HKSAR v. Chan Man Hing

CACC000233/2002

CACC233/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 233 OF 2002

(ON APPEAL FROM DCCC NO. 13 OF 2002)

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Coram: Hon Stuart-Moore VP, Ma JA and Jackson J in Court

Date of Hearing: 7 January 2003

Date of Judgment: 7 January 2003

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J U D G M E N T

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Jackson J (giving the judgment of the Court) :

Introduction

1.The applicant was convicted after trial by Deputy Judge Browne in the District Court of three offences of theft and of one offence of handling stolen goods such offences being committed in December 1993 and January 1994. He was sentenced to four years' imprisonment in respect of each offence, such terms to be served concurrently.

2.The applicant applies for leave to appeal against his convictions but not against his sentence. Legal aid having been granted to the applicant limited to his appeal regarding his conviction for handling stolen goods he is represented before us in respect of that matter by Mr Coghlan. As to his application for leave regarding his convictions for the offences of theft the applicant is unrepresented.

3.The subject matter of the four charges brought against the applicant were private motor cars with registration numbers FW 5772 (charge 1 - theft), FE 596 (charge 2 - theft), EX 6966 (charge 3 - theft), and EU 2690 (charge 4 - handling stolen goods).

4.The particulars of the 4th charge alleged that the applicant dishonestly received a stolen private car knowing or believing that it had been stolen.

The prosecution case

5.In January 1994 the applicant was the sole proprietor of a garage in Yuen Long. He had two employees.

6.On 27 January 1994 a detective sergeant saw through the perimeter fence of the garage the applicant working on the engine of vehicle FW 5772 (the vehicle in charge 1), which, at that time, displayed at the rear, the registration plate FK 1096.

7.A team of police officers then entered the garage premises where, amongst other things the four vehicles the subjects of the charges and some metal punches were found. It was admitted at trial that the four vehicles were stolen on 25 January 1994; 28 December 1993; 18 January 1994 and 1 January 1994 respectively.

8.The three vehicles concerned in the theft charges were in very close proximity inside the garage.

9.At the time of the raid, the stolen vehicles appeared as follows :

(a) FW 5772 displayed a registration plate FK 1096 (which was not from a stolen vehicle) at the rear and no plate at the front. The last four digits of the chassis number had been altered and part of the engine number had been erased.

(b) FE 596 displayed no registration plates and the applicant identified this vehicle as a stolen car to the police. Both the chassis number and engine number had been tampered with.

(c) EX 6966 displayed the registration number EX 7257. The last three digits of the chassis number had been changed and the engine number had been tampered with. There were also grinding marks on the engine.

(d) EU 2690 displayed no registration number. The vehicle had the bodywork of EU 2690 (which was a stolen vehicle) but the engine of FK 1096 (which not from a stolen vehicle). The chassis number had been tampered with, but the engine number was the original.

10.The Government Chemist's evidence (which was not disputed) was that some of the punches could have been used to alter the chassis and engine numbers of the three vehicles which were concerned in the theft charges.

11.The applicant made a number of cautioned statements to the police and (after a voire dire) each of them was admitted into evidence. In those statements the applicant, inter alia, admitted that he had stolen the vehicles the subject of charges 1, 2 and 3. As to the vehicle the subject of charge 4 he denied knowing or believing that it had been stolen and said that he had bought the body of that vehicle from somebody whom he only knew by a nickname and that he then affixed that car body to the chassis of FK 1096.

The defence case

12.The applicant challenged the admissibility of all the cautioned statements. He testified on both the special and general issues. He called witnesses in respect of both the special issue and the general issue.

13.The learned deputy judge ruled that all of the cautioned statements were made voluntarily by the applicant and he admitted them into evidence.

14.In relation to each of the charges, the applicant gave evidence at his trial (inter alia) as follows :

(a) Charge 1 - FW 5772 was towed to his garage by a "Chan Chai" for spray painting. It had no licence plates. He did not know the full name of "Chan Chai" but he knew his work address. He was unable to locate him after his (the applicant's) arrest. The registration plate of FK 1096 was placed onto this vehicle by his employee by mistake. FK 1096 was a vehicle brought to the garage by another customer for repair.

(b) Charge 2 - FE 596 was brought in by a "Man Chai"for repair. It had no licence plates. The applicant was unable to contact that person after the repair work was done as his pager number was no longer in use.

(c) Charge 3 - EX 6966 was also towed to the garage by "Chan Chai" for bodywork spraying. The plates of EX 7257 were already on the vehicle when it was first brought in.

(d) Charge 4 - EU 2690 was sent to the garage for urgent repair by a customer after a traffic accident in mid-November 1993. One day in mid-December 1993 "Chan Chai" happened to be present and he offered to carry out the welding work on this vehicle for the Applicant at a price. "Chan Chai" returned the vehicle to the Applicant in early January 1994. The applicant said that both the front and rear plates of FK 1096 were damaged in the traffic accident. He did not know that "Chan Chai" had switched the bodywork of this vehicle to that of the stolen EU 2690.

15.The applicant said at trial that the contents of all of the cautioned statements attributed to him were untrue. He maintained that he had not been involved in the theft of any of the vehicles the subject of charges 1, 2 and 3 and that he had no knowledge or belief that the vehicle the subject of charge 4 had been stolen.

The grounds of appeal

16.When the applicant filed his Notice of Application for leave to appeal against conviction in May 2002 he complained that the trial judge was biased against him and had unfairly drawn the inference that he was the mastermind of a car stealing syndicate.

17.In subsequent letters to this court the applicant has made general complaints about, for example, the conduct of the police when they interviewed him and the quality of their evidence at trial.

18.In respect of the conviction of the applicant for the offence of handling stolen goods (charge 4) Mr Coghlan advances two grounds of appeal as follows :

"(1) The learned judge failed to direct himself adequately or at all on the issue of whether the appellant knew or believed the said car was stolen.

Alternatively, if he did so do, he used the wrong test of such knowledge or belief.

(2) The learned deputy judge failed to give reasons or adequate reasons for rejecting the appellant's evidence in his record of interview ... about his lack of knowledge or belief that the said car was stolen.

Alternatively such reasons as he did give were against the weight of the evidence."

19.As to Mr Coghlan's first complaint, what the learned deputy judge in fact said was this :

" As regards the element of dishonesty, I have to decide whether or not the prosecution have established that you were objectively dishonest and that it had been proved that you were aware that your actions were dishonest by those standards.

As regards the 4th charge, the prosecution have to prove beyond reasonable doubt that you dishonestly received stolen motor car EU2690 and at the time you received it you knew or believed it was stolen. It was not disputed that the vehicle was stolen. The test of dishonesty is the same as for the theft charges."

20.In the course of his written skeleton argument Mr Coghlan sought to expand upon his grounds of appeal (each of which is expressed, somewhat unusually, in the alternative) as follows and again in the alternative :

" When directing himself on the law on charge 4, the learned deputy judge, whilst correctly directing himself on the test to be applied to the issue of dishonesty ... failed to refer to any test on the issue of knowledge or belief. Alternatively, if he did so do, he used the wrong test - an objective test - rather than a subjective one.

Furthermore, the judge did not believe the appellant's explanation in the caution statement [regarding the charge of 'handling']. However, he did believe he told the truth to them on the other charges. He gave no reasons for disbelieving the appellant on this charge."

21.Mr Coghlan then proceeded in his written argument to speculate as to why the trial judge may have disbelieved what the applicant had told the police in interview concerning charge 4.

Conclusions

22.We deal firstly, and shortly, with the applicant's grounds of appeal in respect of charges 1, 2 and 3. There is nothing in those grounds whatsoever. The learned deputy judge explained at length his findings both in respect of the special and the general issues. In short he disbelieved the applicant's evidence and that of his witnesses and he accepted the evidence presented to him by the prosecution.

23.He fully explained why he had come to those conclusions based upon the evidence before him and the applicant has been unable to persuade us that he (the trial judge) fell in any way into error. The simple fact of the matter - whether the applicant likes it or not - is that the trial judge found that the cautioned statements which contained full admissions of the three offences of theft were made in the manner as described by the police officers and he rejected the applicant's account and that of his witness as to that matter as being false.

24.From there the trial judge proceeded to accept the inculpatory content of what the applicant told the police concerning those thefts, and having done so to find (based upon both direct and circumstantial evidence) that the applicant was guilty of charges 1, 2 and 3.

25.As regards Mr Coghlan's first ground of appeal we confess to being somewhat puzzled by it which puzzlement is not lessened by its expression in the alternative. We have set out in paragraph 19 above what the trial judge said in his reasons for verdict as to the burden imposed upon the prosecution in respect of charge 4, which was twofold. The test for dishonesty adopted by the judge is not questioned. Was he then obliged to go beyond the words which he used in his reasons for verdict as follows :

"... and at the time you received [the stolen car] you knew or believed it was stolen."

and :

" Taking into account all the circumstances, I was irresistibly drawn to the conclusion that you dishonestly received this vehicle knowing it to have been stolen either on or some day after 1 January 1994 and before the police raid."

and to propound some test for determining such knowledge or belief?

26.In our judgment the answer to that question, if no more than as a matter of common sense, must be "no". The words "knowledge" and "belief" mean what they say. The trial judge made it plain beyond a peradventure that he was satisfied that the applicant "knew or believed" that the car in question had been stolen prior to his receiving and it is also plain from the words which the trial judge used in his reasons that his view as to that was based fairly and squarely upon a subjective assessment (i.e. the actual knowledge or belief of the applicant), and not an objective one (i.e. what the average citizen might have known or believed in all the circumstances of the receiving of the car). This was one of those cases where no elaboration at all was needed regarding the meaning of "knowledge or belief" - see Archbold (2002 edition) at para.21-311 - even if the trial had been conducted before a jury which it was not. Quite apart from any other consideration it would, in our judgment, be astonishing if it were to be suggested that an experienced judge might be ignorant of the meaning of such commonly used words and thus be obliged to set out in his reasons what he understood it to be.

27.As regards Mr Coghlan's second ground of appeal Mr Reading SC who appears before us on behalf of the respondent points us to the trial judge's comprehensive reasons for verdict as a whole in which he makes it perfectly plain that he did not believe the applicant's evidence or that of his witnesses but that he did accept the inculpatory parts of the applicant's pre-trial statements relating to the thefts whilst rejecting the exculpatory part relating to his knowledge or belief relevant to the "handling" charge.

28.Mr Reading submits that the learned deputy judge, as the trier of fact, was perfectly entitled to find as he did on the evidence presented to him, and we agree with that submission rejecting Mr Coghlan's argument that some further explanation by the judge was called for to, as it were, justify why he believed the inculpatory whilst at the same time disbelieving the exculpatory.

29.On the evidence presented at trial it is quite apparent to us - and indeed it is fully and logically explained in his reasons for verdict - why the judge found as he did and, with respect, we would have been somewhat surprised had he found otherwise.

30.For all of these reasons we are unable to say that any of the applicant's convictions was unsafe or unsatisfactory and, accordingly, the applications are dismissed.

Representation:

Mr John Reading SC, DDPP and Miss Vinci Lam, GC of the Department of Justice, for the Respondent

Mr Christopher Coghlan, instructed by DLA, for the Applicant