Chung Kam-to and Another v. The Queen

CACC000393/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 393 OF 1969

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Coram: Rigby, S.P.J., Huggins, J., & Pickering, J.

Date of Judgment: 17 December 1969

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JUDGMENT

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1. This difficult and troublesome case has caused this Court a good deal of anxious consideration.

2. The appellants were convicted in the Victoria District Court, Hong Kong, of the charge preferred against them of conspiracy to effect a public mischief contrary to Common Law. They now apply for leave to appeal against their conviction.

3. The charge as laid was that the two appellants "on divers dates between the 25th day of January and the 15th day of February 1969 ---- conspired together to arrange for a motor vehicle, registered number AB5742, to be licenced as a private motor bus without being inspected for roadworthiness by a Government motor vehicle inspector in accordance with instructions issued by the Commissioner of Transport under the Road Traffic (Registration and Licensing of Vehicles) Regulations."

4. Prior to the commencement of the trial further particulars of that charge were sought for by the defence and given by the prosecution. Although the trial of the case occupied a great deal of time and covered an immense amount of detail, the broad facts upon which the prosecution relied for the purpose of proving the case fell within a relatively narrow compass. At the material time the 1st appellant was an artisan in the employ of the Transport Department and was at that time attached to the Police Accident Inspection Service at Kaitak. The 2nd appellant was one of the seven motor vehicle inspectors employed by the Hong Kong Transport Department and was, at all material times, the only such inspector stationed at the Motor Vehicle Inspection Centre on Hong Kong Island. This Centre was known as the Caroline Hill Inspection Centre. There was evidence that the 1st and 2nd appellants were known to each other and that they had in fact at one time worked together in the Government of Hong Kong Transport Department, but there was no evidence whatsoever of any association between them at any time relevant to the proceedings in this case.

5. In March, 1968, a Mr. Chey of the Columbia Transport Company purchased a goods vehicle, registration number AB5742. He purchased it for the purpose of conveying the workers of his company from their living quarters to their place of work. For this purpose it was necessary for the vehicle to be licensed as a private bus. By correspondence with the Traffic Office over a fairly lengthy period of time he went through the necessary formalities required for this to be done, including the submission of plans for the conversion of the vehicle from a goods vehicle to a passenger vehicle. It would appear that he was content to leave the greater part of these arrangements to a Mr. Tsui, who was in due course to be the driver of the vehicle. The interior of the vehicle, of course, required very considerable alteration, including the construction of seating arrangements. This was carried out by the Luen Hang Vehicle Body Factory, the proprietor of which was a man named Yip. The work appears to have been completed about the end of January or beginning of February 1969, and from the date of its completion until the 11th of February, the vehicle remained in the custody and under the control of Mr. Tsui. The time duly arrived when an application was required to be made for the vehicle to be licensed for the purpose for which it was required to be put on the road, namely, as a private bus. There is evidence, to which it will be necessary later to refer, that the Road Transport Department required that, in the case of first-time applications for the licensing of public transport vehicles, all such vehicles should first be inspected and found to be roadworthy before such applications were granted and licences issued. The necessity for such a precautionary measure must be manifest to all. The vehicle in question was a fairly old vehicle, having been originally licensed in 1960. Yip's company had, in effect, undertaken the responsibility of altering and converting the interior of the vehicle into such a state and condition that it would be fit to be licensed as a private bus. It would seem implicit from the facts that Yip himself must have had some doubts as to whether the vehicle, after he had completed the conversion, would comply with the necessary requirements to make it fit to be licensed for the purpose for which it was required.

6. Yip knew the 1st appellant well and he knew that he was employed in the Transport Department. Yip saw the 1st appellant, spoke to him, and together they inspected the vehicle at San Po Kong where it was kept. This was about the end of January and before the vehicle had been returned to the custody and control of Tsui. It is unnecessary to refer to the details of the conversation that, according to Yip, then took place between him and the 1st appellant. It is sufficient to say that a day or so later Yip and the 1st appellant again looked at the vehicle, there was a further conversation between them - to which again we do not propose to refer - and Yip handed over to the 1st appellant the application form, Exhibit P2, for the granting of a licence in respect of this vehicle. Four or five days later the 1st appellant saw Yip, returned to him the application form, duly completed, together with a Certificate of Roadworthiness, Exhibit P3, in respect of that vehicle. A relevant part of that application form contains a certificate to the effect that: "I certify that I have inspected this vehicle and that the vehicle complies with the provisions of the Road Traffic (Construction and Use) Regulations, 1956". That certificate is signed "R. Buck, Motor Vehicle Inspector", and bears the date "7/2/69". Richard Buck is the name of the 2nd appellant. The Certificate of Roadworthiness, also dated 7/2/69, is also signed in the name "R. Buck".

7. Yip communicated with Tsui and in due course the documents, Exhibits P2 and P3, were handed to a Mr. Poon, who was to arrange the insurance of the vehicle and present the documents at the Licensing Department for a licence for the vehicle to be issued. Mr. Poon handed over the documents to the clerk in his employment for that clerk to take along to the Transport Office for the necessary licence to be obtained. Upon presentation of the documents at the Licensing Department, the Licensing Officer there observed that the application form itself stated a seating capacity of 30 (excluding the driver) and standing capacity for a further 15 persons. As regards the standing capacity, the original figure of 8 had been crossed out and 15 (fifteen) substituted therefor. The standing capacity appeared to be very high. The official took the form to Mr. Tuttle, the Senior M.V. Inspector. After discussion it was arranged that the vehicle should be re-inspected. The application form was endorsed with the words "Re-inspection is required. Appt. fixed at 12/2/69 morning Transport Department" and initialled by Tuttle and dated 11/2/69. The documents were returned to the clerk who had presented them and, in due course that same day, returned to Yip. Yip spoke to the 1st appellant. On the afternoon of the following day, the 12th of February, Yip proceeded to the Caroline Inspection Centre where he saw the 2nd appellant and showed to him the documents, Exhibits P2 and P3. Both these documents, it will be recalled, bore the signature "R. Buck"; in the former document certifying that the vehicle had been inspected and found roadworthy, and in the latter, again certifying that the vehicle had been inspected, found roadworthy, and the Certificate of Roadworthiness issued. Both those documents were dated 7/2/69. Exhibit P3, the Certificate of Roadworthiness, indicated that the inspection had been carried out at H.K. (Hong Kong) as distinct from K. (Kowloon) or N.T. (New Territories). The Caroline Hill Inspection Centre was the only motor vehicle inspection centre operating in Hong Kong and the 2nd appellant was, at all material times, the only motor vehicle inspector there. After Yip had spoken to the 2nd appellant in his office, the 2nd appellant telephoned someone. It is accepted that that telephone call was in fact made to Mr. Tuttle. According to Mr. Tuttle, the 2nd appellant asked him why the re-inspection was required. Mr. Tuttle informed him that it was required to check the standing capacity. Despite the endorsement on the application form that the vehicle was to be presented for re-inspection on the morning of 12/2/69 at the Transport Department, it was not so inspected. It did not become available for inspection until the 4th of March. Mr. Tuttle inspected it on the 4th of March. He found no less than 19 defects in the vehicle, some of which - and, in particular, the mechanical defects, brakes and suspension - he regarded as very serious. As an engineer of 18 years experience, he expressed the view that such deficiencies as he found in the vehicle could not possibly have taken place within a month prior to the inspection of the vehicle by him; in other words, that they were the result of wear over a long period of time and would have been clearly visible to any experienced engineer who might have inspected the vehicle within the previous month.

8. On or about the 14th of March the 2nd appellant was present at an interview with the Commissioner of Transport at which Mr. Tuttle and the Chief Transport Officer were also present. At that interview the 2nd appellant was asked to explain why the vehicle had been passed when it was found by Mr. Tuttle to be in an unroadworthy condition. He said that he could not explain but he would make enquiries. Both the Application for Licence Form and Certificate of Roadworthiness were shown to him. He took notes from them and said he would see what the trouble was.

9. One further matter: three notebooks were produced in evidence at the trial. Each book bears a metal name plate firmly embedded upon the front cover, bearing the name "R. Buck". They were produced by a Mr. Guy, a motor vehicle inspector only recently engaged by the Road Transport Department who, in fact, only arrived in Hong Kong on the 27th of January and commenced work at the Caroline Hill Inspection Centre on the 10th February. Mr. Guy said the books belonged to Mr. Buck and were normally kept in Mr. Buck's office on his desk. Mr. Guy further said that when he arrived at the Caroline Hill Inspection Centre on Monday, 10th February, the appellant said to him that it would be a good idea if they each kept their own set of books. The books contained a daily record of vehicles submitted for inspection and entries were made relating to the vehicle number, the class of vehicle, whether it had passed or failed, etc. An entry in one of those books, Exhibit 6(c), is as follows:

The Registration Number is the same as that of the vehicle in question and the Detail Number R405 is the same number as that appearing on the Certificate of Roadworthiness (Exhibit P3).

10. The case for the prosecution, upon the charge as laid - together with the further particulars later given - was that the 1st and 2nd appellants had conspired together to arrange for this motor vehicle to be licensed without any prior inspection taking place, as was required to ensure that it was roadworthy and fit to be licensed. The conclusion would seem irresistible from the evidence of Mr. Tuttle that if an inspection had in fact taken place this vehicle would have been found unroadworthy; and accordingly unfit to be licensed. But the vital question for consideration is: was there sufficient evidence of any agreement between the 1st and 2nd appellants for the purpose alleged? A conclusion of that kind "is not to be arrived at by a light conjecture; it must be plainly established. It may, like other conclusions, be established as a matter of inference from proved facts, but the point is not whether you can draw that particular inference, but whether the facts are such that they cannot fairly admit of any other inference being drawn from them".

11. The words quoted above were said by Lord Loreburn, L.C. in the case of Sweeney v. Coote⁽¹⁾, a decision of the House of Lords. That case concerned a civil action brought by the plaintiff against the defendant alleging that he had unlawfully and maliciously conspired with other persons to injure the plaintiff in her business and employment. Those words apply even more cogently and forcibly where a criminal charge for conspiracy is brought.

12. The case for the prosecution was necessarily based upon 4 factors:-

The obvious inference was, and is, that a false Certificate of Roadworthiness was issued by the 2nd appellant. The further inference sought to be drawn is that that false Certificate was issued by reason of an agreement between the first and second appellant for that very purpose, namely, the issue of a false Certificate of Roadworthiness in respect of that vehicle. It is the latter inference which, in our view, presents grave difficulty. Undoubtedly, the circumstances are such that it must be a matter of grave suspicion that there was such an agreement between the 1st and 2nd appellants. But it is common knowledge that suspicion, however grave it may be, is not enough to sustain a conviction on a criminal charge. It is important, again, to emphasise that there is no evidence whatsoever of any association between the 1st and 2nd appellants - such evidence, for example, that they were seen together at all at this time; nor is there any evidence as to how, or by whom or in what circumstances, this application form came to be placed before the 2nd appellant; nor is there any evidence as to how, or by whom, it was returned to the 1st appellant. As this Court pointed out at an early stage in the course of the hearing of the appeal, there is nothing to indicate the possibility that in signing that application form without inspecting the vehicle, the 2nd appellant may not have done so out of gross negligence and dereliction of duty. Nor is there anything in the 2nd appellant's subsequent conduct which is inconsistent with such a view. It may be argued that if gross negligence was the explanation as to why the application form was signed by the 2nd appellant without examination of the vehicle, then it was for the 2nd appellant to go into the witness box and say so. This Court does not take that view. The case depended wholly upon circumstantial evidence. A conviction upon such evidence can only be sustained if the circumstantial evidence is such that a finding of guilt is not simply a rational inference but that it is the only inference which can be drawn from the facts established. Such an irresistible inference must exist before the accused person is required to give an explanation in rebuttal.

13. In conclusion we would only say this:

14. This is undoubtedly a borderline case. It is a case which has given us very great difficulty and caused us a good deal of anxious consideration; indeed, it is right to say that the decision we have reached is a majority decision of the members of the Court. But this Court, by a majority, has finally reached the conclusion, albeit not without some misgiving, that gravely suspicious though the circumstances undoubtedly were, they do not preclude the possibility - a not unreasonable possibility - that the 2nd appellant, in signing that application and issuing a Certificate of Roadworthiness, had acted with gross negligence and in dereliction of his duty, and the evidence was not sufficient to establish the existence of an agreement between the 1st and 2nd appellants as alleged in the charge.

15. We had in fact prepared a judgment dealing in considerable detail with the lengthy and careful arguments advanced to us by both counsel for the appellants upon the remaining grounds of appeal. There was, indeed, a fairly formidable argument advanced that there was no proper, or sufficient, evidence that the certificate endorsed upon the application form (Exhibit P.2) and the Certificate of Roadworthiness had in fact been signed by the 2nd appellant. However, having regard to the conclusion this Court has eventually reached, we do not feel it necessary, or even desirable, that we should make any further reference to the remaining grounds of appeal.

16. The appeals must be allowed, the convictions quashed and the sentences set aside.

Representation:

R. Arculli (Wei & Fu) assigned for 1st Appellant.

Sanguinetti (Seu & Liang) for 2nd Appellant.

M. Sandor, C.C. for Respondent.

Judgment delivered by the President.

(1) 1907 A.C. 221.