HKSAR v. So Kong Shun and Another

CACC000306/1997

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1997, No.306
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 3 September 1998

Date of Judgment: 3 September 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant Lau Lai-sing was the 2nd defendant at trial. He was charged together with the 1st defendant So Kong-shun on one charge of handling stolen goods. This read that the two men on or about 1st August 1996, near the hillside of Shatin Fishermen's New Village, Ah Kung Kok, Sha Tin, dishonestly undertake or assisted in the retention, removal, disposal or realization of certain stolen goods, namely, a medium goods vehicle registration No.FN6005, the property of Nice Brave Investment Limited, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods. In the course of the trial the prosecution, by leave, withdrew that charge and preferred a charge of conspiracy. The 1st defendant has abandoned his application for leave to appeal against conviction on that charge. The applicant seeks leave to appeal against both conviction and sentence. The applicant was sentenced to five years and the 1st defendant was sentenced to four years and three months.

2. It was the prosecution evidence that the 1st defendant was found on the hillside specified in the charge repainting the stolen goods vehicle. A pair of number plates GS9244 were found nearby. These bore the number of a vehicle which was registered in the name of the applicant. He was, at 10 a.m. on the evening of 1st August, taken from his home to Hong Kong Police Headquarters for the purpose of taking statements. This was, the investigating officer said, for "further investigation". He gave a cautioned statement at 11:40 p.m. The statement taker, DPC 3041, set out that they were inquiring into a reported missing medium goods vehicle and that they recovered the number plates and then said "Now I am going to put some questions to you. You are not obliged to say anything but whatever you say may be given in evidence." The applicant was asked did he understand. He said he did and he signed. The statement was then taken. It was as follows:

"Q. Now I show you a pair of number plates No. GS 9244 seized in the case. Do you have anything to say?

A. In fact, it was 'Ah Tan' who asked me to do it, but all along I haven't done it yet.

Q. You said it was 'Ah Tan' who asked you to do it. What did he ask you to do?

A. To drive the trucks he stole to the mainland for him.

Q. When did 'Ah Tan' ask you to drive the vehicle he stole to the mainland for him?

A. Around last Tuesday.

Q. Around last Tuesday, where did 'Ah Tan' ask you to drive the missing vehicle to the mainland for him?

A. In the Tsim Tung Restaurant at Huanggang, Shenzhen.

Q. 'Ah Tan' ask you to drive the missing vehicles to the mainland for him. How did you reply?

A. I promised him.

Q. What happened after you promised 'Ah Tan'?

A. I gave my portable phone and pager numbers to him. He said he would contact me later.

Q. Did 'Ah Tan' contact you again?

A. Yes. He phoned me on Tuesday asking me for some information.

Q. What kind of information did 'Ah Tan' get from you?

A. He asked me about the registration number of the truck I used to drive and the name of the Mainland transport company it belonged to.

Q. What is the registration number of the truck you used to drive? And what is the name of the Mainland transport company it belongs to"

A. The registration number is GS9244 and the name of the Mainland transport company is called Guangdong Yuet Ka Transport Company Limited.

Q. What is the mainland registration number of the truck GS 9244 that you used to drive?

A. Guangdong 02-41757.

Q. Did you tell 'Ah Tan' the mainland registration number Guangdong 02-41757?

A. No. Ah Tan told me that if there was a vehicle to be driven to the mainland, I had to put the pair of my Mainland number plates onto the missing vehicle and then drove it to the mainland.

Q. What happened after you gave your particulars to 'Ah Tan'?

A. He said I could contact him later.

Q. Did 'Ah Tan' contact you again?

A. Yes. He phoned me this afternoon.

Q. What did Ah Tan say when he phoned you this afternoon?

A. He said there might be a vehicle for me to drive to the mainland tonight.

Q. Do you know what kind of vehicle 'Ah Tan' asked you to drive to the mainland?

A. He didn't mention it to me. He merely told me to get ready for it.

Q. Do you know what kind of vehicle 'Ah Tan' asked you to drive today?

A. He didn't mention it to me but I know it must be about driving a truck to the mainland for him.

Q. How do you know it must be a truck that you will drive for him?

A. Because I used to drive trucks and I already gave him the particulars about my number plate and route, I believed that he put the particulars of my number plate and route on the truck which was obtained by stealing and then handed it over to me for driving to the mainland.

Q. After 'Ah Tan' phoned you this afternoon, did he make any phone call to contact you again?

A. No."

3. The applicant, after he had completed that statement, was arrested. He then made three further statements - one at 8:07 on 2nd August, one at 12:20 on 8th August and finally one at 2:50 p.m. on 19th September.

4. DPC 3041 said that he had, prior to the taking of the cautioned statement, not arrested the applicant because "we didn't have any evidence to show that he has any connection with this case." He denied that he had promised the applicant that he would be a prosecution witness. It was put to him that "All along you promised him that he will be a prosecution witness only", and he answered "Disagree". This suggestion was put to him more than once and on each occasion he denied that it was true.

5. As we have said, after the taking of the cautioned statement in which the applicant admitted that he was part of the conspiracy, he was arrested. The objection taken in the voire dire proceedings was as follows. DPC 3041 said to the applicant after he was apprehended at 10 p.m. on 1st August "I know the main culprit is Ah Tan, so if you were co-operative then we would not prosecute you and instead you become a police witness. You will be free to go after signing the statement".

6. When addressing the court, Mr. Luk, who appeared for the applicant below, said:

"Your Honour, to start with, I must admit that actually the grounds that are put forward by our defence is not a very vigorous one, it's only a mild one, because we only allege the statement-taker only making some promise to us. We do not exaggerate the matter by saying that actually he had beaten us or threatened us, we only allege that he offered some promise to us."

7. That then was the challenge directed towards the cautioned statements - they were induced by a promise. We turn to see how the judge dealt with this. He said:

"In my view, DPC 3041 who took the four statements from the accused, was an excellent witness. He was careful in the way in which he answered questions during a careful cross-examination on behalf of the 2nd accused. I am satisfied that he was a witness of truth, on whose evidence I could and should rely. I accept that events occurred in the manner deposed to by him. He indicated in his testimony that when he and his colleagues had first gone to the accused's residence, he had explained to the accused why they were there. That was around 10 p.m. on 1 August. They thereafter all went to look at the accused's vehicle and, after that, went to the headquarters for the purposes of taking the statements.

He was quite frank in his evidence that at that stage he had not arrested the 2nd accused. He was asked, or it was suggested to him, that he had not arrested the 2nd accused but had only invited him for inquiries, to which he replied, 'I did caution him.' Indeed, the preamble of Exhibit PP43 indicates precisely that that is what happened."

8. The judge went on later to say:

"At this stage (this is prior to the taking of the cautioned statement), in fact on his own evidence, DPC 3041 was initially somewhat uncertain. For that reason he did not rush in and arrest the 2nd accused at the outset."

9. The trial judge later went on:

Without wishing to over-emphasise the matter, I find the 2nd accused's explanation, his version of events extremely difficult to believe. Here is a man who is approached at 10 o'clock at night in his home. He's taken to inspect his vehicle because a set of number plates bearing the same registration number of his vehicle has been found near another truck. He must clearly have been placed on his alert at that stage. After a visit to his own vehicle, he's taken to the police headquarters and is cautioned, although not arrested. Even if at that stage he was under some self-induced impression that he was merely going to be a witness, then that impression must have been dispelled very shortly thereafter when he was formally arrested by DPC 3041.

He was then taken to Wan Chai Police Station and locked up. His personal possessions were taken away from him. He was taken out to the scene where his motor vehicle was again the following day, certainly in the company of one or more police officers. He was taken back and a further statement was taken from him. He was then granted bail. It is inconceivable that at that stage he would have been under any misapprehension that he was merely assisting police with their enquiries. He wrote out in his own hand on four separate and distinct occasions that the contents of the statement were an accurate record of the questions asked and the answers he provided. I do not accept the 2nd accused's version at all.

I referred to whether he may have been under any self-induced impression that he was simply going to be a witness. I used that phrase because I am entirely satisfied that DPC 3041 did nothing to inculcate such an impression in the accused. It is correct that a court has a residual discretion to exclude evidence which is otherwise properly admissible. If a police officer set out deliberately to raise a belief in a suspected person that he was simply going to be a witness, then that would be a proper case for the court to exercise its discretion. I've indicated that I find as a fact that that did not happen in this case. It is not a matter in which the court can properly exercise any discretion. The conduct of DPC 3041 on the evidence before me was perfectly proper and I am satisfied beyond all reasonable doubt that these statements were made freely and voluntarily by the 2nd accused. They are consequently admitted in evidence ...."

10. This appeal rests upon the submission that Principle (d) in the preamble to the 1992 Rules and Directions for the Questioning of Suspects was breached in the course of the investigation. That principle is:

"When a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he should, without delay, cause that person to be charged or informed that he may be prosecuted for the offence." (Emphasis supplied.)

11. It is submitted that the failure to warn the applicant at the stage when the police were at his home, or at least on the way back to the police headquarters, constituted a material irregularity in their investigation. It is suggested that the judge failed to recognize this breach and that this undermined his assessment of the evidence. The assertion advanced on behalf of the applicant is that he, until charged some six months later, believed that he was to be a witness. It is submitted that this lends weight to the suggested seriousness of the breach. Having examined the reasons of the judge on the voire dire, we find it difficult to see how these submissions can be validly advanced. Indeed, in our view they fail in limine. The judge accepted, as he was entitled to, that the DPC was a witness of truth. He accepted the evidence of the DPC that he was initially uncertain as to whether there was sufficient evidence to prefer a charge. We turn back to the words which we have just read:

"At this stage, in fact on his own evidence, DPC 3041 was initially somewhat uncertain. For that reason he did not rush in and arrest the 2nd accused at the outset."

12. In order to ensure that the trial judge correctly appreciated the evidence of the DPC we set out his evidence in this regard as it appears in the transcript:

"Q. But before any record of interview taken from him, had you ever asked him verbally where he was in that afternoon?

A. No.

Q. You did not also ask him why the number plate which bear his own number plate number found at the scene?

A. No, I did not ask.

Q. But do you find it strange that if you did not ask him, why you subsequently taking him back to the headquarters for statement-taking purpose?

A. No, I've already told him that his licence plate were found and I've told him I have requested him to assist in our investigation and he expressed he was willing to do so.

Q. But in fact not much help he can render to you because you are sure that he had no part to play at the scene in the afternoon.

A. Although at that time I felt it was most likely that he was not present at the scene during the time the incident took place, he was still very suspicious to me, so I requested him to go back to our head office for further investigations.

Q. Officer, if you had found him to be suspicious, why you did not simply arrest him?

A. Suspicion cannot be evidence. At that time we didn't have any evidence to show that he has any connection with this case.

Q. Officer, the number of his number plate was found at the scene.

A. Right.

Q. And the stolen good in question is more or less the same model or size as the defendants.

A. So?

Q. And the words on his compartment more or less tally with the character sample that you see at the scene.

A. Right.

Q. But with all these evidence, are you still saying that you have no sufficient evidence to arrest him?

A. I think it was insufficient because all these evidence could be found too easily.

Q. I put it to you that in fact before you invited this defendant back to the police station for further enquiry, for further statement-taking, you had induced him to the effect that, to start with, you know that the main culprit wasn't him. If he is co-operative, police would not prosecute him and in fact he would be a police prosecution witness.

A. No, I did not say such thing."

13. Thereafter the officer took the statement in which the applicant admitted involvement in the conspiracy. There was, on the evidence which the judge accepted, no failure to inform the applicant at an appropriate time that he might be prosecuted. The police officer was suspicious of him and he asked him to go back to the police station to assist in the police investigation. He was then cautioned, he then gave an incriminating statement and he was then arrested.

14. There was no impropriety of any sort in what occurred. There is nothing in the grounds that have been argued and the application for leave to appeal against conviction is, therefore, dismissed.

15. The facts have already sufficiently outlined in the judgment given by this court when refusing the 2nd applicant application for leave to appeal against conviction.

16. The 1st applicant was convicted of handling stolen goods and of resisting a police officer in the execution of his duty. The 2nd applicant was convicted of an amended charge of conspiracy to handle stolen goods.

17. The trial judge when sentencing said:

"In R. v. Chiu Ko-wai, (1992) 2 HKCLR 219, a sentence of three years imprisonment after a plea of guilty was, on the then level of sentencing, regarded as being '... on the high side', and was reduced to 2.5 years. The Court there sounded the warning, however, that '... for the future, courts would be entitled to consider passing substantial prison sentences to deter those who engage in the stealing and disposal of cars. If there are aggravating circumstances, such as organised criminal syndicates, these would justify increasing the sentence still further.' In that matter the Accsued was transporting to China a single stolen motor car on a sampan. Allowing the usual one-third discount for a plea of guilty this case suggests a sentence of 3 years 9 months after trial."

The judge went on to state that he considered that the proper starting point was five years before considering enhancement for mitigation. He reduced the starting point to four years in the case of the 1st applicant because of the lesser role, that of a painter, which he was prepared to accept that applicant had played. He imposed a sentence of three months on the second charge and ordered that to be consecutive to the sentence imposed on the first charge. He was satisfied that the 2nd applicant was to receive a substantial reward for his part. When so doing he appears to have been relying upon a document which was handed up to him when he was considering whether there should be enhancement of sentence under the Organized and Serious Crimes Ordinance. This indicated that the fee for a cross-border driver is $30,000 to $50,000. The 2nd applicant had, of course, admitted that he was to receive $40,000.

18. The judge was satisfied that in his case there was no proper reason which would require a reduction from the starting point. We say at the outset that the starting point adopted by the judge of five years was in no way excessive. When so doing, we rely upon The Attorney General v. Chan Sik-ming, (1996) 2 HKCLR 154.

19. The 1st applicant, in his appeal against sentence, has had only one ground argued by Mr. Poll and that is that in the circumstances of the case, the sentence was manifestly excessive in view of the role played by the applicant. We are satisfied that there is no merit in this contention. The judge took a correct starting point and, given the lesser role, he gave what we are satisfied was a proper discount. The applicant was an essential cog in the criminal machine which steals, disguises and ships cars out of Hong Kong into China. The sentence imposed was a proper one and this application is refused.

20. The 2nd applicant has had three grounds argued by Mr. Haynes, the first is that the starting point was too high because he had failed to take into account that the conspiracy was not fully worked out. We are satisfied that there is nothing in this ground. The starting point was one for a conspiracy, whatever stage it had reached, of this nature. Indeed, we think that the applicant was fortunate that the judge did not see fit to enhance the sentence in accordance with the provisions of the Organized and Serious Crimes Ordinance.

21. The second ground is that insufficient allowance was made for the "substantial mitigating feature that the applicant was only on stand-by and had not yet embarked illegal deliveries. We find this submission a little difficult to understand. The applicant was sentenced for being a member of a conspiracy. The fact that he was at the time on stand-by was fortuitous. The criminal scheme was frustrated because the police at an early stage had stumbled onto the scene where the vehicle was being painted. There is not merit in this ground.

22. The final ground is that insufficient weight was given to the fact that the applicant had "to an impressive extent reformed his character". It was argued by Mr. Haynes that he was in a vulnerable position, being a person who had a criminal record, when he was approached by those who were the masterminds behind this attempt to smuggle a vehicle from Hong Kong into China. We have borne in mind what has been said by Mr. Haynes in this regard but we are nonetheless satisfied that that is not a matter to which any weight can properly be given in mitigation.

23. This application for leave to appeal against sentence must also, therefore, be refused.

Representation:

Mr. Derek Pang, S.A.D.P.P. (D.P.P.) for the Respondent.

Mr. Michael Poll instructed by Messrs. Chong Leung & Co. for the 1st Applicant.

Mr. John Haynes instructed by Messrs. Kwan & Kwan for the 2nd Applicant.