Wan Pak Kook and Another v. R.

CACC000165/1992

IN THE COURT OF APPEAL

1992 No. 165
(Criminal)

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Coram: Hon. Silke, V.-P., Power & Macdougall, JJ.A.

Date of hearing: 2 March 1993

Date of judgment: 2 March 1993

Date of handing down reasons for judgment: 11 May 1993

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicants, who were charged with conspiracy to handle stolen goods, were the first and second of four defendants facing that count at trial. It was particularized that between 5th may 1989 and 26th July 1989, the four had conspired together with Ho Sin-son and other persons to dishonestly undertake or assist in the retention, removal or disposal or realization of certain stolen goods namely: one B.M.W. and eleven Mercedes Benz motor vehicles, particulars of which were set out. They were convicted after trial before Judge Longley in the District court and sentenced to imprisonment of four years in the case of the first applicant and of three and a half years in the case of second applicant. They now appeal against those convictions.

3. It was the Crown case that they conspired together with a man named Richard Ho who ran a motor car dealership in Malaysia, which was known as the Meyer Motor Sdn Bhd (Meyer Motors), to ship the motor cars, all of which had been stolen in Hong Kong, to Malaysia where they would be sold by Richard Ho.

4. The cars were shipped to Malaysia and were sold by Meyer Motors to genuine purchasers. Not all of the cars were consigned directly to Richard Ho but the judge was satisfied that the ultimate consignee in each case was that person. The vehicles had to be cleared by Royal Malaysian customs before being allowed into the country and, when this was being done, all were found to have engine chassis numbers which differed from the members in the bill of lading forwarded from Hong Kong. The variations were slight e.g. a "5" instead of a "3". It appears that the Customs Department officials in Malaysia accepted that these variations were clerical errors and arranged to allow the vehicles to be cleared after the correct details had been recorded. However, following reports of the thefts in Hong Kong, the local agents notified all Far East Mercedes Benz dealers of the thefts and provided details of engine numbers and chassis numbers of the stolen cars. When the cars were, in due course, taken for service in Malaysia, it was discovered that they were stolen cars. The police were informed and all cars were recovered.

5. The documentation held by the Malaysian Customs Department revealed that each of the cars had been shipped to Malaysia by Henry Trading Company, the sole proprietor of which was the second applicant. The Hong Kong police then, under a search warrant, raided the premises of Henry Trading Company and arrested the first and second applicants. Among documents seized were the original bills of lading in respect of all 12 cars. Police inquiries further revealed that following the delivery of each of the stolen cars to Meyer Motors, bank drafts from Malaysia had been sent by Richard Ho to either the first applicant or to Henry Trading Company and that Richard Ho had been in regular contact with the first applicant. The fingerprints of the second applicant were located on documents which dealt with the shipment of the stolen cars.

6. It was the Crown case that the first and second applicants had made the shipping arrangements and prepared the documentation for the shipping of the vehicles and that, after delivery was made to Richard Ho, bank drafts were despatched by him which were immediately cashed. There were no admissions made by the applicants and there was no direct evidence to establish involvement in any conspiracy but the trial judge was satisfied that he could properly infer from the evidence that the applicants were knowing parties to a conspiracy to handle the stolen cars.

7. The first applicant was represented by Mr. Kenneth Ho and the second applicant was represented by Mr. Ching Y. Wong Q.C. and Ms. Sabrina See. Mr. Ho took his first two grounds of appeal together. They read as follows:

"1. That the learned Trial Judge failed to direct himself properly or at all on the issue of conspiracy to handle stolen goods, namely the stolen cars, it is always the onus of the Crown to prove the case beyond all reasonable doubts and to disprove that the 1st Appellant believed he had permission to ship the same and had no knowledge that they were stolen cars;

2. That the learned Trial Judge erred in that he had failed to consider properly or at all on the defence of the 1st Appellant that he was an innocent agent/shipper who had handled the stolen cars without knowledge that they were stolen goods;"

To deal with Mr. Ho's submissions on these two grounds and indeed on the further grounds which he argued it is necessary to set out the following extract from the Reasons of the trial judge:

"I am satisfied that the twelve vehicles referred to in the Particulars of offence were stolen from various locations in Hong Kong between 5th May 1989 and 13th July 1989. It is apparent from the certificate of particulars of the vehicles issued by the Transport Department (Exhibits P75-86) that none of the vehicles had been manufactured before 1987 and that six of the vehicles were virtually brand new having been manufactured in 1989 and bought by their owners shortly before they were stolen. Car No. 6 was stolen on the night of the day Mr. Lam Ying Lung took delivery of it.

I am satisfied that those twelve vehicles were shipped to Malaysia through the Kong Hing Shipping Company.

The purported shipper in each case was 'Henry Trading Company' a firm of which the second defendant was registered as the sole proprietor but with which it is clear from the evidence D1 was associated.

I am satisfied from the evidence of Leung Kam Pui, the sales manager of Kong Hing Shipping Company and the admissions of D1 to the police which were supported by the faxes stated to be from D1 sent from Shun Fat Godown, where D1 was then working, that D1 personally made the shipping arrangements with Kong Hing Shipping Company for the shipment of the stolen cars.

I am also satisfied from the admissions made by D1 to the police, coupled with the evidence that the documents were typed on a typewriter at Shun Fat Godown where D1 worked, that it was D1 who personally typed on the dock receipts the purported engine and chassis numbers of the vehicles which were to be shipped. It was on the basis of that information that Kong Hing Shipping Company issued a Bill of Lading. In respect of each engine number and each chassis number typed on the form there was a minor discrepancy between those numbers and the numbers on the stolen car being shipped. Looked at individually such discrepancies might appear to be typing errors. Looked at collectively however the only reasonable inference is that these were deliberate discrepancies to conceal the real chassis and engine numbers of the vehicles being shipped.

I am satisfied that in the case of each container containing a stolen car that the ultimate consignee was Richard Ho Sin Son on whose behalf the goods were received, cleared through customs and registered in Malaysia and that it was he who disposed of the vehicles by sale to innocent purchasers in Malaysia.

Neither defendant gave evidence or called any witness on his own behalf. Each however had elected to answer at least some of the questions put to them by the Police under caution. The essence of what D1 said was that he was merely acting as an agent for Leung Chi Wing (formerly D4) in making the shipping arrangements for him. All he knew was that second hand cars were being shipped and his only remuneration was HK$10,000 for each container (see Exhibits P1-P8). D2 said that he operated Henry Trading Company with D1, that as far as he knew his company had not had any business dealings with Malaysia nor had it handled 'consignment formalities on behalf of the client to place an order with the Shipping Company'. When asked 'Do you know the Malaysian Richard Ho?' he replied "I don't know him' (Exhibits P9-16). He claimed that two deposits of $150,000 and $155,000 paid into his bank account in 1989 were from investment in real estate and decoration and design work in Taiwan.

1st Defendant

I propose firstly to deal with the case against the 1st Defendant. I am satisfied, as I have said, that he personally arranged the shipment of the stolen vehicles and typed the false engine and chassis numbers on the dock receipts. His explanation, namely that he was merely acting on behalf of Leung Chi Wing in return for HK$10,000, was demonstrably a lie. Within the period of the conspiracy alleged a total of $1,480,000 emanating from Richard Ho was transferred to D1 either directly or indirectly. Of this sum two cashier orders for $150,000 and $250,000, purchased by Richard Ho, were directly payable to D1. (Exhibits P112 and P113) and 9 bank drafts totalling $450,000 were bought by Richard Ho's wife, Chiam Yoke Yee (PWD24), at Richard Ho's request and made payable to 1st defendant 'to enable' as she said 'my husband to purchase cars in Hong Kong' (Exhibits P114, P115 and P116). In the absence of evidence of any legitimate trading between D1, Henry Trading Company or Henry Transportation Company and Richard Ho in 1989, I would have inferred that such sums were payments by Richard Ho for the stolen vehicles. Such inference is not necessary however in respect of two further bank drafts issued by the Oriental Bank for $390,000 (Exhibit P96) and $240,000 (Exhibit P133) in favour of 'Henry Transportation Company' (another firm registered in the name of D2 with which D1 was associated) the proceeds of which were transferred to D1's personal Bank account. These drafts were bought by the Wilayah Credit Sdn Bhd which financed the purchase by Richard Ho of 5 Mercedes Benz cars from Hong Kong, the two of which they can identify (because they were registered in Malaysia) being car 2 and car 7 referred to in the Particulars of offence (see evidence of PWD22 and PWD23).

I am satisfied that D1 would not have told the lie about the circumstances surrounding the shipping of the stolen cars to Malaysia if he had been doing so innocently. The inference is irresistible that the 1st defendant arranged the shipment of the stolen cars to Richard Ho in Malaysia knowing or believing them to be stolen.

In order to prove its case the Crown must establish that the 1st defendant arranged the shipment in pursuance of a conspiracy. In the circumstances of this case the Crown must establish a conspiracy either with Richard Ho or D2 or with both of them.

A conspiracy with Richard Ho

I am satisfied that the evidence leads to the inevitable inference that D1 dishonestly conspired with Richard Ho to ship these cars to Malaysia and that Richard Ho must have been fully aware that these were stolen vehicles.

Even ignoring the evidence of Mr. Yeung Siu Hong (PW13) that D1 and Richard Ho were cousins (which was given without objection from defence counsel but may have been hearsay and which I have therefore disregarded) there is evidence of a long and close association between 1st defendant, Henry Transportation Company and Henry Trading Company and Richard Ho. Yeung Siu Hong (PW13) of Zung Fu Company was introduced by Richard Ho to D1 and described how he had dealt with D1 acting on behalf of Richard Ho in relation to the 17 vehicles which Richard Ho had legitimately bought from Zung Fu between March 1984 and March 1988. Cheng Chin Cheung (PW15) of Shun Fat Godown said he had met Richard Ho through D1 while D1 was working at Shun Fat Godown and said that he had seen cars driven to Shun Fat Godown prior to 1st April 1988 for shipment by D1 to Richard Ho in Malaysia. When Richard Ho had purchased the Bank drafts for $150,000 and $250,000 for D1 he (Richard Ho) had given as his own address, the current addresses of Henry Trading Company and Henry Transportation Company. There is in addition the evidence of a number of telephone calls from the bedroom occupied by Richard Ho at the Guandong Hotel to telephone numbers of Henry Transportation Company during the 2 periods Richard Ho stayed there in April and May 1989 (see PWC1) and the evidence of a considerable number of calls made from the telephone numbers subscribed to by Henry Transportation Company and D1, to numbers in Malaysia which appear to be those of Richard Ho from a notebook (Exhibit P118) belonging to D1 (see PWC2).

Coupled with the evidence of association, which if it is stood alone would merely make it less probable that D1 would not appraise Ho of the origin of the stolen vehicles, is the evidence of Yeung Siu Hong (PW13) of Zung Fu of the supply to Richard Ho at his request of 20-30 green German vehicle registration books which related to vehicles which had previously been imported by Zung Fu other than those Ho had bought from Zung Fu. Some of the books were supplied to Ho through D1. I am satisfied from the evidence of Annamalai A/L Arunachalam (PWD8) that such a book was one of documents normally required for the registration of a German vehicle in Malaysia. If the car had been stolen in Hong Kong the thief would not have such a book. Inspector Dahmad Bin Mohd Moor (PW14) gave evidence of having seized 5 German Registration Books from the office of the Road Transport Department in Kuala Lumpur, photocopies of which he produced as Exhibits P141 (a) - (e) and having examined 5 others copies of which he produced as Exhibits P141 (f) - (j). In the absence of evidence of where the originals of Exhibits P141 (f) - (j) came from it is difficult to draw any inference therefrom. (This refers to the photo copies)

The natural inference in respect of Exhibits P141 (a) - (e) however is that they were submitted to the Road Transport Department when vehicles bearing the chassis numbers stated in the books were registered in Malaysia. In his final submissions Mr. Tang on behalf of D1 drew to the court's attention the fact, which he had just noticed, that on the top of the front page of each photocopy a vehicle registration number had been inked in. Whatever be the explanation for the inking in, there is no doubt from the deposition by Inspector Dahmad (PWD19) that the numbers inked in do represent the Malaysian Registration numbers given to cars bearing those chassis numbers.

I am satisfied that those green registration books must have been submitted to the Malaysian Road Transport Department at a time stolen cars number 1, 2, 6, 7 and 10 shipped to Richard Ho were first registered in Malaysia. I say that despite a small discrepancy between the chassis number registered in Hong Kong for vehicle 10 (see Exhibit P83) and the chassis number in Exhibit P141 (e). Bearing in mind the identical engine numbers of the vehicle registered in Hong Kong as AA906 and the vehicle registered in Malaysia as WBR7755 (see deposition of Inspector Dahmad PWD19) and taking into account Exhibit P146 produced by Au Chi Cheung (PW17) when he was recalled and Photograph Exhibit P98 (f) (7) I am satisfied that there must have been an error in the records of the chassis number with the Hong Kong Transport Department.

Although Mr. Annamalai A/L Arunchalam cannot specifically recollect the registration numbers of cars he registered for Richard Ho the inference is overwhelming that those books must have been submitted by Richard Ho or provided by him to the person who registered the vehicle on his behalf. The inference that these books, in the form they were in when submitted to the Malaysian Transport Department, were forgeries is overwhelming. Not merely is there the evidence of Yeung Siu Hong (PW13) that in respect of 4 of the 5 books (P141 (a), (b), (c) and (e)) the name entered in the book was the name of a customer of Zung Fu who did not buy a vehicle of the chassis number recorded in the book but there is also the fact that with the exception of vehicle one the stolen cars in question were manufactured after 1987 (see Hong Kong Certificates of Particulars of motor vehicles) whereas the Registration books (Exhibits P141 (b), (c), (d) and (e) are all dated in 1987. I infer that at least four of the five books (Exhibit P141 (a), (b), (c) and (e)) were supplied by Zung Fu pursuant to the request of Richard Ho I have referred to earlier. It was therefore Richard Ho who made the request to Zung Fu for the documents which enabled the stolen vehicles to be registered in Malaysia.

I do not believe that D1 would have exported stolen cars to Richard Ho without Richard Ho being party to the project. The risk of Richard Ho discovering the truth and thus exposing D1 would have been far too great. Richard Ho ran a motor car company, Meyer Motor Company, and thus would be experienced in that field. He would have had no difficulty in distinguishing a virtually new 1989 model from a car registered two years previously in 1987 as the German registration books would appear to indicate. But even without that evidence his suspicions would have been aroused by the fact (which was drawn to his attention - see deposition of Hussin B. Ibrahim PWD5) that every single engine and chassis number was incorrectly stated in the shipping documents. There also would have been an unacceptable risk that, if defects appeared in any of the 12 cars Ho had sold in Malaysia, Richard Ho might have contacted the manufacturers or their local or Hong Kong agents and D1 would have been exposed.

I am satisfied that D1 did conspire with Richard Ho dishonestly to undertake or assist in the removal, disposal and realization of these stolen cars."

8. Mr. Ho submitted that it would have been insufficient if the trial judge had concluded no more than that the goods were stolen. He submitted, quite rightly, that the judge must be satisfied beyond reasonable doubt that the first applicant knew that they were stolen at the time when he handled them. He contended, correctly, that the Crown had not produced any direct evidence that the applicant had such knowledge, but had relied upon what he termed "indirect evidence" to satisfy the judge that he could properly infer such knowledge. Mr. Ho, again correctly, outlined the evidence upon which the judge relied when drawing that inference. The four principal matters were: (i) the cars were, in fact, stolen; (ii) the circumstances of the shipping of the cars, particularly the documentation connected therewith; (iii) the lie told by the first applicant regarding the moneys which the trial judge was satisfied emanated from Richard Ho; and (iv) the money transactions themselves.

9. It was Mr. Ho's submission that the above evidence was not sufficient to support an inference of guilt or, alternatively, that such an inference was not the only inference open.

10. There was no doubt that the 12 cars transported to Malaysia were stolen vehicles and that the shipping of those vehicles was arranged by the first applicant. It was also not in issue that in each case the engine number and the chassis number was wrongly typed. It is also to be noted that the figures typed were such that, in any individual case, the difference between the typed number and the real number was so small that it could have been a typing error.

11. The first applicant gave no evidence but said in a cautioned statement which he made to the police that he was merely acting as the agent for Leung Chi Wing when making the shipping arrangements. He stated that Leung was a friend of his whom he had known for about 7 months and who drove container trucks. The first applicant went on to state that he had booked 12 container spaces for Leung and that each time he booked one he received $10,000 from him. The judge was satisfied that this explanation was "demonstrably a lie". The trial judge was satisfied that within the period of the conspiracy, Richard Ho, to whose company the cars were consigned, had transferred, either directly or indirectly to the first applicant, a sum of $1.48m. It cannot be suggested that this was not cogent evidence against the first applicant. However Mr. Ho submitted that the trial judge had, when inferring guilty involvement in the conspiracy from this evidence, failed to recognize that another inference, not consistent with guilt, was open to be drawn therefrom. He relied, when making this submission, upon the exculpatory parts of the cautioned statement. He submitted that it was a mixed statement which the judge was not entitled to ignore and that if he had given it proper consideration he must have been left in doubt as to whether he could draw an inference to the exclusion of other inferences of guilty involvement in the conspiracy. Mr. Ho conceded that the judge would have been entitled, having considered the exculpatory parts of the statement, to have rejected them but submitted that he had wholly failed to give them any consideration. We find it difficult to see how this submission can be properly advanced. The judge said:

"Neither defendant gave evidence or called any witness on his own behalf. Each however had elected to answer at least some of the questions put to them by the Police under caution. The essence of what D1 said was that he was merely acting as an agent for Leung Chi Wing (formerly D4) in making the shipping arrangements for him. All he knew was that second hand cars were being shipped and his only remuneration was HK$10,000 for each container."

He clearly did consider the exculpatory parts of the cautioned statements and it is plain from the findings which he made that he rejected them. He was satisfied that the first applicant's explanation was "demonstrably a lie". There is, we are satisfied, nothing in the first two grounds.

"3. That on the charge involving the conspiracy to handle stolen goods, there was insufficient evidence for the learned Trial Judge to infer and conclude that the 1st Appellant was the party to a conspiracy to ship the stolen cars to Malaysia;"

12. The arguments advanced under ground 3 were essentially the same as those advanced in relation to grounds 1 and 2 and we reject them for the same reasons.

13. Ground 4:

"4. That the learned Trial Judge erred in that he had improperly compared the cautioned Statement of the 1st Appellant with that of the 2nd Appellant and had wrongly drawn inferences thereat and concluded that the 1st Appellant was a liar;"

14. Mr. Ho, when making his submission on this ground, relied upon the following passage:

"Neither defendant gave evidence or called any witness on his own behalf. Each however had elected to answer at least some of the questions put to them by the Police under caution. The essence of what D1 said was that he was merely acting as an agent for Leung Chi Wing (formerly D4) in making the shipping arrangements for him. All he knew was that second hand cars were being shipped and his only remuneration was HK$10,000 for each container (see Exhibits P1-P8). D2 said that he operated Henry Trading Company with D1, that as far as he knew his company had not had any business dealings with Malaysia nor had it handled 'consignment formalities on behalf of the client to place an order with the Shipping Company'. When asked 'Do you know the Malaysian Richard Ho?" he replied "I don't know him' (Exhibits P9-16). He claimed that two deposits of $150,000 and $155,000 paid into his bank account in 1989 were from investment in real estate and decoration and design work in Taiwan."

Mr. Ho submitted that this passage demonstrated that the trial judge had improperly compared the two cautioned statements, and, having done so, had "quickly concluded" that the first applicant was a liar. He submitted that the judge had used the second applicant's denial that he knew Richard Ho, which was clearly untrue, as material from which he could infer a guilty association between the first applicant and Richard Ho. We see nothing in the passage cited which gives any support to this submission. The trial judge was doing no more than indicating what each had said in his cautioned statement. There is nothing to suggest that he was comparing the two statements or wrongly using admissions in one against the maker of the other.

15. Ground 5:

"That the learned Trial Judge erred in that:

(a) he had wrongly concluded that the 1st Appellant, Henry Trading Company, Henry Transportation Company and one Richard Ho had no legitimate trading in 1989;

(b) he had drawn an erroneous inference that the payment from one Richard Ho to the 1st Appellant and/or to Henry Trading Company and/or Henry Transportation Company were the proceeds of sales of the stolen cars;

(c) he had wrongly concluded that the 1st Appellant had deliberately made a wrong entry of the serial numbers regarding the cars that were shipped to Malaysia for gain with knowledge that those cars were stolen properties;

(d) he had improperly inferred on the evidence of communication between the 1st Appellant and one Richard Ho and wrongly concluded that the 1st Appellant must have knowledge of the cars he shipped to Malaysia were stolen properties;"

(e) This ground was not pursued.

The complaint in ground 5(a) is made in relation to the observation of the trial judge made when dealing with the $1.48 m which, he was satisfied, was transferred by Richard Ho to the first applicant. He dealt firstly with two cashier orders, one of $150,000 and one of $250,000 purchased by Richard Ho which were directly payable to the first applicant and to nine bank drafts totalling $450,000 which were bought by Richard Ho's wife at Richard Ho's request and made payable to the first applicant to enable, as the wife said, "my husband to purchase cars in Hong Kong". The judge noted in his findings that there had been evidence of legitimate trading between the first applicant and Richard Ho from March 1984 to March 1988 which involved the purchase by Richard Ho of 17 vehicles from Zung Fu. There was, however, no evidence of any other trading. Objection was taken to the following observation by the judge:

"In the absence of evidence of any legitimate trading between D1, Henry Trading Company or Henry Transportation Company and Richard Ho in 1989, I would have inferred that such sums were payments by Richard Ho for the stolen vehicles."

Given that the vehicles were stolen, that the first applicant through Henry Trading Company sent them to Malaysia, that they were received there by Richard Ho, that there was no evidence of any legitimate trading, we are satisfied that the trial judge was entitled to make the observation which he did. All of the facts pointed to the payments having been made in relation to the shipment of stolen vehicles.

16. As to Ground 5(b) : Mr. Ho submitted that there was no sufficient link shown between the moneys paid by Richard Ho to the first applicant and the proceeds of the sale of the stolen cars. It is true that there was no direct evidence to establish that the moneys paid were the proceeds of the sales. Where, however, in circumstances such as obtained here, the consignee of stolen cars pays money to the person who arranged to ship them and that person lies about receiving the payments and there is nothing to suggest that the payments were innocently or legitimately made, we are satisfied that there is sufficient evidence to support an inference that the moneys were the proceeds of the sale.

17. As to Ground 5(c): the judge did not specifically find that the discrepancies were the concoction of this applicant. That he did not do so is, in our view, of no real significance, as he was not relying when convicting this applicant upon his having concocted the discrepancies. What he relied upon was that this applicant made the arrangements for the shipping, which involved the use of false numbers, and lied about the receipt of moneys connected therewith. Mr. Ho suggested that the judge should have considered the possibility that the applicant, acting innocently, was supplied with false particulars. The suggestion was that they might have come from Leung. Such a suggestion could clearly not be accorded weight as the judge rejected any such possibility, being satisfied that the applicant had lied when he said that he had done the shipping for Leung. We are unable to see any force in this submission.

18. In Ground 5(d) Mr. Ho suggested that the trial judge improperly inferred from the evidence of communication between the first applicant and Richard Ho that the first applicant had knowledge that the cars were stolen. It is incorrect to suggest that the trial judge inferred such knowledge from this fact alone. He was clearly using the evidence of association and communication as part of the overall evidence from which he was satisfied he could properly infer guilty involvement by the first applicant in the conspiracy.

19. Ground 6:

"That in all circumstances of the case, it is unsafe and unjust to convict the 1st Appellant on the said charge of conspiracy to handle the stolen goods, namely the stolen cars."

We are satisfied that there was compelling evidence of complicity on the part of the first applicant in the conspiracy to handle the stolen goods and that the trial judge was quite right to draw the inference which he did.

20. The final complaint of Mr. Ho is made with regard to the following observation of the trial judge:

"Coupled with the evidence of association, which if it stood alone would merely make it less probable that D1 would not appraise Ho of the origin of the stolen vehicles, is the evidence of Yeung Siu Hong (PW13) of Zung Fu of the supply to Richard Ho at his request of 20-30 green German vehicle registration books which related to vehicles which had previously been imported by Zung Fu other than those Ho had bought from Zung Fu. Some of the books were supplied to Ho through D1. I am satisfied from the evidence of Annamalai A/L Arunachalam (PW8) that such a book was one of the documents normally required for the registration of a German vehicle in Malaysia."

It was suggested that the trial judge was here applying the lesser civil onus of proof, having lost sight of the fact that the onus on the Crown was to prove guilt beyond reasonable doubt. We are satisfied that the judge was here saying no more than that, while evidence of association between the first applicant and Ho would make it probable that the first applicant would tell Ho the origin of the vehicles, there was evidence of a much more specific association with regard to the vehicles provided by the fact that Richard Ho had requested German vehicle registration books from Zung Fu of a kind needed to register German vehicles in Malaysia and that these books had been supplied to him through the first applicant. The judge was emphasizing that the evidence pointed to a highly suspicious association between the first applicant and Richard Ho involving the obtaining of documentation that could be used in Malaysia for registration of the stolen vehicles. We reject any suggestion that the trial judge was here confusing the onus of criminal proof with that applicable to civil trial.

21. We turn now to the grounds argued for the second applicant.

22. Before considering them it is necessary to set out the judge's findings as follows:

"The evidence of the 2nd defendant's involvement in this conspiracy is simple and overwhelming.

The shipping of each one of these stolen cars was done in the name of Henry Trading Company, a firm which was registered in his name as sole proprietor. I have no reason to doubt D2's statement to the police that he operated this firm jointly with D1. The question I must consider is whether there is a possibility that D1 could have used the firm name in making these shipping arrangements without the complicity of D2 in the scheme. I am satisfied that on the evidence there is no such possibility.

D2's fingerprints appeared on four of the collection orders in relation to the containers used to ship stolen cars (Exhibit P55(1), (3), (7) and (11). His fingerprints appeared on one of the Acceptance Orders (Exhibit P55(8)) used when a loaded container was delivered to the godown. I do not believe, bearing in mind the number of fingerprints and the fact that a fingerprint appeared on an acceptance order which was not the top document in the series of documents (see Exhibit P47), that D2's fingerprints could have been placed on the documents while they were blank stationery kept at Henry Transportation Company. It clearly indicates that D2 was a party to the practical side of the shipping of at least some of the stolen vehicles. It is curious to say the least that D1 should have involved D2 in the practical aspects of his criminal enterprise if D2 was not party to it bearing in mind that there is no obvious reason why D2 should necessarily have been party to this aspect.

Still more curious if D2 was not a party to the enterprise is the evidence of bank drafts for $240,000 and $390,000 issued by the Oriental Bank at the request of the Malaysia Finance Company and which were directly connected to the stolen cars. Firstly they were not negotiable and they were made payable to the Henry Transportation Company. One might have imagined, if D2 had not been a party, that D1 would have stipulated that the payments be made to an account which would not necessitate an explanation to D2 of the deposits. Secondly and much more significant is that after those drafts were deposited in the account of Henry Transportation Company: (i) it should be D2 who immediately authorized the transfers for the $390,000 to D1's personal account indeed it seems probable from the time chops on the credit and debit slips (Exhibit P132) that D2 actually paid in the bank draft for $390,000 and (ii) in the case of the $240,000 it should be D2 who 4 days later authorized a roughly similar sum ($245,000) to be transferred to Henry Transportation Company's current account and then immediately transferred $210,000 from that account by way of cheque to D1's personal account and the following day transferred a further $30,100 by way of cheque to D1's personal account. D1 was signatory to the account of Henry Transportation Company into which the Oriental Bank drafts were deposited. If this enterprise did not involve D2 one would have expected D1 not to involve D1 in the transfer of the proceeds of the criminal enterprise.

The inference that I am urged to draw that D2 must have been involved in the conspiracy is confirmed:

(i) By his denial when asked by the police if he knew 'the Malaysia Richard Ho'. Cheng Chin Cheung (PW15) testified that he had seen D2 with Richard Ho on 3 separate occasions and no suggestion was made that he might be mistaken in his identification. I am satisfied that that was a lie to exculpate himself from his involvement in the conspiracy with D1 and Richard Ho.

(ii) By the evidence of the two sums of $150,000 and $155,000 deposited into D2's account emanating from D1's savings Account. In the light of all the evidence including the fact that on the very day (12-7-89) six bank drafts totally $300,000 from Richard Ho's wife were deposited into D1's personal account he should buying a bank draft for exactly half that sum payable to D1 the only reasonable inference is that those sums emanated from this criminal enterprises. That inference was not displaced in my mind by his bald assertion to the police that the sums were from investment in real estate and decoration and design work in Taiwan (Exhibit P11).

I am satisfied that the evidence leads irresistably to the conclusion that D2 was not merely involved in disposal of the proceeds of the shipment of stolen cars but was party to the conspiracy with D1 and Richard Ho dishonestly to undertake or assist in the removal, disposal and realization of these stolen cars."

23. Ground 1:

"In convicting the Applicant, the Learned Trial Judge erred in law in that:-

(a) he failed to make any finding of fact in relation to a vital element of the offence charged, namely, that the Applicant had, at any time, known or believed that the vehicles were or were to be stolen goods; and

(b) he failed to direct himself that there was no evidence to establish this vital element beyond reasonable doubt."

This submission stems from the passage in the Reasons in which the trial judge stated himself to be satisfied as to the guilt of the second applicant where he said:

"I am satisfied that the evidence leads irresistably to the conclusion that D2 was not merely involved in disposal of the proceeds of the shipment of stolen cars but was party to the conspiracy with D1 and Richard Ho dishonestly to undertake or assist in the removal, disposal and realization of these stolen cars."

Mr. Ching Wong points to the particulars of the offence which require the Crown to establish that the present charge dishonestly undertook or assisted in the retention, removal or disposal or realization of certain stolen goods, knowing or believing the same to be stolen goods. He submits that nowhere has the trial judge made a finding that the applicant knew the goods to be stolen and that there was no evidence from which he could properly have come to such a conclusion. He submits that the trial judge was quite wrong to hold that the second applicant's "involvement in this conspiracy is simple and overwhelming" contending that there was in fact no sufficient evidence to come to any such conclusion.

24. When coming to his finding of guilt the judge relied upon the fact that the second's applicant's fingerprints appeared on four of the collection orders in relation to the containers used to ship four of the stolen cars. His fingerprints also appeared on one of the acceptance orders used when a loaded container was delivered to the godown. Given that a fingerprint appeared on an acceptance order which was not the top document in the series of documents, he was satisfied that the second applicant's fingerprints could not have been placed on the document while it was being stored as blank stationery at Henry Transportation Company. He noted that the bank drafts of $240,000 and $390,000 issued by the Oriental Bank at the request of the Malaysia Finance Company, and which were directly connected with the stolen cars, were not negotiable and were made payable to Henry Transportation Company. He noted that the second applicant authorized the transfer of $390,000 to the first applicant's personal account and that, four days after the payment in of the $240,000, he authorized a roughly similar sum, $245,000, to be transferred to Henry Transportation Company's current account and then immediately transferred $210,000 from that account, by way of cheque, to the first applicant's personal account and the following day transferred a further $30,100, by way of cheque again, to the first applicant's personal account. He was clearly satisfied that these matters were cogent indicators of the involvement of the second applicant in the conspiracy. He went on to say that this inference was confirmed by the fact that he had lied about knowing Richard Ho and the fact that two sums of $150,000 and $155,000 were deposited into the second applicant's account which emanated from the first applicant's savings account. The judge was particularly impressed by the fact that on the very day when drafts totally $300,000 from Richard Ho's wife were deposited into the first applicant's personal account he bought a draft for exactly half that sum payable to the second applicant. The judge was satisfied from all this evidence that he could properly infer that the second applicant was a party to the conspiracy. We are satisfied that this evidence was sufficient to support such an inference.

25. We turn then to consider the contention that, because the judge failed, in the passage set out above, to echo the words of the charge, i.e. "knowing or believing the same to be stolen goods", he, in fact, came to no such conclusion. When we look at that passage, and particularly at the finding that the applicant was "a party to the conspiracy", we have no doubt that the judge was finding and had concluded not only that he was party to the conspiracy to transport stolen vehicles but also that he knew that those vehicles were stolen.

26. Ground 2:

The Learned Trial judge erred in law in drawing the following inferences upon which he based the conviction of the Applicant, namely:

(1) that the Applicant was 'clearly' indicated to be a party to the practical side of the shipping of at least some of the stolen vehicles because of the evidence in relation to the Applicant's fingerprints being found on certain documents; and

(2) that the Applicant was a party to the conspiracy and was involved with the enterprise because of the evidence in relation to the amounts of $240,000 and $390,000 being deposited into the account of Henry transportation Company and were transferred to the 1st Defendant's personal account;

in that he failed to direct himself that:-

(a) the evidence was such that they could fairly admit of inferences other than that of guilty being drawn;

(b) where there was more than one reasonable inference which could be drawn from the evidence, the one most favourable to an accused should be drawn whether or not the inferences were equally reasonable;

(c) where the evidence was as susceptible to a conclusion other than guilt as it is to one of guilt, an accused was entitled to the benefit of the ensuing doubt even if the Court was of the opinion that guilt was probably the correct conclusion."

27. As regards the fingerprints the judge was satisfied that they clearly indicated that the second applicant was "a party to the practical side of the shipping of at least some of the stolen vehicles". While he found this as a fact, he drew no inference from the existence of that fact alone. As to the payments of $240,000 and $390,000 he noted what had occurred in each case stating that it would be "curious if D2 was not a party to the enterprise" that this should occur. He did not, as this ground suggests, draw an inference from the existence of either of these two payments standing alone. Indeed he recited them initially simply as established facts. Only when he put them together with the lie about Richard Ho and the evidence about the deposits by the second applicant into the first applicant's account did he find himself to be satisfied that "the evidence leads irresistibly to the conclusion that D2 was not merely involved in dispose of the proceeds of the shipment of the stolen cars but was a party to the conspiracy ..." He clearly drew the inference of guilt from all of the facts which he found to be proved and was satisfied that it was the only inference that could properly be drawn therefrom.

28. We are satisfied that there is nothing in this ground.

29. Ground 3:

"The Learned Trial Judge erred in his finding that 'the inference that D2 must have been involved in the conspiracy' was 'confirmed' by:-

(i) the Applicant's denial that he knew 'the Malaysian Richard Ho'; and

(ii) the inference that the two sums from D1's saving account deposited into the Applicant's account 'emanated from the criminal enterprises'."

Before turning to consider this ground we deal with the suggestion, made in the course of argument, that the Reasons as set out indicate that the judge was relying solely on the fingerprints and the evidence relating to the amounts of $240,000 and $390,000 when coming to his conclusion of guilty involvement and that he only went on to consider the other matters as confirmatory of that conclusion. We are satisfied that the reasons, properly read, indicate that the judge considered all of the matters which we have set out when dealing with Ground 1 before finally coming to his conclusion as to the guilty involvement of the second applicant.

30. The complaint in Ground 3 is that the judge, when he used the word "confirmed", which is not a legal concept, was indicating that he felt it necessary to look for evidence which corroborated the earlier evidence to which he had referred. We reject this suggestion. The trial judge was doing no more than, having indicated evidence which he considered would be capable of supporting an inference of involvement, looking at other evidence which confirmed, i.e. strengthened, that inference.

31. Implicit in our rejection of the suggestion that the judge felt that he was required to look for corroboration is our rejection of the further suggestion that he wrongly used the lies about Richard Ho as corroboration. The judge did no more than state that he was satisfied that the applicant had lied about a material matter, i.e. his association with Richard Ho, and that had done so in order to exculpate himself from his involvement with Ho and the first applicant in the conspiracy. The trial judge did not draw any inference from this lie standing alone but, as he was entitled to do, put it together with all of the other evidence when coming to his conclusion. He made similar use of the evidence as to $150,000 and $155,000. He did not draw any inference from that evidence standing alone but put it together as he was entitled to do, with the other evidence when determining whether or not the evidence overall was sufficient to support an inference of guilty involvement. This ground also, we are satisfied, must fail.

32. Both applicants are refused their applications for leave to appeal against conviction.

Representation:

Mr. J.W. McMaster (Crown Prosecutor) for the Respondent.

Mr. Kenneth Ho (Messrs. Van Langenberg Lau & Lai) for the 1st Applicant (D1).

Mr. Ching Y. Wong, Q.C. & Ms. Sabrina See ( Messrs. King & Co.) for the 2nd Applicant (D2).