R. v. Ng Kwok Ping

CACC000405/1996

IN THE COURT OF APPEAL

1996, No.405
(Criminal)

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Coram: Hon. Power, Ag. C.J., Ching, J.A. and Saied, J.

Date of hearing: 10 January 1997

Date of judgment: 10 January 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of theft contrary to the Theft Ordinance which particularized as follows: that he, on 26th March 1996, on board lighter Tin Ming No.1, registration No.21603Y, at Yau Ma Tei Typhoon Shelter, Kowloon, in Hong Kong, stole 381 packs of raw silk on board, the property belonging to Unisilk Ltd. He pleaded not guilty to that charge and was convicted after trial before Judge Longley in the District Court and sentenced to imprisonment for 3½ years. He now applies for leave to appeal against both conviction and sentence. He is represented as regards the conviction application by Mr. Lunn, Q.C., with him Mr. Dominic Yeung.

2. It was the Crown case that at around 9 p.m. on 26th March 1996, the applicant with the assistance of other men, stole 381 packets of raw silk from a cargo of 761 packets which was in the hold of a lighter moored in Yau Ma Tei Typhoon Shelter. It was the Crown allegation that the theft was effected by transferring the 381 packets from the lighter into the Chinese vessel of which the applicant was the master.

3. There was no dispute that four men had loaded cargo onto the applicant's vessel and there was no dispute that 1½ hours later it was stopped when under way. The police evidence was that the vessel did not reduce speed when first ordered to do so and had to be chased and boarded. Indeed it was an agreed fact that this was so. That appears in paragraph 4 of the Agreed Facts which reads as follows:

"The description of the Chinese vessel was sent to all sea divisions of the police. At 2230 on the same day, Sgt.21614 and his team members were on board of police launch PL25. They found a vessel 'Dong Hang 57' which was similar to the description as provided. When PL25 reached the side of the Vessel at the same speed at 2235 hours on the same day, Sgt.21614 and his team members switched on the police blue light and used a loudspeaker to order the Vessel to stop for investigation. The Vessel did not reduce the speed. PL25 then chased after the Vessel side by side and at the same time called for assistance. Eventually, Sgt.21614 jumped onto the deck of the Vessel from PL25 and intercepted the Vessel at 2240 hours on the same day."

That agreed facts put beyond argument that there was a chase and a boarding before apprehension.

4. The applicant made two statements after arrest. In the first he said he had come to Hong Kong from Zhuhai intending to collect palm oil and take it back to Zhuhai. A small plastic boat had approached his vessel when he was at the vicinity of Yau Ma Tei and asked for help in delivering a quantity of goods at night. He had not known that the goods were stolen. He was sailing to Tuen Mun to collect some plastic goods the following day before returning to China. Ten minutes later he made a second statement in which he said, and I take this passage from the Reasons for Verdict:

"that he had told lies previously, in particular when he said that the vessel was going to sail to Tuen Mun to collect goods. He said he had received a call from a man called Ng Yiu-wah, who came from Dongguan. Ng had asked him to convey a quantity of goods from Hong Kong to Panyu in China. He had instructed the defendant to contact a man called Fat Kee in Hong Kong. The defendant had telephoned Fat Kee, who had instructed him to take his vessel to Yau Ma Tei at around 8 p.m. He did as instructed and three men loaded the cargo in question into his vessel. He was then asked to sail off and he then sailed his vessel for Panyu. He did not know if Fat Kee was present when the goods were loaded onto his vessel."

He gave evidence in which he adopted the contents of his second statement. Under cross-examination, he said that when he was stopped by the police he was sailing to Tuen Mun to pick up plastic goods the following morning on Fat Kee's instructions and not, as he earlier said, in the second statement to Panyu. The trial judge posed the following questions to himself:

"The question for the court is whether he was doing so dishonestly with the intention of permanently depriving the owner of it."

He then, having referred to the applicant's good character and to the open way in which the goods had been loaded onto his vessel, said:

"I am satisfied that the evidence is overwhelming, that the defendant was acting dishonestly with the intention of permanently depriving the owner of its goods. The defendant was master of this vessel. He had no manifest, shipping documents or indeed any documents at all relating to the goods in question, or indeed any other goods which he claimed he was going to pick up in Tuen Mun. He had brought this vessel in from China and yet had not informed his agents of his arrival or indeed of his contract with Ng to transport goods from Hong Kong, even though on his evidence it was necessary to inform the company so that a report would be made to the Immigration Department before he took on goods in Hong Kong. He is a man who, it is clear from his telephone records, readily uses his mobile phone. I am satisfied that he would have notified his agents if he had had legitimate business in Hong Kong. I disbelieved his evidence that he would obtain shipping documents after all the remainder of the goods were loaded in Tuen Mun, or that he would go to his agent to get a document to show what kind of goods were being conveyed by his vessel. I am satisfied that he was telling the truth in his second statement, insofar as he said he was not sailing to Tuen Mun to collect goods but to a destination in China.

The defendant maintained that he did not consider that he was doing anything wrong when he was stopped by the police launch that night. Yet he failed to give any adequate or credible explanation as to why he should, on his admission, lie to the police in his first record of interview, exhibit P1, and why he should fail to give them the explanation he has now given the court.

I am satisfied that the only reasonable inference from those lies was that he had stolen the goods in question and was trying to give exculpatory account of his possession of them. I am satisfied that his lies did not stop there and the reason for the discrepancy as to his destination between his second record of interview, which he adopted as his evidence-in-chief, and his evidence in cross-examination was that he was simply making up his evidence as he went along in an attempt to evade liability for his theft of these goods. In addition to these matters I am satisfied that the defendant, who was at the helm, is lying when he said that he stopped the vessel as soon as he was ordered to do so by the police. I accept that the admitted facts are true. I am satisfied that he failed to stop at once because he knew that he had stolen goods on board.

In conclusion, in the light of the defendant's presence when the goods were loaded onto his vessel and the matters I have referred to, I am satisfied that the only reasonable inference is that the defendant was party to the theft of those goods. I find him guilty of the charge he now faces." (Emphasis supplied.)

5. The application as argued by Mr. Lunn rests upon the judge's statement in the passage set out above:

"..... the only reasonable inference from those lies was that he had stolen the goods in question and was trying to give exculpatory account of his possession of them."

Mr. Lunn argues that there were other reasonable inferences to be drawn from those lies and submits that this was indicated by the applicant himself when he admitted at the beginning of his second statement that he had told lies because he "was afraid of getting into trouble". He submits that the trouble to which the applicant referred was the trouble into which he might have got for carrying unmanifested cargo. Mr. Lunn submits that, as the judge plainly relied, inter alia, upon this inference when convicting, the conviction is unsafe and unsatisfactory. The judge was plainly satisfied that the applicant had lied and, given the evidence, he was fully entitled to be so satisfied. Even if the judge went too far, and we are not by any means satisfied that he did, in drawing inferences from the lies this does not assist the applicant as there was, quite apart from this inferential evidence, overwhelming evidence accepted by the judge which established the guilt of the applicant. The conviction is in our view neither unsafe nor unsatisfactory and the application must be refused.

6. The applicant has appeared in person in his application for leave to appeal against sentence urging that insufficient weight was given to his previous good character, the limited role which he played and the relatively low reward that he was to receive.

7. The judge when sentencing said:

"..... I have borne in mind that you have not been in trouble before. Hong Kong depends upon its trade and upon its harbour. Those who come to Hong Kong to trade are entitled to assume that their goods are safe within the harbour. Courts must, by their sentence, make it clear the very serious view it takes of those who enter this harbour and steal from vessels moored there, particularly when, as in this case, it was obviously a carefully planned operation involving a valuable cargo."

8. Having taken those matters into consideration, the judge was satisfied that the appropriate sentence was 3½ years. We cannot find that the judge was in any way wrong in assessing that sentence. He clearly had in mind the previous good character of the applicant and the role which he played but he also, properly, had in mind the seriousness of this offence. The application has no merit and must also be refused.

Representation:

Mr. D.G. Saw, SACP (Crown Prosecutor) for the Respondent.

Mr. Michael Lunn, Q.C., and Mr. Dominic Yeung instructed by Messrs. Knight & Ho for the Applicant.(re Conviction)

Applicant in person (re Sentence)