal advice and, if there had been, whether it had been occasioned accidentally or, if not accidentally, then on the basis of strong grounds to believe that the communication was not privileged; conversely, whether the violation had been deliberate or in reckless disregard of rights.

The trial judge had failed satisfactorily to address his fact-finding task and his findings of fact and the consequential exercise of his discretion could not be supported.

A permanent stay of proceedings was justified only in highly exceptional circumstances. Whilst the right to fair trial was absolute, the range of remedies available to a court in the course of a trial would normally suffice to ensure a fair trial despite inappropriate conduct in the investigatory or prosecutorial process. However, where a defendant showed on the balance of probabilities that, by reason of factors outside his control, he was prejudiced to the extent that a fair trial could not be held, the continuation of the prosecution would then constitute an abuse of process because the process of the court was one which required justice to be dispensed with impartiality and fairness. Where a fair trial remained possible despite official misconduct in the bringing of the prosecution, the public interest lay in proceeding with the trial in order to determine the guilt or innocence of the accused.

There would be circumstances in which despite the availability of a fair trial, an abuse of power so offended the court’s sense of justice and propriety or was of such a kind as to affront the court’s sense of justice and propriety with severe consequences for public confidence in the administration of justice, that the court might feel duty-bound to exercise its discretion to order a stay of the proceedings. Such a circumstance would most obviously arise where illegal conduct by law enforcement authorities or prosecutors was ‘so grave as to threaten or undermine the rule of law itself ’ in which case the court might ‘readily conclude that it would not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case’. Whether the circumstances were such as to warrant a stay as a serious affront to the court’s sense of justice and propriety was a highly fact-sensitive question.

The adversarial system could not work justly if lawful confidential communications between client and legal adviser were not insulated from law enforcement authorities responsible for investigating and prosecuting a case. But for the astute preservation of that confidentiality, the process by which we determined guilt or innocence was undermined. In general, therefore, where there was a deliberate violation of a suspected person’s right to legal professional privilege, that constituted an affront so great to the integrity of the system of justice and therefore the rule of law that the associated prosecution was rendered abusive and ought not to be countenanced by the court.

Whilst legal professional privilege was engaged to protect communications made in the ordinary course of a solicitor-client relationship, communications in furtherance of a criminal purpose were not protected, so a client who used his solicitor to further a criminal purpose was not entitled to claim the privilege. This was the fraud exception to legal professional privilege. However, a communication from client to legal adviser regarding the conduct of forthcoming proceedings was not deprived of the privilege merely because such communication was untrue and would if acted upon lead to the commission of the crime of perjury. The fraud exception was more likely to apply if the criminality was freestanding and independent.

If a deliberate intrusion upon a suspect’s privileged communication with his legal adviser by reason of which intrusion confidential information was disclosed to the law enforcement authorities was demonstrated, it was not necessary to establish, in order to secure a stay, that the defendant had thereby suffered prejudice in the conduct of his case.

General guidance as to how the discretion should be exercised in particular circumstances would not be useful. What the judge had to do was to ‘weigh in the balance the public interest in ensuring that those that were charged with grave crimes should be tried and the competing public interest was not conveying the impression that the court would adopt the approach that the end justified any means’.

Suspects, whether in fact guilty or not, must have recourse to confidential legal advice; deliberate eavesdropping upon such privileged communications was without question unlawful and viewed by the courts with such disapprobation that they would in general divorce themselves from proceedings tainted by this category of illegality.

The evidence in this case displayed on the part of the ICAC officers who took the key decisions, particularly the decision to listen to the recorded conversation, either a cavalier approach to privileged communications or a failure to appreciate the nature and importance of the principle. It mattered not which it was, for if it was the latter, it was a failure on a fundamental issue which could not be countenanced in the case of a law enforcement authority operating in a society governed by the rule of law.