The Queen v. Mok Ming and Another

HCMA000257/1988

Mag. Criminal Appeal

1988, No. A257

(Criminal)

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H E A D N O T E

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Voir dire - inconsistent rulings - no reasons given by magistrate - Li Kar-wah applied.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACRY CRIMINAL APPEAL NO. 257 OF 1988

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Dates of judgment: 19th and 20th May 1988

Date of delivery of judgment: 3th June 1988

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J U D G M E N T

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1. 1st appellant was convicted of theft and 2nd appellant of handling stolen goods by Mr Wahab at Tsuen Wan Magistrates Court. Each was sentenced to four months imprisonment. There were eight defendants, altogether, of whom three pleaded guilty, three were convicted and two were acquitted.

2. The case arose out of a surveillance operation by the ICAC, concerning deliveries of cotton yarn the property of Chip Tak Weaving Factory Limited. The prosecution witnesses included employees of the latter company, ICAC officers and a lorry owner. The defendants did not give evidence or call witnesses.

3. The magistrate said he found the following material facts :-

"(1)    Chip Tak Weaving. Factory Limited ('Chip Tak') had 3 factories : the spinning factory at 91 mile-stone Castle Peak Road; the weaving factory at 105 Ta Chun Ping Road, Kwai Chung and the dyeing, factory at 14 Ma Kwok Street, Tsuen Wan;

(2)    Chip Tak engaged the services of Hoi Kee Transportation Company ('Hoi Kee') to transport its cotton yarns from the spinning factory to the weaving and dyeing factories as well as to other customers;

(3)    Hoi Kee used 2 -lorries : BN3135 and BV7450. Hoi Kee worked exclusively for Chip Tak;

(4)    Amongst the employees of Hoi kee was D5 who worked as a driver;

(5)    Lee Shing Ho was a business owned by D6 with shop-premises at 168/176 Block 15 Lei Cheng Uk Estate; D7 and De helped D6 to run the business;

(6)    Chip Tak never had any business dealings with Lee Shing Ho;

(7)    On 12 February 1987 at about 11.50 am D5 drove lorry BN3135 from Chip Tak's spinning factory loaded with Chip Talc's cotton yarns. On board were 3 other transportation workers from Rod 1Lee (D1 to D3);

(8)    BN3135 was eventually driven to Chip Tak's dyeing factory where more than 1/2 of the cotton bales were unloaded. BN3135 then vent to the rear entrance of a Yam Hop Hing Industrial Building at Fui Yiu Kok Street;

(9)    Whilst at Fui Yiu Kok Street, D2 and D3 delivered 30 odd bales of cotton yarns from BN3135 into the industrial building;

(10)    When D2 and D3 were inside making the delivery, Dl unloaded about 20 bales of` cotton yarn from BN3135 onto the pavement with D5 watching;

(11)     Eventually D2 and D3 emerged, looked at the bales of cotton yarn on the pavement and then chatted with D5;

(12)     After a while, a small lorry.BE574 arrived. D1 signalled to D5 who then drove BN3135 a short distance away thus making room for BE574;

(13)     BE574 was driven by PU3 who was also its owner

(14) On board BE 574 were also D7 and D8;

(15)     BE574 parked next to the cotton bales on the pavement;

(16)     D1 then spoke to D8 whilst D2 and D3 talked to D7; shortly afterwards, D5 drove away BN3135 with D1 to D3 on board;

(17)     D7, D8 and PW3 then loaded the cotton bales from the pavement onto BE574; PW3 then drove away with D7 and D8;

(18)      BE574 was driven to Lei Cheng Uk Estate where D7 and D8 unloaded the cotton yarn bales onto the open space between Block 14 and 15;

(19)     D8 paid PW3 who then left;

(20)     D7 and D8 replaced the white nylon strips binding the cotton yarn bales with green nylon strings. They then moved the bales into Unit 168 of Block 15;

(21)     At about 5 pm on 24 February 1987 PW6 and other ICAC officers went to this Unit 168. On their arrival, they asked for the proprietor of the shop. D6 identified himself as the proprietor. The, shop/premises was called Lee Shing Ho;

(22)     The ICAC officers found from Unit 5/15 of Block 14 Lei Cheng Uk Estate 3 bales of cotton yarn. From Unit 168/176 of Block 15 they found, inter alia, 36 bales of cotton yarn;

(23)     At around 5.15 pm on the same day, PW2 attended Lee Shing Ho's premises at Unit 168/174 Lei Cheng Uk Estate. There he identified some 39 bales of cotton yarn as belonging to Chip Tak;

(24)     On 24 February 1987 D5 made a cautioned statement (EXH. P5) and the next day he made a further cautioned statement (EXH. P6);

(25)     On 11 March 1987 D6 made a cautioned statement (EXH. P3)."

4. Mr Ho, for 1st appellant, submits that there was insufficient evidence to prove that the 20 bales were stolen from Chip Tak on12th February. He says there was no evidence they were among the 39 bales found on 24th February. Chip Tak's books for 12th February indicate that only 38.95 bales left the spinning factory that day, all of which have been accounted for. If a much larger quantity had been smuggled out, that would have been noticed by those responsible for checks. Finally, there was no evidence that the lorry was empty before it left the factory. If the defendants had been moonlighting and selling yarn for other factories, this might account for the 20 bales on the pavement.

5. So far as the latter point is concerned, it is totally unsupported by any evidence and is pure speculation. The lorry was. under observation from 8.15 am, when it was parked outside the factory.

6. The chain of evidence led inexorably from the factory to Block 15, Lei Cheng Uk Estate. In the light of the undisputed evidence that Hoi Kee carried exclusively for Chip Tak and the magistrate having accepted Mr. Shu's identification of the 39 bales, he was entitled to conclude that 20 of these bales were those offloaded from the lorry on 12th February and were the property of Chip Tak. Mr. Ho argued that Mr Shu's evidence was inadmissible against his client because he was not charged with handling. That cannot be right. Where an alleged thief is jointly charged, evidence may be led to prove ownership of property that he himself has been identified as delivering.

7. Mr. Ho's main complaint, however, was that the magistrate ignored, or discounted, the documentary evidence. I think he was right to do so. There is no dispute that the capacity of lorry no. BN3135 was 320 bales. Mr. Yip's evidence that it was fully loaded, when it left on its second trip that day, at 11.50 am, was not challenged. Nor was his evidence that more than half the load was unloaded at the dyeing factory and a further 30 odd bales at Westminster. Mr. Yip said that there were then only 20 odd bales, remaining on the lorry, which were unloaded on the pavement. There were, therefore, at least 210 bales on the lorry when it left the factory; in other words it was at least two thirds full. Of course Mr. Yip did not know the exact capacity of the lorry.

8. That evidence totally contradicts the extract from the factory's books, which shows that only two deliveries, totalling 38.95 bales, were made on 12th February. Nor does it take into account the fact that the lorry had already made an uneventful trip that morning.

9. The employee responsible for the preparation of cargo delivery orders, Mr. Hui Chin Han, said that he checked the goods stated in the delivery orders, that the vehicle should not contain anything not covered by these orders, but he admitted that he had not checked the lorry itself. The fact that 33.95 hales were proved to have reached their lawful destination does not, therefore, help 1st appellant's case. The only reasonable conclusion is that a great many more bales, than were recorded in the books were somehow smuggled out of the spinning factory that day.

10. Mr. Ho also submits that the conviction is unsafe and unsatisfactory because:-

a)     The magistrate, in the course of argument with 2nd appellant's counsel, referred to 1st appellant's cautioned statement. Mr. Ho argues that he might therefore have used 2nd appellant's cautioned statement against his client.

The magistrate does not hint in his statement of findings that he did any such thing. There is no merit in this ground.

b)     The magistrate failed to consider the evidence against each defendant separately, in particular that the finding of the yarn in Lei Cheng Uk Estate was irrelevant to the guilt or innocence of 1st appellant. I have already stated my view that this was relevant evidence. There is no indication in the record that the magistrate failed to consider the evidence against each defendant separately.

c)     The cautioned statements of 1st appellant were wrongly admitted, because the answers were obtained by cross-examination and by questions that were 'leading, confusing and double or triple in meaning.'

11. The questions were direct and penetrating, but neither confusing nor capable of different meanings. It is true that some were leading but not to such an extent that the magistrate would have been justified in excluding them in the exercise of his discretion. Nor was there anything in the nature of a trick or trap.

12. The general tenor of both statements was one of unreserved confession. The fact that 1st appellant gave the impression that the stolen yarn became available exclusively as a result of short delivery at the dyeing factory does not detract from his acknowledgement that he knew they were stealing, he may have been trying to protect colleagues at the spinning factory, or indeed may not have known the details of the operation; he was just the driver and received only $420. The magistrate was entitled to place weight on the statements once he had found there was no substance in the allegations of threats and inducements and that they were admissible.

13. There was, therefore, cogent evidence on which to convict 1st appellant and his appeal against conviction is dismissed.

14. Regarding sentence, I think four months was too severe, having regard to 1st appellant's minor role as the lorry driver and to his meagre reward. Those who pleaded guilty to this charge received two months. This would have been a proper sentence for this appellant after trial.

15. He has served 12 days in prison. His wife has had a stroke in the course of the trial and needs looking after at home. He has retired at the age of 63 and does not intend to work again.

16. In these circumstances I am reluctant to return him to prison and, as an act of mercy, reduce the sentence to one month imprisonment, suspended for two years. To this extent the appeal is allowed.

17. 2nd appellant's case is rather different. Convicted of handling as he is, it is conceded by counsel for the Crown that the identification of the yarn in his premises as the stolen property is insufficient, on its own, to prove guilty knowledge or belief. The only evidence of this lies in the cautioned statement that was admitted as Exh.P.3.

18. 2nd appellant made three statements altogether, one on 24th February, the day of his arrest, one on 25th February and one on 11th March. The first two statements were challenged, on the grounds that he was told he would get a lighter sentence if he confessed and that other members of his party had already done so. It was alleged that the third statement was taken after he was told he would get into trouble if he did not confess. The magistrate admitted only the third statement, but gave no reasons for his decision, other than the comment in his statement of findings "I admitted only one (EXH. P.3). As to the other 2 (EXH PP1 and PP2) I was not satisfied that the Crown had discharged its burden of proof (though I disbelieve the allegation by the defence)."

19. Presumably the magistrate means by this that the third statement was proved to be voluntary, but not the first two. The difficulty this court now finds itself in is that the former was taken by Mr. Yip Kar-kwai, who was also a witness to the first statement. If the magistrate believed Mr. Yip as to the manner in which the third statement was taken, as he must have done, it is hard to understand, in the absence of reasons, why he did not believe his evidence as to the first statement:

20. In Cheng Ho-shing v. R.⁽¹⁾ the District Judge gave no reasons for finding the statements voluntary. Silke, J.A. said at P.3 :-

"This is not a practice we would encourage. We appreciate that reasons may be contained in the statutory reasons for verdict and not be given at the time of the ruling ....... Because of this lack it is open to Mr Rernacchi to submit to us that we are entitled to consider all the evidence which was before the trial judge. "

The matter is therefore at large, so far as this appeal is concerned.

21. After the voir dire Mr. Yip continued his evidence, which included an account of what 2nd appellant had said to him under caution at the time the yarn was identified. This amounted to an unequivocal confession that he knew it had been stolen from Chip Tak. In his statement of findings the magistrate said he was not satisfied that this had been said. Again he gives no explanation for this conclusion, but he continues 'Apart from this particular aspect, l found all the Crown witnesses (including; PW6) to be honest and reliable'. PW6 was Mr. Yip.

22. It is surprising, to say the least, that the rejection of Mr. Yip's evidence on that occasion had no apparent effect on his assessment of the statement Exh. P.3, to which he says he gave full weight.

23. Mr. Yip undoubtedly lied when he said that the opening paragraph of the first statement, which contained an admission that 2nd appellant had earlier made a verbal confession, was volunteered by 2nd appellant-without prompting, or editing by Mr Yip himself. This is apparent from the wording of the statement.

24. In Li Kar-wah and another v. R ⁽²⁾ the Full Court held that :-

"The onus of proof necessarily involved the prosecution satisfying the magistrate that the statements were made in the manner in which the police officers positively affirmed that they were made, because if the police officers evidence as to that was not believed that was sufficient to raise doubts as to the voluntary nature of the statements."

25. Having regard to the fact that Mr. Yip's evidence has apparently not been accepted in respect of two out of three statements and has also been rejected in respect of 'the verbals', there would seem to be grave danger in placing any weight on the statement that was admitted.

26. Had the magistrate given his reasons for resolving the obvious contradiction in favour of the prosecution this situation might not have arisen.

27. An essential ingredient of the offence not having been proved, the appeal must be allowed, the conviction quashed and the sentence set aside.

(1) No. 356 of 1981

(2) 1970 H.K.L.R. 572

Representation:

Mr. J.L. Saunders for Respondent.

Mr. B.K. Ho (inst'd by M/s L.H. Kwan & Co.) for 1st Appellant.

Mr. G. Plowman & Mr. A. Chung (inst'd by M/s Chan, Lau & Wai) for 2nd Appellant.