R. v. Chung Chun Yam

CACC000278/1993

IN THE COURT OF APPEAL

1993, No. 278
(Criminal)

____________

____________

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

Dates of hearing: 8, 9 February and 1, 2 March 1995

Date of judgment: 2 March 1995

Date of handing down judgment: 17 March 1995

_____________________________________

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

_____________________________________

Macdougall, V.-P.:

1. After trial before His Honour Judge Jackson in the District Court the applicant, who was jointly charged with a number of other defendants, was convicted on six charges of handling stolen goods and acquitted on two other such charges. He now appeals against those convictions.

2. It is not necessary to go into extensive detail in summarising the evidence given at the trial. Suffice it to say that there was evidence that on 27 April 1991 the police conducted a raid on a garage premises at Hang Tau. They examined approximately 73 vehicles that were found on those premises. Among these they found two complete stolen vehicles, namely, a Honda Prelude sedan and a BMW 325i sedan, and parts of two stolen vehicles, namely a Peugeot Estate case and a Mazda sports car. A Mazda sports car which was undergoing repair and a damaged Peugeot were also found at the garage. Neither of these two vehicles was stolen and none of the parts of the stolen vehicles had been transferred to them.

3. It was in relation to charges concerning each of these stolen vehicles and parts of stolen vehicles, and two other stolen vehicles, namely a Nissan vanette and a BMW 320i sedan, neither of which was found at the garage, that the appellant was convicted.

4. Also discovered on the garage premises at the time of the raid was a Mercedes Benz sedan in the boot of which were found articles belonging to the appellant who arrived at the garage during the course of the raid.

5. Of the stolen vehicles found at the garage, inspection revealed that the chassis number of the Honda Prelude had been removed and replaced with a different number, and that the engine number had been tampered with and another number stamped in its place. The appellant's fingerprint was found on a seat belt buckle of that vehicle. The chassis number on the Mercedes Benz appeared to have been stamped by a machine, not by a computer as is normal with Mercedes Benz vehicles. However, a Crown witness testified that this vehicle had been owned by his previous employer, that he, the witness, had repaired and maintained it in the first half of 1990, and that the machine stamping of numbers was not an uncommon feature on certain vehicles imported from the United Kingdom. The judge acquitted the appellant on the charge relating to this vehicle.

6. The original chassis number of the BMW sedan discovered at the garage was found to have been removed and replaced with a different number. None of the other vehicles or parts of vehicles found at the Hang Tau garage had altered chassis or engine numbers.

7. The Nissan vanette came to light when it was driven by its registered owner to the police regional crime unit for inspection. Its original chassis number had been removed and replaced with a different number. The registered owner testified that he had bought the vehicle from one of the appellant's co-defendants, who had been introduced to him as the boss of Fung Fan Motors (Fung Fan), in part exchange for the BMW 320i sedan. Fung Fan was a business in which the appellant and a co-accused were partners. The appellant's role in the partnership was to effect repairs to vehicles that were acquired by Fung Fan.

8. The BMW 320i sedan was inspected after it too had been driven to the police regional crime unit by its registered owner who later testified that she had bought it from the appellant. Inspection revealed that the original chassis number had been removed and replaced with another number, and that the engine number had also been interfered with.

9. There was expert evidence, to which we will refer later, that related to the possible use of some of the die punches found at the garage in impressing numbers on the Honda Prelude and the BMW 320i.

10. The appellant gave evidence at the trial. He denied having been involved in the handling of stolen vehicles. He testified that he and two co-defendants had decided to rent an area of land on which they could carry out vehicle repairs. The appellant was responsible for renting the land and for supplying the necessary vehicle components to enable one of his colleagues to do all the repair work.

11. Later, after operations of the business venture had been transferred to the Hang Tau premises, the appellant was introduced to an insurance claims adjuster with whom he arranged to buy vehicles which had been written off by the claims adjuster's company.

12. In 1989, when seeking a part for a BMW, the appellant answered an advertisement placed by a company called Tin Shing. The advertisement related to the sale of components of motor vehicles. He located the premises occupied by Tin Shing and obtained the BMW part that he wanted. Thereafter, he did regular business with Ah Shing, the proprietor of Tin Shing. Subsequently, Ah Shing agreed to transport larger vehicle components to the Hang Tau garage and, because Tin Shing was far better equipped than the appellant's garage to perform major repair work, it was agreed that the appellant would send vehicles requiring such work to Tin Shing.

13. Evidence had been given by several prosecution witness who were very familiar with the area in which Tin Shing was said to have been operating that no such company existed.

14. There was evidence, however, that on 28 April, the day after the raid, the appellant offered to take a police inspector to the Tin Shing premises, but that the inspector had declined to go there. Subsequently, while he was in hospital, after having been granted police bail, the appellant realised that the key to the case was Tin Shing. After his discharge from hospital he went to the Tin Shing premises but, to his dismay, found that the company was no longer there. Although he conducted a search of the area for several days, he failed to locate the company premises. There was however, evidence from one Crown witness that he had heard of Tin Shing Motors and that it was a company dealing in second hand motor parts somewhere in Kam Tin.

15. The appellant produced advertisements that had been published in the Sing Pao newspaper on five successive days from 11 to 15 April 1991, some two weeks before the police raid. These related to the Tin Shing Company and gave the pager number by which it could be contacted. Moreover, on 31 January 1991, three months before the police raid, a person who gave a false identity card number and left no forwarding address made an application to the Po Wo Pager Company for a pager in the name of Tin Shing Company.

16. The appellant produced to the police, two invoices from Tin Shing which related to repairs carried out and parts supplied in respect of each of the two BMW vehicles, an invoice from Tin Shing in respect of both the Peugeot and the Mazda and an invoice from Tin Shing and a certificate of origin in respect of the Honda Prelude. No invoice was produced for the Nissan vanette. The pager number that appeared on Tin Shing's letterhead on each of these invoices, save the one which related to a sale in 1990 of the BMW found at the garage, was the same as that which appeared in the newspaper advertisements.

17. After a 148 page recitation of the evidence the judge made his findings of fact. Apart from some findings regarding purely peripheral matters, the findings on which the judge relied were as follows:

"I am satisfied that [the appellant] was in overall control of the premises at Hang Tau where all of the above mentioned stolen vehicles (or parts from those vehicles) were found by the police on 27th April and that he knew they were there and that they were stolen. I am also satisfied that he knew why they were there as part of a 'ringing' operation in which he was actively involved, and that he was fully aware of the existence of those items [namely die punches] seized by the police from the office in Hang Tau which were used in the ringing operation.

I have no doubt whatsoever that D5 dishonestly undertook or assisted in the retention removal, disposal or realisation of the six vehicles (or parts of those vehicles) set out above and that he did so by or for the benefit of another or dishonestly arranged to do so."

"I consider it unnecessary to go into my reasons in detail because the matter (either way) has been very fully convassed both in evidence and in Counsel's submissions, but I am entirely satisfied - despite the evidence of D5 and PW89 and the evidence of the newspaper advertisements prior to 27th April 1991 - that no Tin Shing Company dealing in motor parts in the area of the Kam Tin Road as claimed by [the appellant] ever existed. As to this I accept the Crown's submissions that such a company was a fiction devised by [the appellant] (and no doubt others)."

"In coming to the conclusions which I have, I have considered with great care (inter alia) the evidence concerning [the appellant's] statements to the police and D5's evidence before this Court. I have not the slightest doubt that [the appellant] lied both to the police and to me.

I could not for one moment - having watched him carefully over the many days when he was giving his evidence - conclude but that he was not a witness of truth. I reject his evidence entirely but not merely to the extent of treating it as if it had never been given. I am quite satisfied that, after applying the principles to which I have been referred, the lies which [the appellant] told both the police and me, particularly concerning the Tin Shing Company, Ah Shing and related matters were positive evidence of guilt. I say that although I would still have reached the same verdict had I simply ignored D5's evidence completely and despite the fact that I accept that it might be right that what immediately prompted him to tell one or two particular lies to the police (e.g. about his belongings being in the boot of the Mercedes and about his not knowing who that vehicle belonged to) was not his fear of being charged with a criminal offence but his concern about the conflicting interests of his police employment and his outside activities.

For all of these reasons I am satisfied beyond reasonable doubt that [the appellant] is guilty of charges 2, 3, 4, 5, 8 and 9."

18. Mr Hemmings, who appeared for the applicant in this court but not in the court below, was highly critical of the judge's approach to the evidence and of his findings. We accept his submission that an exhaustive recitation of the evidence by the judge, followed by what in effect was nothing more than a finding that he disbelieved the appellant, fell far short of what was required in the present case. The judge's assertion that "I consider it unnecessary to go into my reasons in detail because the matter (either way) has been very fully canvassed both in evidence and in Counsel's submissions" completely side-stepped any analysis of the evidence and with it a proper resolution of the matters raised by the defence by way of the invoices, the newspaper advertisements and the application form for a pager, all in the name of Tin Shing.

19. The Crown case was that Tin Shing did not exist and that it was a fiction created by the appellant to deflect blame from himself. However, if Tin Shing did not exist, no explanation appears to have been advanced as to how these advertisements had appeared in the newspaper two weeks before the police raid when the appellant was totally unaware of any impending raid, or, if contrary to the evidence, the appellant had had prior notice that his garage was to be raided by the police two weeks later, why he had not simply removed the stolen vehicles and parts from the garage premises instead of leaving them there for the police to find.

20. Mr Hemmings submitted that the important evidence as to the newspaper advertisements coupled with that relating to the invoices and the fact that three months before the raid someone had applied for a pager in the name of Tin Shing Company, demanded a reasoned explanation for its rejection rather than a bald assertion that "I accept the Crown's submissions that Tin Shing was a fiction devised by [the appellant] (and no doubt others)".

21. We entirely agree. Moreover, it is apparent that the judge did not consider the evidence in respect of each charge. Mr Hemmings submitted that this failure, together with the judge's assertion that he considered it unnecessary to go into his reasons in detail, resulted in his falling into error.

22. The first of these was his finding that all of the stolen vehicles or parts of vehicles were found by the police on 27 April at the garage at Hang Tau. This was manifestly erroneous since, as already mentioned, two of the vehicles, the BMW 320i and the Nissan vanette, were not found at the garage but were brought to the regional crime unit by their registered owners.

23. Secondly, there was evidence that three of the stolen vehicles, namely the two BMWs and the Nissan vanette, had been resprayed. However, there was no evidence of the existence of any paint spraying facilities at the Hang Tau garage. This lent support to the appellant's assertion that Tin Shing was the likely culprit. Had the Hang Tau garage been the centre of the car "ringing" activity that the Crown alleged, it was a factor in favour of the appellant that at least some alterations to the appearance of the vehicles appear to have been carried out elsewhere.

24. Thirdly, the judge found that the die punches seized by the police from the office at the Hang Tau garage were used in the ringing operation. This finding was inconsistent with his recitation of the evidence in which he stated that the forensic expert had testified that, "having examined [the die punches] and compared them with the letters and numerals stamped on the chassis and engine of the Honda Prelude he was able to conclude that some of those die punches could have been used to tamper with the chassis and engine number of the Prelude."(our emphasis). With regard to the BMW 320i, the judge's finding was consistent with his erroneous assertion that the forensic expert's testimony revealed that "some of the die punches had been used to stamp or impress its number."(our emphasis). In fact, the expert had testified that, although the size and style of the digits on the engine of that vehicle were the same as those on the corresponding die punches, a detailed comparison could not be carried out owing to rusting of the metal surface bearing the engine number. It is difficult to see, therefore, how the judge came to the conclusion that the appellant "was fully aware of the existence of the die punches which were used in the ringing operation." (our emphasis).

25. There was another piece of evidence on which the Crown placed some reliance. This was an invoice that was seized by the police from the garage at Hang Tau and which bore the name Lung Wai Motor Car Soldering Service and the address of that company. It also bore a reference to the engine number of the Honda Prelude. The Crown sought to show that the address printed on the invoice was fictitious and that the company did not exist. The proprietor of Lung Wai Motor Services Company was called by the Crown to testify that the name on the invoice was not that of his company and that he was unaware of any company, apart from his own, that traded under the name Lung Wai in the Sheung Shui area.

26. Unbeknown to the judge, for there was no evidence before him to this effect, there was in fact a company operating as Loong Wai Motor Car Soldering Service Co. at 1A Hang Tau Road, Sheung Shui between 15 December 1988 and 26 May 1990. Since this evidence did not come to light until after the trial, the appellant sought to have it admitted before this court for the purpose of this appeal. Mr Cantrill for the Crown did not object to its reception. We therefore admitted it.

27. The significance of the Lung Wai invoice is that the judge referred to it during the course of his recitation of the appellant's testimony and observed that "[the appellant] then denied a suggestion that he, or any body else from Hang Tau, had placed adverts in Sing Tao newspaper under the name of Tin Shing and he said he was unable to explain the presence of an invoice [the Lung Wai invoice] printed with a fictitious address in Hang Tau premises."

28. We think that it is very likely that this invoice, understandably but wrongly, assisted the judge in coming to his conclusion that Tin Shing "was a fiction devised by [the appellant] (and no doubt others)". Not only did this invoice have the effect of reinforcing the Crown's assertion that the other invoices and the Sing Tao advertisements had been concocted by the appellant, but the fresh evidence that Loong Wai really did exist, notwithstanding the evidence by the owner of Lung Wai Motor Services that he had never heard of any other company called Loong Wai or Lung Wai in the Sheung Shui area, might well have caused the judge to treat with greater caution the evidence of the prosecution witnesses who said that they had never heard of Tin Shing.

29. Mr Hemmings directed our attention to the following passage in the Reasons for Verdict:

"I reject [the appellant's] evidence entirely but not merely to the extent of treating it as if it had never been given. I am quite satisfied that, after applying the principles to which I have been referred, the lies which [the appellant] told both the police and me, particularly concerning the Tin Shing Company, Ah Shing and related matters were positive evidence of guilt". (emphasis supplied).

30. He submitted that this embodied two serious misdirections. First, the judge's reference to the principles which he said he had applied was to those stated by counsel in his closing speech for the prosecution. Unfortunately, in listing the criteria stated by the Court of Appeal in England in R. v. Lucas [1981] QB720 at 724, counsel failed to mention the fourth criterion, namely that for an alleged lie to be capable of amounting to corroboration it must be clearly shown to be a lie by admission or by independent evidence. It follows from what the judge said that he does not appear to have been aware of the fourth criterion and that he failed to ensure that it had been met.

31. Secondly, the judge's assertion that lies which the appellant had told both the police and the court were positive evidence of guilt, demonstrated a misunderstanding of the significance of lies.

32. The following passage in Broadhurst v. R. [1964]AC 441 at 457 is relevant:

"Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

33. A lie or lies told by an accused person can only be taken into account as strengthening the inference of guilt drawn independently from other evidence in the case.

34. There was ample evidence on which the applicant could properly have been convicted on the charges on which the judge found him guilty. Had the judge not fallen into the errors to which we have referred in the course of this judgment we would not have been disposed to allow this appeal. For the reasons we have given, however, we were driven to the conclusion that the convictions cannot stand. We therefore allowed the appeal, quashed the convictions and set aside the sentences.

Representation:

Mr Cantrill for Crown Prosecutor

Mr John Hemmings instructed by M/S Chan & Cheng for Applicant