R. v. Yeung Kwok Fai

HCMA000901/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.901 OF 1995

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Coram : Hon Duffy, J. in Court

Date of hearing : 24 January 1996

Date of delivery of judgment : 16 February 1996

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J U D G M E N T

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1. This is an appeal against a conviction for theft. The Appellant is a senior inspector of police with 19 years service. He was charged and convicted for stealing some of the working parts and dial of a Rolex watch which was in police custody as evidence for a criminal trial. At that time the Appellant was the Commander of the Administration and Support Sub-Unit at Wong Tai Sin and in charge of the handling of court exhibits. He had received that posting on 19th January 1995.

2. The watch came into the custody of the police on 4th June 1993, and it passed through a number of policemens' hands between then and the time it was in the Appellant's custody, following his posting in 19th January 1995. It was examined twice by Mr Chiu King Shui of Rolex, first on 27th January 1994 when he stated it to be genuine, and again on 27th February 1995 when he stated that some of the parts were fake. There was no evidence as to the value of the parts stolen, nor was there evidence as to how easy or difficult it might be to remove these parts and replace them with fake parts.

3. Evidence was led that until the time that the Appellant had charge of the exhibits, and therefore of the watch, none of the police officers who had had the watch in their custody had tampered with it. On 27th February 1995, a check was conducted on the Appellant's safe. During the check a discrepancy was noted between the number on a Valuable Property Envelope (VPE) kept in his safe and that recorded in his safe register. The Appellant was questioned about this and made a statement. In that statement the Appellant said that the exhibits in relation to this case had been opened in court on 26th January 1995, and then resealed in another VPE. He also said that the prosecuting counsel in the case had requested that the old VPE be opened in court, because he wanted to have a look at the exhibits. He said that when he returned from court, he put the old VPE in the safe and forgot to put it in a new envelope. It was only later when checking the safe that he realised his mistake. He said that he had been unaware that he had to make an entry in the register. The exhibits and the old VPE were placed in a new VPE. On 28th February 1995, the Appellant was cautioned in relation to the theft of parts of the watch and gave an interview under caution. Once again he repeated that the VPE containing the watch had been opened in court on 26th January in order to show it to the prosecutor. He said that after court the exhibit was taken back to the police station and put into the safe, but he had forgotten to put it into an additional VPE and have it resealed. He discovered his mistake on 20th February when he opened the safe, so he told the property clerk to put it into an additional VPE on his behalf. He said that between the time it was replaced in the safe on 26th January until he discovered it in the old VPE on 20th February, no one else had touched it. In that interview, he admitted that he himself wore a Rolex watch.

4. Mr John Griffiths, Q.C., who appeared for the Appellant on the appeal, though not in the court below, advanced a number of grounds of appeal. Describing this as a very unusual case, he reminded the court of the evidence that the Appellant was a man with a salary of $40,000 per month, plus housing allowance, whose wife was the managing director of a restaurant company earning $110,000 per month, and whose flat was worth $6m, with a mortgage of about $1.4m. He further reminded the court that two witnesses, Mr Alan So, a barrister, and the Appellant's wife, had given character evidence for him.

5. Mr Griffiths submitted that between 4th June 1993 and 19th January 1995, when the Appellant was put in charge of the Exhibits Sub-Unit, there were many opportunities for many police officers to have tampered with this watch. He also submitted that Mr Chiu, the employee of Rolex, who examined the watch on two occasions, was in a perfect position to have substituted the fake parts for genuine parts.

6. The evidence in the case had been principally adduced by way of statements admitted under s.65B of the Criminal Procedure Ordinance. Some oral evidence had been called, but the bulk of the evidence was admitted in that way. Included among the statements submitted were two statements from Mr Chiu of Rolex. This is what the learned Magistrate had to say about the evidence of Mr Chiu in his Statement of Findings :

"Counsel for the appellant argued that there was a possibility that the parts of the Rolex watch could have been changed by Mr Chiu of Rolex (HK) Ltd. while he examined the watch. Mr Chiu's evidence was admitted under s.65B, Criminal Procedure Ordinance. His evidence was not challenged or was he cross-examined. There was not the slightest clue that I could doubt the integrity of Mr Chiu. The suggestion by counsel for the appellant was a wild suggestion and I rejected it."

Mr Griffiths submitted that simply because Mr Chiu's evidence was unchallenged by cross-examination did not mean that the appellant accepted that he was a witness of truth. He submitted that it remained the duty of the prosecution to exclude the possibility that either Mr Chiu's first examination of the watch was inaccurate, or that he substituted the parts himself. He certainly, Mr Griffiths submitted, was the one witness in the trial who would have the knowhow and the motive for removing these watch parts, and that must be an important factor to be taken into account in deciding whether he should be eliminated from the list of suspects. Mr Griffiths submitted that the Magistrate was wrong to ignore such factors and apparently not to have taken them into account.

7. When the statement of Mr Chiu was admitted under s.65B, there was, of course, no admission by the appellant that Mr Chiu's evidence was true. His evidence simply stated that he had examined the watch on one occasion and found it to be genuine, and on another occasion, found it to be partly fake. It was part of the Magistrate's task to consider Mr Chiu's evidence in the light of all the other evidence to decide whether he could, based on that evidence, be sure of the Appellant's guilt.

8. Furthermore and most importantly, it must be remembered that Mr Chiu was in fact called as an expert witness. And while the defence, by agreeing to the admission of the statement of Mr Chiu under s.65B, indicated that it did not wish to cross-examine Mr Chiu, it was nevertheless for the prosecution to establish certain matters in relation to his expertise. Firstly, Mr Chiu had to be established as an expert, and accepted as such by the Magistrate. All that was said of Mr Chiu's capacity as an expert was that he had been repairing Rolex watches since 1964 and supervising others to do so. I do not consider that that was sufficient evidence to establish that Mr Chiu had the necessary expertise in this matter. The learned Magistrate made no decision as to whether he accepted Mr Chiu as an expert in these matters.

9. While the watch itself was an exhibit in the case, there was no evidence before the court demonstrating how it was that some parts were fake and some parts were genuine. It is the duty of the expert to :

"furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusion so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence" (Davie v. Edinburgh Magistrates (1953) SC 34.40)

There was in this case no evidence as to how Mr Chiu came to the conclusions which he reached. It was incumbent upon the Crown to call such evidence. In the absence of such evidence, the expert opinion of Mr Chiu was meaningless and worthless. The admission of the statement of Mr Chiu under s.65B did not cover these matters.

10. In the event, therefore, the fact that the Crown did not prove by admissible evidence that the parts of the watch found in February 1995 were fake is fatal to the conviction. I therefore allow the appeal.

Representation:

Mr Derek Pang, APCC (Ag.), for Crown

Mr J. Griffiths, Q.C., Mr Ching Y. Wong & Mr Raymund Chow (Chong,Leung & Co.) for Appellant