HKSAR v. Sze Suen-tin and Another
Read the full judgment text of CACC 208/2002 on BabelCite. This Court of Appeal judgment was delivered on 5 June 2003.
1. On 30 April 2002, the Applicants (D2 and D4 respectively) were convicted, following a trial in the District Court before Deputy Judge A. Yuen, on a joint charge of conspiracy to handle stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap. 210, and sections 159A and 159C of the Crimes Ordinance, Cap. 200. They were each sentenced on the same day to four years and six months' imprisonment. They now seek leave to appeal against conviction and sentence.
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CACC000208/2002 CACC 208/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 208 OF 2002 (ON APPEAL FROM DCCC 686 & 1141 OF 2001 & 113 OF 2002) ______________
______________ Coram: Hon Stuart-Moore VP, Stock JA and Pang J Date of Hearing: 23 May 2003 Date of Judgment: 5 June 2003 _______________ J U D G M E N T _______________ Stuart-Moore VP (giving the judgment of the Court): 1.On 30 April 2002, the Applicants (D2 and D4 respectively) were convicted, following a trial in the District Court before Deputy Judge A. Yuen, on a joint charge of conspiracy to handle stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap. 210, and sections 159A and 159C of the Crimes Ordinance, Cap. 200. They were each sentenced on the same day to four years and six months' imprisonment. They now seek leave to appeal against conviction and sentence. 2.Originally, a total of seven defendants appeared on the charge sheet relating to this matter. D1 and D7 were alone charged with a conspiracy to steal (charge 1). D3, D5 and D6 were jointly charged with the same conspiracy (charge 2) as the Applicants in these proceedings. All of these co-defendants in both charges were acquitted. 3.The second charge on which D2 and D4 were alone convicted alleged that between 26 and 28 April 2001, they conspired with their co-defendants, and with others unknown, dishonestly to undertake or assist in the retention, removal, disposal or realization of 6,400 stolen computer hard disks, the property of Seagate Technology (Shenzhen) Limited, or dishonestly arranged to do so, knowing or believing the same to be stolen goods. 4.The broad background to the prosecution's case was largely undisputed and was set out by the trial judge in these terms:
5.In his defence, D2 testified that the company, Hang Kam, which he had started with D4 in about February 2001, although it was first registered on 15 March 2001, dealt in mobile telephones and computer parts. He said that when clients on the mainland ordered from companies in Hong Kong his company would receive instructions to collect the goods on their behalf. D2 would then unpack and repack the goods in order to reduce their bulk before they were distributed to couriers for delivery to the mainland. He produced various documents for the purpose of demonstrating that his company, where he had responsibility also for the accounts, had conducted legitimate business in the past. In regard to events directly relating to the present matter, D2's defence was summarised by the judge in the following way:
6.D4, who also gave evidence, described his responsibilities at Hang Kam as involving marketing, sales and customer liaison. The judge's summary of D4's defence was that:
7.There was no dispute at trial that the goods identified in the charge were stolen. The only real issue to be decided was whether D2 and D4 knew or believed that these goods were stolen when they were handled by them. D2's application on conviction 8.On D2's behalf, Mr McGowan submitted that the judge, in his Reasons for Verdict, had erred in a number of the findings he made as to fact. These appeared in the passages which read:
9.The errors which Mr McGowan alleged were contained in this passage were said, with the exception of the price of disks, to have specific application to D2 and related to the reference to a "total stranger" ('Ah Bo') having approached the company offering to sell 6,400 hard disks which the judge commented were worth "around $1,000 each at the material time"; the finding that "no name card was ever asked for" and that "the only thing D2 knew was the mobile phone number (of this stranger)"; that D2 had "no idea as to the source of these goods" and that it seemed as if "it was never D2's concern as to what would happen if these goods turned out to be defective or false". One other finding which was said to have been in error appeared in the passage in paragraph 4(5) (above), containing the "largely undisputed" background to the case, where the judge said that it was D2 who told PW14 that the goods which were taken to her home would be safer there than in the company's premises from a burglary point of view. 10.Dealing with the first of these points, D2 was asked if he had known the man (referred to by D4 as 'Ah Bo') who had come to his company's premises at night on 26 April 2001 with the stolen goods to sell. D2 replied that he had not seen him before. Whilst, as Mr McGowan accepted, it may be that D4 had been talking to 'Ah Bo' before D2 arrived at the company's premises on the night of 26 April 2001, this did nothing to diminish the accuracy of the judge's description of 'Ah Bo' as being a total stranger to D2. 11.Turning to the value of the computer hard disks, it had been agreed at trial that the "value" (whatever that term in the present context meant) of the stolen items was US$77 (approximately HK$600) for each disk, representing a total value for 6,400 disks of about HK$3,840,000. The judge had spoken of this in the "undisputed" background we have already set out. However, he also spoke of a value of around $1,000 for each computer hard disk in the following context:
The judge then continued in the terms we have set out in paragraph 8 (above). 12.It can readily be seen that the judge's valuation at $1,000 for '40 gigabyte' hard disks was based upon the figures provided in at least one Hang Kam invoice, produced by the defence, which related to a similar kind of hard disk to those with which we are concerned in these proceedings. Furthermore, D4 had accepted in evidence that he had known the value of such disks and that they were worth between HK$3 million and HK$6 million. We do not consider that in adopting D4's testimony the judge had fallen into error although it may be, as Mr McGowan himself had thought, that the $600 valuation represented the wholesale price and that $1,000 represented the retail price. However, as to this, we do not need to speculate. The fact remains that the disks were being offered at $300 each and the price on which a settlement was reached was $230, well under their true value by either standard. Price was, of course, an important consideration and the judge's eventual conclusion on this topic, that $230 was "ridiculously low compared with the ordinary price of $1,000", was justified on all the evidence and would equally have been justified if he had compared it to the $600 valuation given by the prosecution. 13.There were, having regard to the unusual circumstances in which the disks were received, several other equally, if not more, important factors besides price to be taken into account. In saying this, we have not lost sight of Mr McGowan's point that a bulk purchase such as this would also most likely have lowered the price. 14.As to most of the other matters raised under this ground, Mr McGowan complained that the evidence supporting the case against D2 on which the judge relied to find him guilty had arisen from the testimony given by D4 purely in relation to himself. However, D4's evidence was highly relevant in the broad context of what had been said and agreed in the course of the alleged conspiracy between D2 and D4 with others and the judge was entitled to take it into account when looking at the overall picture against D2. Factually, save on the last of the matters raised in this ground, the judge had been correct in the findings he reached and if, as seems likely on the last point, the judge was wrong about who told PW14 that the goods taken to her house would be safer from burglary than at the company's premises, it was a matter of little consequence. D2 had driven to PW14's house with some of the twenty boxes which were taken there. His explanation for this was that a space had to be cleared at the company for further goods to be stored which were expected that day. Leaving aside the abundance of space at the company's premises which is to be seen in the photographs or the fact that apart from this transaction all previous ones had involved comparatively small numbers of boxes, Mr McGowan was nevertheless strictly correct in saying that D2 had denied speaking to PW14 and in pointing out that it was D4 who had admitted speaking to her. Of far greater significance was the fact that within hours of the boxes of computer disks arriving at the Applicants' company's premises, many of them, once new wrapping had been put on them, were quickly removed to other places for storage. In this context, out of the 6,400 computer hard disks which found their way to Hang Kam, only 1,848 were recovered by the police. 15.The other features of the case, applying not only to D2 but also to D4, were summarised by the judge as follows:
16.We are satisfied that there was no real substance to the first ground of appeal. 17.In the second ground raised on D2's behalf, it was contended that the judge had not adequately distinguished between D2 and D4's respective roles in the company, particularly when considering how the negotiations on 26 April 2001 with 'Ah Bo' and the 'mainland boss', called 'Wong', were outside the scope of D2's usual responsibilities. It was argued by Mr McGowan that D2's role was to take care of the accounts whereas D4 had to look after clients, which included doing the marketing and the sales. Whilst D2 had conceded that he was in a "level and equal" partnership in the company, D2 had also said that D4 was in charge and that D4 would tell him what to do. In support of this aspect of the case, Mr McGowan relied on the fact that D4, who was a cousin of D2 and three years younger, had been in this sort of business since 1996, whereas D2 had said, in relation to his own experience:
18.Mr McGowan sought to show that D2 was in reality in a similar position to D5 who, as an employee of the company, had been acquitted. There was, in our opinion, much to distinguish D2's role from the part played by D5. D2 knew the way the business was run from his overall responsibility for the accounts which, in turn, would have enabled him, despite his denials, to understand the value of the commodities in which he was dealing. D2 was, on his own account, aware of the manner in which goods were ordered by customers from the Mainland, and he liaised with local couriers and transportation companies to take goods to the Mainland. D5, on the other hand, was not a business partner and the important distinction between his role and the roles played by D2 and D4 was summarised by the judge in these terms:
19.We were not persuaded either that the judge failed to give adequate consideration to D2's role or that in some way the judge may have confused the involvement of D4 in these events with the part played by D2. Accordingly, this ground must also fail. 20.The third ground of appeal raised by Mr McGowan was a criticism of the judge's concluding remark when convicting D2. This was to the effect that he was "satisfied beyond reasonable doubt" that D2 and D4 did agree with 'Ah Bo' to the disposal of stolen computer hard disks. It was contended that it was possible D4 had entered an agreement with 'Ah Bo' before D2 had returned to the company's premises at about 10.30 pm on 26 April 2001 and that D2 may never himself have been a party to it. 21.We were not persuaded by this argument. A conspiracy is usually, by its very nature, an ongoing and continuing offence. It may well be that D4 entered into a conspiracy with 'Ah Bo' at an earlier stage than D2, but D2, before setting off to the mainland on 26 April 2001 with D4 and D5, had seen a man, who could only have been 'Ah Bo', in the office. When D2 returned from the mainland, 'Ah Bo' was still there and, as to this, D2 referred to him in his evidence as "the male who I talked to earlier on". 22.The allegation in the charge against D2 and D4, and the other acquitted co-defendants in charge 2, particularised a conspiracy between themselves and others "unknown" to handle stolen goods. The judge was entitled to have concluded on the evidence he had heard that D2 and D4 had entered into a conspiracy with 'Ah Bo' whose real identity is apparently unknown. However, for present purposes, in law it mattered only that D2 was proved to have conspired with D4 to handle stolen goods and there was overwhelming evidence to that effect. This ground was without substance and fails. 23.The last ground amounted to a complaint that the judge had "descended into the arena" by his lengthy questioning of D2 at the completion of D2's cross-examination. The point was made that "over 40 questions" were asked by the judge and that many were detailed and went beyond what was necessary to clear up ambiguities. 24.Relying on a distillation of the principles emerging from a number of earlier decisions in Hong Kong and in England where similar complaints were made, taken from R v Yeung Mau-lam [1991] 2 HKLR 468 at 473, Mr McGowan laid emphasis on propositions (3), (4) and (5) appearing below which are taken from Power JA's judgment:
25.We have looked with care at the passages in the transcript to which our attention has been drawn. Many of the questions asked by the judge were in relation to one of the invoices which D2 had produced in order to show legitimate business dealings between his company and its customers on a previous occasion. Over twenty questions were first asked in relation to this invoice which the judge had selected as an example to understand D2's business methods. The invoice did not refer to any of the goods set out in the charge of handling stolen goods for which there were, of course, no documents at all. When the judge turned to the events with which we are presently concerned, the following dialogue, consisting of eleven questions, took place:
26.The midday adjournment followed at that stage and, although the judge asked a few more questions when the trial resumed, these were again aimed at understanding other invoices produced on D2's behalf. 27.It can readily be seen that the judge's questioning amounted to no more than a sensible and justified attempt to clarify some of the matters raised by D2 in his evidence. 28.There was no merit to this ground and it fails. 29.We are satisfied that the conviction in D2's case was neither unsafe nor unsatisfactory. Accordingly, his application relating to conviction is dismissed. D4's application on conviction 30.The first of D4's grounds advanced by Mr Eric Lau was the same as Mr McGowan's complaint that the judge had made an error when describing the stolen computer hard disks as being worth $1,000 each, leading, in its turn, to the conclusion that $230 as a sale price was "ridiculously low". We have dealt with this point earlier when rejecting its validity. 31.Mr Lau added a number of further points to his original grounds which in our view contributed nothing to D4's application. We do not need to deal with them all. 32.One of these extra grounds was that the judge had relied on parts of the evidence of D3 who, in the result, was acquitted when the judge had not been wholly satisfied about all the evidence given by D3. However, the judge was entitled to rely on any part of that evidence which he could confidently be sure about and he said that he accepted D3's account that "negotiations took place inside D4's company before D4 left for Lowu to collect the money". In fact, it was plain that this had occurred as this was the whole purpose of D2 and D4 travelling to just across the border. 33.It was also submitted by Mr Lau that a combination of factors which had been established against D4 such as working late, repacking the goods, the lack of any documentation, the handling of large sums of cash which were brought from the mainland to Hong Kong late at night and the relocation of many of the boxes containing the stolen computer hard disks, were all accounted for by the evidence given by D4 and to an extent by D2. These may, he contended, have seemed suspicious circumstances in a general sense but they were, in the particular circumstances of this case, not enough to establish that D4 knew or believed the goods were stolen. We did not consider that the judge had overlooked considerations of the kind which Mr Lau raised. The Reasons for Verdict were not only extremely thorough, they were also balanced and fair. There was no merit in any of Mr Lau's further grounds. 34.Accordingly, D4's application, so far as it relates to conviction, is dismissed. Sentence applications 35.In passing sentence, the judge said:
36.On D2's behalf it was argued that the sentence was manifestly excessive and that the judge had failed to distinguish between the criminality of D2 and D4. 37.Mr Lau also contended on behalf of D4 that the sentence was manifestly excessive. 38.The judge had referred, in the course of sentencing D2 and D4, to R v Hui Kam-ming [1994] 2 HKCLR 247 and he accurately summarised in his sentencing remarks what this court had stated in that case. We consider that D2 and D4 were fortunate to have had their sentences reduced to four and a half years from a starting point of five years' imprisonment which was richly deserved. This was professionally executed handling on a grand scale for which there was no real mitigation. They showed no remorse and gave no assistance to the authorities in recovering any of the missing goods. 39.These applications are dismissed.
Representation: Ms Lynda Shine, SGC, of the Department of Justice, for the Respondent. Mr James H.M. McGowan, instructed by Messrs Hastings & Co., for D2/Applicant. Mr Eric Y.N. Lau, instructed by Messrs Anthony Y.L. Au & Co. for D4/Applicant. D2's leave to appeal to Court of Final Appeal refused by Court of Final Appeal. Please refer to FAMC7/2004 dated 18 February 2004 |
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