HKSAR v. Chung Chun Lit

CACC000003/2000

CACC 3/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 3 OF 2000

(ON APPEAL FROM DCCC 792 OF 1999)

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Coram: Hon Stuart-Moore, VP, Mayo VP and Stock JA in Court

Date of Hearing: 7 February 2001

Date of Judgment: 16 March 2001

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was D2 in the trial below in the District Court before H. H. Judge Toh. He was charged with one count of assault with intent to cause certain acts to be done or omitted, contrary to s. 25 of the Crimes Ordinance, Cap. 200 and two counts of attempted theft, contrary to s. 9 of the Theft Ordinance, Cap. 210 and s. 159G of the Crimes Ordinance, Cap. 200.

2. Particulars of the charges were as follows:

"1st Charge

"CHUNG Tsun-ming and CHUNG Chun-lit, on the 17th day of May, 1999, at Wakatex Precision Textile Company Limited, Room 912, New East Ocean Centre, No. 9, Science Museum Road, Tsimshatsui, Kowloon, in Hong Kong, used violence against CHOW Oi-ling, with intent to cause her to hand over one wallet containing $60.00 Hong Kong currency, Hong Kong Identity Card, three credit cards and to disclose the PIN numbers for two credit cards which she was not legally bound to do.

2nd Charge

"CHUNG Tsun-ming and CHUNG Chun-lit, on the 17th day of May, 1999, in Hong Kong, attempted to steal a chose in action, namely, a debt in the sum of $5,000 Hong Kong currency in Standard Chartered Bank Classic Visa Card account number 4509-3610-1328-7705 owed by the Standard Chartered Bank Limited to CHOW Oi-ling.

3rd Charge

"CHUNG Tsun-ming and CHUNG Chun-lit, on the 17th day of May, 1999, in Hong Kong, attempted to steal a chose in action, namely, a debt of an unknown amount in Standard Chartered Bank Mastercard Card account number 5417-3710-0444-6390 owed by the Standard Chartered Bank Limited to CHOW Oi-ling."

The applicant was convicted of the first two charges and acquitted of the third. He now seeks leave to appeal against his convictions.

3. All of the charges relate to one ongoing incident.

4. The victim of the offences Miss Chow gave evidence that she and D1 in the trial were both employees of a firm called Wakatex Precision Textile Company Limited ("Wakatex"). She informed him of her intention to rent a flat. D1 said that he could introduce her to his relative the applicant who may be prepared to rent a flat owned by him to her. A meeting was arranged in March 1999 and the applicant let the flat to her at a rent of $6,000 per month. Miss Chow accepted that she fell into arrears of rent and moved out of the flat on the 1 May 1999. In this connection it can perhaps be added that she gave evidence to the effect that her finances were somewhat chaotic. She was in receipt of no basic salary. Her remuneration consisted entirely of commission payable to her in respect of sales effected by her. She owed the Standard Chartered Bank approximately $10,000.

5. Miss Chow gave evidence that she returned to Wakatex's office at about 6:15 p.m. and saw D1 and the applicant at the office. She went into the office of Mr Chan the General Manager of the firm. D1 and the applicant are both relatives of Mr Chan. When she left Mr Chan's office D1 and the applicant were waiting for her and said they wanted to see her. She led them into a conference room. The applicant then hit her on the face. She attempted to call the police on her mobile telephone but the applicant snatched it away from her and pushed her to the floor.

6. The applicant then put a grey cloth over her head and continued to kick and punch her. At this time D1 stood on guard at the door. The applicant asked her if she had anything to say about her indebtedness to him and she referred to the fact that her immediate boss Mr Kam had agreed to guarantee her indebtedness. The applicant revealed the fact that he was a Customs and Excise Officer and that she should not attempt to play tricks with him. He demanded that she should produce her wallet which she did. The applicant took out $60 from the wallet and three credit cards. One was a Hello Kitty card and the other two were the credit cards referred to in the 2nd and 3rd charges. The applicant then demanded that she should disclose the PIN numbers of the credit cards. She told him that there was no PIN number for the Hello Kitty card and gave him false numbers for the other two cards. The applicant then told D1 to take the cards and withdraw moneys from an ATM using the PIN numbers which had been given. D1 left with the cards. A short time later the applicant's mobile telephone rang and he answered it. He said that D1 had advised him that the PIN numbers were incorrect. She gave him further PIN numbers. Later D1 returned and said that one of the cards had been retained by the ATM and that it was apparent that there was no money in the account of the other one.

7. At about this time Mr Chan entered the conference room and inquired what all the commotion was about. Miss Chow did not tell him about the assaults as she was aware of the fact that D1 and the applicant were his relatives. Mr Chan asked Mr Kam to come into the room and a discussion then took place. The $60 was returned to Miss Chow and Mr Kam agreed to act as a guarantor of her debt.

8. Miss Chow said that she wished to use the toilet and she was accompanied by Mr Kam. At this juncture she told Mr Kam about the assaults which had been inflicted upon her. After this she said she wanted to go home and Mr Chan instructed Mr Lau another employee who was also a relative of his to accompany her home. On the way back she insisted on getting out of the taxi and she went to a police station and made a report.

9. Mr Chan and Mr Kam both gave evidence for the prosecution which so far as it went did tend to support Miss Chow's evidence although there were some inconsistencies.

10. An officer from the Standard Chartered Bank also gave evidence. His evidence was entirely consistent with Miss Chow's. He said that it was apparent from the Bank's records that the unsuccessful attempts to withdraw moneys at the relevant time from Miss Chow's accounts had taken place. As Miss Chow had owed the Bank $10,000 both accounts had been closed in January 1999.

11. It was also evident that an attempt had been made to withdraw $5,000 from the visa account which was the subject matter of the 2nd charge.

12. Neither D1 nor the applicant gave evidence at their trial.

13. However the applicant's wife did give evidence. She said that Miss Chow had after her husband had been charged attempted to blackmail her. She had said that she would be prepared to withdraw her complaint against her husband on payment of a sum of money. The Judge accepted this evidence. A representative of the Customs and Excise Department gave evidence that the applicant had served the department in a satisfactory manner for 17 years and was of good character.

14. The Judge gave detailed reasons why she was prepared to accept the testimony of Miss Chow on the central issues in the case. She had done so notwithstanding the fact that she accepted a number of flaws in her character. She said that she appeared to be an opportunist and was up to her eyebrows in debt. She also accepted that when she had been approached by the applicant's relatives in an attempt to persuade Miss Chow to withdraw the charges she had made a demand for money.

15. As against this she considered the evidence of the prosecution witnesses as a whole and in particular the medical evidence relating to the injuries sustained by Miss Chow. These were entirely consistent with the account she gave of the assaults which she had been subjected to by the applicant.

16. The 1st ground of appeal is as follows:

"CHARGE ONE (ASSAULTS WITH INTENT TO CAUSE CERTAIN ACTS TO BE DONE OR OMITTED)

1. The learned Judge erred in accepting that PW1 'was telling the truth about what happened on 17 May [the day of the alleged offence]' (Reasons for Verdict p.20C) and convicting the applicant thereon when PW1 was manifestly incredible and unreliable. In particular:

(i) the learned Judge effectively found that PW1 had lied in her evidence when:

(a) the learned Judge found that PW1 had attempted to blackmail the applicant's wife following the alleged offence (Reasons for Verdict p.l9Q-p.20B), which PW1 had denied during cross-examination (Transcript p.52T-55C);

(b) the learned Judge expressed 'no doubt' that PW1 owed the applicant $9,500 (Reasons for Verdict p.l7M-N), which PW1 had denied (Transcript p.37S-38A);

(c) the learned Judge accepted the evidence of PW7 that when he asked PW1 whether she had been beaten up, she had told him 'no' but that she had fallen down (Reasons for Verdict p.l6D-F), which PW1 had originally denied (Transcript p.48T-49G);

(d) the learned Judge accepted the evidence of PW1 later on that the reason for not telling PW7 the truth was 'she was scared to tell PW7 [ ] the truth because she knew he was related to both defendants' (Reasons for Verdict p.l8B-C); however, what PW1 had originally said during examination-in-chief was that: 'Mr. Chan asked me what happened and then I told him all about it' (Transcript p.31I; p.48T-49G);

(e) the learned Judge herself impugned the character of PW1 as 'up to her eyebrows in debt' (Reasons for Verdict p.l7G), 'street smart' (p.17L), 'insolent' (p.18G), and 'an opportunist' who 'saw in these events an opportunity to recoup some money to pay off her debts' (p.20D-E);

(ii) notwithstanding the circumstances outlined in (i) above, the learned Judge failed to give herself any warning to exercise caution when considering the evidence of PW1;

(iii) in all the circumstances, the conviction was unsafe and unsatisfactory."

17. To get all of this in context it is necessary to consider the oft quoted citation from the judgment of Blair-Kerr J in R v. RE Low which was cited in HKSAR v. Choi Gin-ngon and Ors [1998] 1HKLRD 902 at p. 909:

"It was contended by Mr How that a District Judge's statement of his reasons for verdict prepared in pursuance of s.30 of the District Court Ordinance (Cap. 336) was comparable to a judge's summing up to a jury. I do not agree with this view. The District Judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a judge misdirects a jury on a matter of law. Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how 'the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and fact which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable.

We consider that the passage quoted from the judgment of Blair-Kerr J sets out correctly the general duty of a District Judge."

18. Two matters arise out of this. The first is that a District Judge is in a good position having seen and heard all the witnesses to make a proper assessment of evidence adduced before him or her and it is only in the most exceptional circumstances that an appellate court will interfere with findings of fact which have been made. The second is that it is not incumbent upon District Judges to record the fact that they may have given themselves a warning concerning the evidence of any particular witness.

19. In the present case the Judge did give compelling and cogent reasons why she accepted Miss Chow's evidence notwithstanding the criticisms she made of her. She was fully justified in reaching the conclusions she did and this ground must fail.

20. The 2nd ground is that:

"2. Alternatively, the learned Judge erred in finding that the applicant 'had formed the intention of using violence on [PW1] in order to force her to give him her wallet in order to get his money back' when he placed the cloth over her head and assaulted her (Reasons for Verdict p. 18 I-L) in that:

(i) to be convicted of the offence, the applicant must have had the intention to force PW1 to give him her wallet by using violence on her and that intention must have been formed prior to or at the time of using violence on her;

(ii) there was no direct evidence that the applicant had formed the requisite intention of forcing PW1 to give him her wallet by placing the cloth over her head and assaulting her either prior to or at the time he placed a cloth over her head and assaulted her;

(iii) the learned Judge could only have come to the conclusion that the applicant had formed the requisite intention at the material time by drawing an inference from surrounding circumstances;

(iv) all the circumstances show that the applicant did not have the intention to force PW1 to give him her wallet by placing a cloth over her head prior to or at the time he placed a cloth over her head in that:

(a) according to the evidence of PW1 (Transcript p28A-T), when she entered the conference room:

- the applicant slapped her, snatched her mobile phone and pushed her to the ground (p.28B-E);

- took a piece of cloth from the table and placed it over her head (p.28E-G);

- removed the cloth from her head and put a chair in front of her and sat down in the chair (p.28G-H);

- started talking to her (p.28O-P);

- and then D1 went out of the room (p.28P);

- when D1 returned with the ashtray, he and the applicant started to smoke (p.28Q-R);

- the applicant started talking again (p.28R-S);

- PW1 asked the applicant what he wanted and then 'I was told to take out my wallet' (p.28T);

(b) on the basis of the above evidence, the point of time at which the applicant asked PW1 to produce her wallet is remote from the point of time at which the applicant placed the cloth over her head; further, the many intervening events between the moment of assault and the moment the applicant asked PW1 to produce her wallet militate against any inference that the applicant had the intention of forcing PW1 to give him her wallet by placing a cloth over her head and at the time he placed a cloth over her head;

(v) the learned Judge herself concluded that at the time the applicant slapped PW1, it was 'the spur of the moment acting out of anger' (Reasons for Verdict p. 18I). That conclusion further undermines any inference that the applicant had formed the requisite intention of using violence to force PW1 to give him her wallet at the time when he placed a cloth over her head; the learned Judge erred in drawing that guilty inference in the light of her conclusion over the slapping;

(vi) in all the circumstances, the conviction was unsafe and unsatisfactory."

21. The observations made in relation to the 1st ground are equally applicable to this ground. However it needs to be added that it is not realistic to attempt to compartmentalise evidence into component parts in the way in which it has been done here. It is necessary to have regard to the situation as a whole. Clearly the conduct of the defendants was an on going process. There can be no doubt that once Miss Chow's evidence was accepted there were ample grounds to infer that all of the ingredients of s. 25 had been met.

22. Ground 3 is as follows:

"CHARGE TWO (ATTEMPTING TO STEAL)

3. The learned Judge erred in finding beyond reasonable doubt that the applicant had the requisite intention 'to steal [$5,000] and permanently deprive PW1 and the Standard Chartered Bank of it' (Reasons for Verdict p.19K-L) from credit card account No. 4509361013287705 in that:

(i) according to the evidence of PW1 (p.29T), the applicant took two credit cards belonging to PW1 from her, namely, credit card No.4509361013287705 (subject of Charge 2) and credit card No.5417371004446390 (subject of Charge 3);

(ii) PW1 told the applicant that 'there was no money in the card' (Transcript p.39K-L) and she accepted she had told the applicant that 'the cards had no use' (p.56B-H);

(iii) PW1 said the applicant handed the two cards to the 1st Defendant and asked him to withdraw money from it (p.29T-30B);

(iv) the learned Judge acquitted the applicant of Charge 3 on the basis that 'it was not clear from the evidence of PW1 if this was the card she told the 1st defendant to check to show she had no money. If so, there was no intention to steal a chose in action from that account. As I am a bit confused on this, I give the benefit of the doubt to both defendants and acquit them of this charge' (Reasons for Verdict p.l9N-Q);

(v) on the basis that there were only two credit cards in issue, and that PW1 had told the applicant both of 'the cards had no use', if the learned Judge was 'confused' about the credit card the subject of Charge 3 and therefore doubtful of the applicant's intention to steal from that account, she must logically have had been confused whether the credit card the subject of Charge 2 was in fact the one PW1 had told the 1st Defendant to check to show she had no money;

(vi) in the circumstances, the learned Judge could not have found beyond reasonable doubt that the applicant had the intention to steal from the credit card the subject of Charge 2."

23. The reasons given by the Judge for accepting the evidence in relation to the 2nd charge are entirely convincing. It does however have to be said that the Judge appears to have been generous to the defendants in finding that there were doubts concerning the 3rd charge and giving the defendants the benefit of this.

24. Ground 4 was abandoned.

25. Ground 5 is as follows:

"5. The learned Judge failed to find dishonesty in the applicant in asking D1 to withdraw money from PW1's credit cards in that:

(i) the prosecution offered no proof that the applicant was dishonest;

(ii) the learned Judge found that PW1 owed the applicant $9,500 (Reasons for Verdict p.l7M-N);

(iii) PW1 admitted owing the applicant '$6,000 or slightly more than $6,000' (Transcript p37U-38A)

(iv) in the circumstances, the learned Judge failed to consider that the applicant might have had honestly believed he was entitled to take money from PW1."

26. For this ground to be properly understood, we need firstly to look at s. 3 of the Theft Ordinance, Cap. 210, which provides:

"(1) A person's appropriation of property belonging to another is not to be regarded as dishonest -

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, ..."

27. Mr Plowman SC for the applicant placed considerable reliance upon R v. Skivington [1967] 51 Cr App R 167 and in particular a passage at 170 where the court was dealing with an appeal against conviction for robbery:

"In the opinion of the court, both on principle and upon the cases, it is clear that honest belief can be a defence. So far as principle is concerned, it can be stated in the simple form that larceny is an ingredient of robbery, and if the honest belief that a man has a claim of right is a defence to larceny, then it negatives one of the ingredients in the offence of robbery, without proof of which the full offence is not made out. That principle, simply stated, has been upheld in case after case. ..."

28. This, so far as it goes, remains an accurate statement of the law. However, in R v. Ghosh [1982] 75 Cr App R 154, Lord Lane CJ concluded that dishonesty had two aspects, firstly subjective and, secondly, objective. At 163, he said:

"In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. For example, Robin Hood or those advent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest."

29. R v Ghosh was considered and applied in R v William Roberts [1987] 84 Cr App R 117 where the English Court of Appeal held that a full Ghosh direction was not necessary in circumstances where the appellant had never raised the issue that no one would think that what he had done was dishonest. At 123, O'Connor LJ said:

"So we start with the proposition that for the subjective test to arise somewhere along the line the defendant has to say 'I did not know that anybody would regard what I was doing as dishonest.' We have come to the conclusion that no one can properly say that, if what he is doing is receiving stolen property knowing it to be stolen and then trying to sell it. A person may come into possession of stolen property innocently and the test for that would be normally as to what he did with it. If, for example, he had taken it straight to the police and said 'I have found this in my motor-car,' then the question would plainly arise because nobody would say that a person acting in that fashion was acting dishonestly if it was true. But for somebody to put forward this kind of assertion is, in our judgment, really not possible. In fact, it is not only not possible, but it was not done. At no stage in the present case did this appellant say on the facts, 'I received the stolen goods and was trying to sell them for my own profit, but I did not know that anybody would think that dishonest.' He had never raised the problem and unless the problem is properly raised it does not seem to us that it is necessary for the trial judge to embark on the full Ghosh direction. It is a matter for the judge, depending on the facts of the case, because where the issue is raised properly the Ghosh direction requires the jury to consider a whole lot of things."

30. Although there was an abundance of evidence that Miss Chow did owe at least $6,000 to the applicant there was no evidence, either directly or inferentially, that the applicant considered that he had not been acting dishonestly by doing what he did.

31. On the contrary, all of the surrounding circumstances strongly indicated, to the point that it was obvious, that the applicant must have known he was acting dishonestly. It would be surprising to say the least that a person with the background and experience of the applicant, with seventeen years experience as a Customs Officer, could have thought that he was legitimately and honestly entitled to indulge himself in the kind of self help alleged in this case. Adopting the words in William Roberts "for somebody to put forward this kind of assertion is not only not possible, but it was not done". At no stage in the present case was evidence adduced that the applicant did not know anyone would think that what he did in relation to Miss Chow and her property was dishonest.

32. We do not think that the Judge can be criticised for coming to the conclusion that conduct of this nature was properly characterised as an attempted dishonest appropriation of property.

33. This ground must fail.

34. The convictions were in no way unsafe or unsatisfactory and this application is dismissed.

Representation:

Mr P. S. Chapman, SADPP of the Department of Justice, for the respondent

Mr Gary Plowman, SC, instructed by Messrs Ko & Chow for the applicant