R. v. Fung Man Cheong and Another

CACC000383/1995

IN THE COURT OF APPEAL

1995, No.383
(Criminal)

-------------------------------

Coram: Hon. Power, V.-P., Mortimer, J.A. and Leong, J.

Date of Hearing: 20 March 1996

Date of Delivery of Judgment: 16 May 1996

----------------------

J U D G M E N T

----------------------

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

1. Fung Man Cheong, ("D2") and Chung To-keung, ("D4") faced one charge of handling stolen goods under s.24(1) and (2) of the Theft Ordinance. The charge was particularlized that they, together with two others, on about 31st day of March 1994, at Lok Ma Chau in the New Territories in Hong Kong dishonestly received certain stolen goods, namely two private cars, namely a BMW Registration No.ER 1386, the property of Lui Kwok-on and a BMW Registration No.DR 342, the property of Fok Yi-te, knowing or believing the same to be stolen goods. Each was convicted after trial before Hawkes, D.J. and each was sentenced to imprisonment for three years. Each now seeks leave to appeal against his conviction.

2. Section 24(1) of the Theft Ordinance is as follows:

"A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so."

3. The Crown evidence came firstly from Khalid Mahmood, a security guard of the Wah Kwong Container Park who said at about 11.30 p.m. on 30th March 1994 a motor vehicle CJ 1572 arrived at the park. It was later found that D2 was the registered owner of this vehicle. At the time he arrived at the park there were three men in it two of whom got out and went up to the security guard and offered him $10,000 if he would allow them to park two containers for about two hours. He refused and they left. They returned a short time later and offered him $2,000 not to tell anyone about their request. Again he rejected the offer. At about 12:15 a.m. the next day, the 31st March, the security guard saw two containers arrive in an open space adjacent to his yard. Shortly afterwards the vehicle CJ 1572 and another vehicle arrived at the scene. Subsequently two BMW motor vehicles were driven to the scene. The guard then saw about ten people in the area. His suspicions were aroused and he reported the matter to his employer who in turn reported it to the police. The police arrived shortly afterwards and the guard saw people running off in all directions.

4. The evidence of the police officer who arrived at the scene was that they found two 40' long container lorries and a private car FC 620 abandoned nearby. The keys were in the ignition of the private car and its engine was still running. A key ring was found in the private car and D4 subsequently admitted that among the keys thereon were the keys to his home and to other vehicles owned by him. He was later found to be the registered owner of FC 620. The two BMWs, which had been recently stolen, were found inside one of the containers and one still had its engine running. A car belonging to D4's brother was found abandoned not far from the scene. Police inquiries led to the arrest of the D2 and D4.

5. D2 made a cautioned statement after arrest at Wong Tai Sin Police Station at which we will look later. D4, who was arrested at his home on 31st March 1994, made the admissions already indicated as to the keys found in vehicle FC 620 but otherwise denied any involvement in the matter.

6. There was evidence from Ng Chun-ming, who said that he worked for D4 at the Fu Keung Transportation Company, the principal business of which was the transportation of containers. He said that he received instructions from D4 and in consequence had collected two containers from a container yard in Tuen Mun on 23rd March 1994 and 30th March 1994 respectively and had delivered those containers to a car yard in Wo Hop Shek. These two containers were the ones found at the scene by the police on 31st March. He went on to say that at D4's request he picked up a 2-door black Ford from D4's brother Chung To-shing and had handed it over to D4 at about 8:15 on the evening of 30th March 1994. He was unable to recall the letters of registration of that vehicle but it appears clear that it was FS 4187, the vehicle found abandoned not far from the scene.

7. The cautioned statement made by D2 was admitted after objection, the trial judge having been satisfied that it had been made freely and voluntarily. It was made at 21:04 hours on 13th April 1994 at the Wong Tai Sin Police Station and was taken by DPC 21092. The DPC first wrote a post recorded statement of the conversation which it was said had occurred at 7:51 p.m. on 13th April in the report room of Lo Wu Police Station. The material parts of this statement were as follows:

"Now, I arrest you because I have reason to believe that at 00:25 a.m. on 31 March 1994, at the open space behind Wah Kong Car Storage Yard, Luk Mei Tsuen, Lok Ma Chau, you and other people handled two reported stolen BMW private cars whose registration marks are DR342 and ER 1386 by loading them into a container in preparation for transporting them away."

The caution then followed and D2 replied:

"Sir, since you've known everything already, okay! In fact, I have nothing to do with the car theft case. I only helped drive the people to do the job. Well, if I am co-operative, please intercede for me!."

That concluded the first recorded statement and at 9:58 the officer went on:

"Now, I have questions to ask you in relation to your arrest and caution administered by me at 7:52 p.m. today at the report room at Lo Wu police post following the occurrence of a handling stolen property case. This case happened at Luk Mei Tsuen in Lok Ma Chau at zero hour on 31 March this year when two reported stolen BMW private cars DR342 and ER1386 were loaded into a container. After I had cautioned you Fung Man-cheong, you told me something."

The officer then went on to administer a caution in standard form and the applicant replied:

"I understand. Ah Wah asked me to help find a place for smuggling. It has nothing to do with me. I just found a place for him. That night, Ah Wah asked me to act as a lookout. I did not steal cars nor did I help load (them) into a container. Ah Wah said (he) would give me five thousand dollars, but I have not got the money. I did it out of my greed. I played no part in planning the case."

Later in the statement he said:

"Around the 24th to 28th of March, Ah Wah once came to my garage to discuss it with me. He suddenly said he wanted to find a place to send away smuggled goods. He asked me if I agreed to help. I agreed and then told him I would help him find a place. We had talked for two minutes on that occasion."

He then went on to describe the search for a place and the evening when Ah Wah had spoken to an Indian watchman who had refused to allow his container yard to be used to load goods at night. He told of further contacts between himself and Ah Wah and of a second visit to the container yard during which Ah Wah told the Indian watchman that the jobs would be done at the back of his yard and asked him not to report to the police. He said that the Indian again refused to co-operate but said "You do the jobs at the back of the open space. That space is not under the charge of me and I don't care about it." He then told of the occurrences on the evening in question saying that the three men in his car FC 620 went to the main entrance of Fairview Park where they waited until a Ford Lancer FS 4187 arrived which was packed with people. He said that, after some communication by walkie-talkie, his car led FS4187 to the open space behind the container yard and the driver of FC 620, alighted and Ah Wah asked him to drive that car; that he drove it away and the others remained "at the open space to prepare to do job"; that he and Ah Wah then "drove" the car around in the vicinity for about 15 minutes to see if the cops were there"; that Ah Wah was constantly using a walkie-talkie and a portable phone to contact others involved and was informed that the goods had arrived; that a BMW came to the filling station and was then driven away; that he was unsure of the model of the car but added:

"On that night, I had done jobs on two cars, one white BMW car and one dark-coloured BMW car. But I have forgotten the order."

He said that the second BMW arrived at the filling station and he was then sent to fetch another man and was then told to drive to the open space; that he was then told by Ah Wah to drive the car to keep a lookout outside:

"But I said that was not good because it would be very dangerous as the job was in progress on the open space. Ah Wah said he would pay me three thousand dollars more, that is, eight thousand dollars in total. I drove around to keep a lookout in the vicinity for about half minute. Then cops came to arrest people."

As to the arrival of the police he said:

"We heard somebody call out 'crackdown'. So all people ran away. I alighted from the car and went to the hillside to hide myself. (I) switched off the pager so that nobody knew my (whereabouts). I don't know how others left."

8. The trial judge dealt with that cautioned statement in the following way:

"When I consider the two cautioned statements, I have no doubt that, whilst he has admitted a certain involvement in the offence, he has sought to minimise his role.

When I consider all the surrounding circumstances, I am satisfied that, like the 1st accused, the 2nd accused must have known what was really going on. I am satisfied that he must have known that the two BMWs were stolen and that they were being dishonestly received.

By his admissions that he helped Ah Wah find the place and that he acted as a look-out, I am satisfied that the 2nd accused has admitted to being a party to the offence of dishonestly receiving the stolen BMWs, knowing them to have been stolen.

Taking into account all the evidence before the court, I am satisfied that the charge has been proved against the 2nd accused beyond reasonable doubt. I should add that I took into account the accused's clear record when considering both credibility and propensity."

9. The judge then went on to deal with the evidence against D4:

"The evidence relevant to the 4th accused is that he was the registered owner of FC620, the key to that car was still in the ignition and among the bundle of keys on the keyring were keys to the accused's home and other vehicles belonging to him, the two containers found at the scene had been transported from Tuen Mun to Wo Hop Shek on the instructions of the accused, one of them on the day before the offence, and that the accused had made arrangements for his brother's car, FS4187, to be delivered to him at about 8:15 p.m. on the 30th March 1994. There was also evidence that the 4th accused has a clear record. The evidence against the 4th accused is, of course, circumstantial evidence.

When I consider all this evidence and the absence of any other reasonable explanation, I am satisfied that the inescapable inference is that the accused must have been present when the offence was committed and that he must have been involved. Bearing in mind all the surrounding circumstances, the accused must have been aware that the two BMWs were dishonestly received and that they were stolen. Accordingly, I am satisfied that the charge has been proved against the 4th accused beyond reasonable doubt. Naturally, I also took into account the accused's clear record when considering my decision."

10. Mr. Dykes, who appears for both applicants, argues very similar grounds for each. It is the first ground for D2 that:

"The learned judge erred in finding that the defendant knew that the motor cars the subject of the charge were stolen goods. The defendant did not admit that he knew or believed that he was helping in the disposal of stolen motor vehicles and the evidence did not permit of such finding it being wholly consistent with the defendant's participation in a clandestine enterprise to smuggle motor cars into China which had not been stolen, a different offence contrary to provisions of the Import and Export Ordinance."

We find no merit in this submission. It is true that D2 did in his statement speak more than once of smuggling the goods into China, however, it was clearly open for the court to infer from the statement when read as a whole that he was well aware that the two cars were stolen. The inference was, in our view, an irresistible one. The judge cannot be criticized for finding that the statements left him in "no doubt that whilst he has admitted a certain involvement in the offence he has sought to minimize his role" and that he "must have known what was really going on. I am satisfied that he must have known that the two BMWs were stolen and that they were being dishonestly received."

11. It is the first ground of D4 that

"The learned judge erred in finding that the defendant knew or believed that the motor cars the subject of the charge were stolen goods. The defendant did not admit that he knew or believed that the motor cars were stolen and the circumstantial evidence which linked the defendant to place where the stolen cars were being loaded into trailers did not permit of such a finding it being wholly consistent with him participating in a clandestine enterprise to smuggle cars which had not been stolen into China, a different offence contrary to provisions of the Import and Export Ordinance."

12. Having considered the evidence against D4, and in particular the fact that he arranged for the two containers to go to the scene, that his car not only with its keys but also with his house keys and the keys of other cars owned by him was found abandoned at the scene and that he arranged for his brother's car to be taken to the scene, we are quite satisfied that the judge was entitled to proceed to the finding that

"When I consider all this evidence and the absence of any other reasonable explanation, I am satisfied that the inescapable inference is that the accused must have been present when the offence was committed and that he must have been involved. Bearing in mind all the surrounding circumstances, the accused must have been aware that the two BMWs were dishonestly received and that they were stolen."

13. The second ground is the same for each of the applicants. It is submitted that the judge:

"erred in finding that the defendant had dishonestly received stolen motor vehicles. Assuming that the defendant knew or believed that the motor cars were stolen vehicles, the evidence was only consistent with the defendant having handled them by dishonestly undertaking or assisting in the removal or disposal of the motor vehicles for the benefit of another person and not him acquiring possession of them so as to have committed the offence of handling by receiving. Where the prosecution has charged a specific form of handling under s. 24(1) Theft Ordinance, Cap.210 (either handling by receiving or handling by undertaking or assisting in the retention, removal, disposal or realisation of stolen goods by or for the benefit of another) there can be no valid conviction for an offence of handling if the evidence discloses a form of handling which is different to the one charged."

14. Mr. Dykes submitted that the most the evidence did here was to establish handling by assisting in the disposal of stolen goods and that as there was no evidence that either applicant had taken possession of the cars, such as would be necessary to establish the offence charged, handling by receiving, neither applicant could be found guilty of that offence. In making this submission he relied upon David John Nicklin (1977) Cr.App.R. 205. In that case the applicant was apprehended at a scrapyard into which he had driven a load of stolen lead. It was in his defence that he did not know that the lead was stolen when he loaded it into the van and had only become suspicious about its origin as he was driving it in the van to the scrapyard. It was contended that he had not received the stolen goods at the time of picking up the lead as he did not know that it was stolen and had never thereafter reduced it into his possession as he was carrying it for and at the direction of others. It was contended that when in the course of the journey he realised that the goods must be stolen he did no more thereafter, than assist in their removal. It seems clear that the evidence to sustain the conviction rested upon his statement that he had, upon becoming aware that the lead was stolen, been prepared to continue the journey undertaken on behalf of others and to deliver it to the scrapyard. The Court of Appeal said, at p.207:

"In his summing-up he directed the jury that although the appellant was indicted only for handling the goods by dishonestly receiving them, knowing them to have been stolen, they could find a verdict of not guilty of handling as charged but guilty of the other form of handling which he had dictated to them. They duly returned a verdict in those terms."

The verdict which the judge had dictated to them was

"Not guilty of handling as charged but guilty of handling stolen goods and dishonestly assisting in the removal or disposing of them for the benefit of Kevin Davies knowing or believing the same to have been stolen."

15. The judge was here directing the jury that on an indictment based squarely on the first limb, handling by receiving, the defendant could be convicted of handling by assisting, i.e. the second limb. The Court of Appeal went on to say:

"In those circumstances it seems to this Court that the only charge which the jury had to consider on this count was the charge of receiving. They were told that they could convict of another charge, a charge of assisting in the removal. They did so. That means that the appellant was convicted of something which he was willing to admit but the prosecution was not willing to accept, and he was convicted of a form of handling with which he had not been charged. As there was no amendment of the indictment either by deleting the words `by receiving' from the third count or by adding a second count, charging him with handling by assisting in the removal of the stolen goods, this conviction of handling by assisting in the removal of stolen goods cannot be sustained and must be quashed."

This case depends very much upon its narrow facts. The defendant was denying receiving, saying that he never knowingly reduced stolen goods into his possession, but was prepared to admit that he was assisting in the disposal of those goods and it was this admission which provided evidence founding the conviction. What was held was that in such circumstances he should not have been convicted on an indictment alleging handling by receiving as he was specifically denying that offence but was admitting an offence not charged, i.e. handling by assisting in the disposal.

16. This is a far cry from the facts of the present case. In the present case the applicants were jointly charged as members of a group of men who were handling by receiving stolen motor cars. The judge was, as we have already made clear, entitled to find that they had knowledge that the cars were stolen. He was also entitled to find, as we have indicated, that the cars were being loaded into containers by the group preparatory, it seems clear, to exporting them from Hong Kong. It is, we are satisfied, unarguable that at the time they were being loaded the cars were in the possession of the group. The fact that one or other member of the group was performing some peripheral duty, such as lookout, did not, in law, make him any the less responsible for the activity of the group. To suggest that a lookout, in such circumstances, is not liable for conviction upon a charge of handling by receiving but is only an aider and abettor of the receivers and should be charged under the second limb of s.24 has no merit either in law or common sense. We are satisfied that such an offender can properly be charged as one of the receivers and that the second ground of appeal must in the case of each applicant also be rejected.

17. The applications are refused.

Representation:

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent.

Mr. Philip Dykes assigned by D.L.A. for both Applicants.