HKSAR v. Chow Wan Hi and Another
Read the full judgment text of DCCC 1012/2015 on BabelCite. This District Court judgment was delivered on 21 December 2016.
1. This verdict concerns D1 and D2 only.
Cited by 1 case
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IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 1012A OF 2015 -------------------------------------------
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--------------------------------------- REASONS FOR VERDICT --------------------------------------- BACKGROUND 1.This verdict concerns D1 and D2 only. 2.D1 is charged with the following counts:-
3.While D2 is charged with the following counts:-
4.D1 pleaded guilty to 4th, 5th and 12th charges and pleaded not guilty to 2nd and 6th charges. While D2 pleaded not guilty to both 2nd and 3rd charges. PROSEUCTION CASE 5.The prosecution case is largely undisputed. The stolen Isuzu light goods vehicle 6.At around 1900 hours on 19 July 2015, Ng Kwai Chuen parked his Isuzu light goods vehicle bearing registration number plate HB 2364 (“Isuzu LGV”) inside a car park at Hong Yip Street, Yuen Long. When he returned to collect the Isuzu LGV the next morning on 20 July 2015, he found it missing and reported to the police. 7.At around 1715 hours on the same day (20 July 2015), D1 drove the above stolen Isuzu LGV bearing a different registration number plate FE 809 into the New Wing Hing Auto Engineering Services (Garage 1) located at Shun Tat Street, Tuen Mun, which was owned by D2. 8.D1 intended to sell the Isuzu LGV for scrapping as instructed by his friend Wong Man Kit (“Wong”). Having negotiated the price, D2 gave cash $18,000 to D1. D1 left the Isuzu LGV in the garage and he himself was picked up by Wong and left the garage. 9.Later on the same night between 2000 to 2100 hours, D1 returned to the entrance of the garage sitting in the front passenger seat of the private vehicle driven by Wong. D2 came out to receive D1 who then handed a document to D2, which was later confirmed to be a photocopy of registration document of vehicle FE 809. (Charge 2 against D1 and D2) 10.At that juncture, police officers PC 3907 and PC 6014 went up to the driver seat and the front passenger seat respectively of the private car driven by Wong respectively. Having revealed their police identity, the police officers requested D1 and Wong to get off from the car, but the car door was looked. The vehicle moved forward after which PC 6014 broke the car window on D1’s side and opened the door of the car. D1 was pulled out of the car and attempted to move but was finally subdued by PC 6014 shortly afterwards. (6th charge against D1 only) 11.At around 2046 hours, D2 was arrested by PC 3810 outside Garage 1 while he was holding the aforesaid photocopy of vehicle registration document. D1 and Wong were intercepted by other police officers almost at the same time. Two more stolen vehicles found at another garage owed by D2 12.After the arrest of D2, he informed the police that he had another garage situated at Deep Bay Road, Tin Shui Wai (Garage 2). A search was conducted at Garage 2 where two more stolen vehicles were found[1] (3rd charge against D2 only). D1’s admission under caution 13.Upon arrest, D1 said, under caution, that “Ah sir, I merely know that Ah Gor called asking me to drive the said stolen vehicle here to collect two thousand dollars and it would be okay”[2]. 14.Subsequently, three video recorded interviews[3]were conducted with D1 on 21 July 2015, during which he said, inter alia, that:-
D1’s CASE 15.D1 elected to testify in court. In his evidence, the told the court that the reward of his driving of the Isuzu LGV has not been mentioned by Wong. He knew it only when he was paid after he had delivered the Isuzu LGV to Garage 1. He did the job for Wong because of their friendship and that he was grateful for Wong repairing his family fish car in the past. He said he never thought about something being wrong and he did not care how much Wong was going to pay him. 16.In respect of the arrest, D1 said he was all along sitting on the front passenger seat. D1 noticed that PW2 had shouted “police!” and told him to open the car door. He did try but it was locked and he could not open it. After the window was broken and car door was opened by the police, D1 was almost immediately pulled out of the car and pinned down on the ground. He did not run for 2 steps as said by the police. Neither did he feel the move of the vehicle before the police broke the window as said by PW2. D2’s CASE 17.D2 also elected to give evidence in court. His evidence was basically in line with what he said under caution after arrest. He said that he did not know D1 who brought the Isuzu LGV in question to Garage 1 at the material time. He did check the vehicle licence, the chassis number and vehicle registration document which was only a copy. He found the chassis number in order but required D1 to bring back the original of the registration document. He paid $18,000 to D1 finally for the Isuzu LGV. He did not know the car was stolen. ISSUES D1 18.The issue for the 2nd charge against D1 is whether he knew or believed that the Isuzu LGV was a stolen vehicle. 19.The issue for the 6th charge against D1 is whether he did intentionally resist the police with a view to making it more difficult for the police to arrest him. D2 20.The only issue for both charges against D2 is whether he knew or believed the Isuzu LGV and the other two stolen vehicles located at Garage 1 and 2 respectively were stolen. DISCUSSION 21.Although D1 has pleaded guilty to some other charges and that some defendants of the case had pleaded guilty to the charges they are facing, I have reminded myself that those convictions should not have prejudiced D1 and D2 who were fully entitled to plead not guilty to some or all of the allegations against them. D1 - 2nd charge 22.The undisputed facts were that D1 having been disqualified from driving for some time agreed to drive the Isuzu LGV for Wong for a 10 minutes’ distance[4] in return for a handsome amount of reward of $2,000. 23.Strangely enough, D1 admitted that Wong had called him to go to a place to pick up the Isuzu LGV, with car key inserted and door unlocked. As a matter of fact, the Isuzu LGV was parked by the owner the previous day at a car park in Yuen Long and was then unknowingly in Wong’s possession/control the very next day bearing a different registration number plate. Furthermore, during the 10 minutes’ journey Wong was all along closely following D1 and picked him up after D1 had left the Isuzu LGV at Garage 1 and obtained the $18,000 from D2. D1 admitted he was also responsible for negotiating the price and discussing on the handling of the registration document with D2 on behalf of Wong. D1 was so heavily involved in the transaction of the Isuzu LGV in that later on the same evening he came back to the same garage and passed the photocopy of the registration document to D2. 24.In D1’s evidence, he said he was requested by D2 to bring back the original of the registration document. However, the document he finally handed to D2 after a few hours was still a copy, which should have made him know and believe that the Isuzu LGV was a stolen one. 25.In D1’s cautioned statement made upon arrest, the vehicle was admitted to be stolen. What’s more, he admitted at scene and also in subsequent video-recorded interview that he knew he would be rewarded for $2,000 for the driving and he also found something was wrong about it.[5] 26.Having considered all the circumstances of the case, I am satisfied that the evidence adduced by the prosecution is up to the standard of beyond all reasonable doubts that D1must have known or believed that the Isuzu LGV was a stolen one at the material time. 27.On the other hand, D1 did give some exculpatory evidence which I found them to be unconvincing at all after careful consideration. 28.In respect of the exact time when he knew the reward of $2,000, D1 kept changing his version. In the cautioned statements, he said he knew it already when he was firstly asked by Wong to do the task. In his evidence in chief, he changed his evidence in that the $2,000 was not mentioned by Wong and he just knew it when he was paid and picked up by Wong after he had delivered the LGV to Garage 1. He did the favour for Wong due to their friendship as he was grateful for Wong repairing his family car in the past. He did not actually care how much he was paid and he never thought about something wrong despite he was going to drive without a valid driving licence. 29.Upon cross-examination, D1’s evidence was shaken on a number of occasions. He gave various versions including:-
30.D1’s evidence in that regard was self-contradicting and unreasonable. 31.Regarding the evidence as to who was the one discussing the price of the LGV and the documentary proof at the garage with D2, D1 said in his cautioned statement that it was Wong who did the negotiation.[6] However, in his evidence-in-chief, he said it was he who did the conversation about price and documents with D2. Again, D1’s evidence was inconsistent and illogical. 32.D1 said he was not supposed to be the one bringing back the registration document to D2 after the delivery. It was only after he had played some video games when Wong called and asked him if he was going home and that D1 might join his ride. D1 said he just joined the ride and helped Wong to pass the document coincidentally. D1’s evidence is no more than a pack of lies. 33.He said he knew the Isuzu LGV was stolen under caution at scene. D1 explained in court that he knew the LGV was stolen only after he was arrested by the police and that was what he meant. He gave similar explanation about the fact that he felt something wrong about the $2,000 in the video recorded interview. He similarly excused that he only knew the “wrong” after the arrest, but not at the time of the offence. I found this excuse not believable and nonsensical. It was obvious that the police officer was asking and D1 was answering in respect of his state of mind at the time of the offence as opposed to the moment of the arrest. I do not accept this explanation and attach full weight to D1’s incriminating part of his cautioned statement and evidence in court. 34.I am well aware that even if I were to disbelieve D1’s evidence, the onus is always on the prosecution to prove its case against D1 to the standard of beyond all reasonable doubts. I have considered all the evidence adduced by the prosecution and I am sure that the circumstances and his admission did show that D1 must have known and believed the Isuzu LGV was a stolen car at the material time. I have no hesitation to conclude that D1 at the material time did conspire together with Wong to dishonestly assist in the retention, removal, disposal or realization of the Isuzu LGV in question knowing or believing the same to be stolen goods. I therefore convict D1 of 2nd charge. D1 - 6th charge 35.The prosecution’s case was that D1 did remain in the passenger seat with door locked and car moved forward despite police requested otherwise. Further, D1 did attempt to run away after he had got off from the car. As a matter of fact, D1 was obviously not in a position to control the locking and movement of the car as it was Wong who was driving at the material time. On the evidence, it appeared that the police’s action was swift and the window of the car was broken shortly after the interception. D1 was then pulled out of the car and subdued by the police almost immediately. PW2 said D1 did attempt to walk for two steps in the course of the arrest. Given the minimal extent of the resistance made by D1 in the midst of a chaotic situation, I give the benefit of doubt to D1 that his resistance may not be a deliberate one. I therefore acquit D1 of the 6th charge. D2 - 2nd charge 36.Can the court be sure that D2 must have known or believed the Isuzu LGV was a stolen one? D2’s case was quite different from D1’s. D2 was the owner of Garage 1 and the unrebuttable evidence was that D2 did not know D1 and Wong before and he did ask for further documentary proof from D1 or Wong after paying D1 $18,000 for the LGV. There was undisputable evidence that D2 did made some check on the LGV in question and negotiated price with D1 or Wong before he paid money to D1. Undoubtedly, it was suspicious that D2 would pay D1 in full without any receipt and allowing the Isuzu LGV to be kept in his garage before getting the original registration document which was contrary to D2’s practice all along. D2 explained that he expected D1 would certainly come back as D1 would need a receipt and a claim form from him before he could obtain a generous amount of compensation from the Environmental Protection Department. At the end of the day, the court needs to be sure that the only irresistible inference that could be drawn from the available evidence is that D1 must have known or believed the Isuzu LGV was stolen. It is inconceivable why D2 still needed to check the Isuzu LGV, negotiate the price and request D1 to bring back further documentary proof had D2 already known the car was stolen. I have no alternative but giving the benefit of doubt to D2 in the circumstances. D2 - 3rd charge 37.In respect of the two stolen cars in Garage 2, the question is again does the mere fact that two stolen cars have been found in the garage owned by D2 prove that D2 must have known the two cars were stolen. It was certainly strange that there was no written records at all as to how the cars were received and who handled the procedures. Having said that, there were, at the material times, ten odd more cars kept in Garage 2 and that apart from D2, there were two more employees of him who could receive cars on his behalf and possessed key to the garage. I also note that it was D2 who had told the police the existence and location of Garage 2 and his evidence all along was denying knowledge of the cars being stolen. This above invincible evidence does cast at least a lurking doubt on D2’s knowledge on the two stolen vehicles found at Garage 2. 38.As such, I found D2 not guilty of both charges 2 and 3 and he is acquitted of the same accordingly.
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