R. v. Yu Siu Wa

CACC000153/1994

IN THE COURT OF APPEAL

1994, No. 153
(Criminal)

_____________

_____________

Coram: Hon Macdougall, V.-P., Penlington and Liu, JJ.A.

Date of hearing: 21 December 1994

Date of judgment: 21 December 1994

_________________________________________

J U D G M E N T   O F   T H E   C O U R T

_________________________________________

Macdougall, V.-P.:

1. The applicant was convicted of theft after trial before His Honour Judge Jackson in the District Court. He now applies for leave to appeal against that conviction.

2. The evidence for the prosecution was that on the evening of 8 May 1992 the owner of a Mercedes-Benz, on returning to his car which was parked in a carpark, saw to his dismay two men sitting in it. He immediately reported the matter to two patrolling police officers who then went to the carpark to investigate. When the officers appeared on the scene the car was driven at speed down the carpark ramp at them. One of the officers drew his revolver and opened fire at the car which then crashed into a wall of the carpark. The driver and a passenger both leapt out of the crashed vehicle and ran from the scene. The driver managed to escape in another vehicle. The other man, who was the applicant, was pursued and apprehended by the two officers and a passing police superintendent.

3. On arrest the applicant was found to have a screwdriver and a pair of pliers in his pocket and to be wearing a glove. When cautioned, he replied, "Ah Sir, since I have been caught by you as regards the vehicle, Ah Keung asked me to steal it". The judge accepted without reservation the police evidence and that this was the reply which the applicant had given to the caution.

4. Mr McCoy, who appeared for the applicant in this court but not in the court below, advanced one ground of appeal. He submitted that the applicant's admission was not inconsistent with having committed an offence against section 14(1) of the Theft Ordinance Cap 210, namely taking a conveyance without authority, and was therefore not sufficient to convict him of the offence of theft of the motor vehicle.

5. It is plain from his Reasons for Verdict that the judge, having been addressed by defence counsel on this very point, considered and rejected it. We are of the opinion that he was perfectly entitled to do so and to take the admission of the applicant at its face value. There was no reason for him to assume that the applicant meant anything other than what he said. Moreover, leaving aside the applicant's admission, we consider that the fact that the applicant's companion in crime was able to effectuate his escape in a nearby car pointed strongly in itself against an intention merely to use the Mercedes-Benz to joy ride. The theft of luxury cars and their immediate transportation to China on high powered speed boats specially designed for the purpose is a notorious fact. The modus operandi is to look for a vehicle of a required make and model that is parked in a location - usually a carpark - from which it can be stolen without attracting undue attention, to break into it and drive it to the waterfront where a crane truck is waiting to load it onto a speed boat. We are satisfied that there was sufficient evidence before the judge to enable him to come to the conclusion which he did. The application for leave to appeal against conviction is therefore refused.

Representation:

Mr John Reading (Crown Prosecutor) for the Crown

Mr GJX McCoy & Mr C. Chin (M/S Chong, Leung & Co.) for YU Siu-wa, the applicant