HKSAR v. Pang Oi Kwok

CACC 463/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 463 OF 2003

(ON APPEAL FROM DCCC NO. 557 of 2003)

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BETWEEN

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Before: Hon Stuart-Moore Ag. CJHC, Yeung JA & Tang J in Court

Date of Hearing:  5 August 2004

Date of Judgment: 5 August 2004

Date of Handing Down Reasons for Judgment: 13 August 2004

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Reasons for Judgment

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Hon Yeung JA (giving judgment of the Court):

1.On 5 August 2004, we dismissed the application for leave to appeal against conviction. We indicated that we would give our reasons in writing and this we now do.

Background

2.The applicant, Pang Oi Kwok appeared before Judge Chua in the District Court on an indictment consisting of five counts of handling stolen goods.

3.The applicant pleaded not guilty and was defended by Mr John Hemmings on the instruction of Messrs Lawrence KY Lo & Co. (Mr Lo)

4.The applicant was acquitted of the 2^nd and 3^rd charges, but convicted of the 1^st, 4^th and 5^th charges.

5.On 30 October 2003, Judge Chua sentenced the applicant to four years' imprisonment on each of the three charges to run concurrently.

6.The applicant initially applied for leave to appeal against both conviction and sentence.

7.On 3 May 2004, the applicant filed a notice abandoning his application for leave to appeal against sentence.

8.We are therefore only concerned with his application for leave to appeal against conviction in respect of the 1^st, 4^th and 5^th charges.

9.The applicant kept a stall in Apliu Street, Sham Shui Po, selling second-hand goods. 

10.The prosecution alleged that the applicant had, on five occasions between 17 January 2002 and 6 January 2003, received stolen goods, including five “Rolex' watches, one gold pendant, four LCD monitors and three compact computer towers, knowing or believing them to be stolen goods.

The Prosecution Evidence

11.On 10 January 2003, a police party searched the applicant's home at Serene Garden on Tsing Yi Island and in a drawer of a sideboard in the living room, the police found 57 items of watches and ornaments including a gold pendant (P4, the subject matter of the 2^nd charge) and one “Rolex” watch (P7, the subject matter of the 3^rd charge).

12.The police also searched a safety deposit box of the Bank of China in the joint names of the applicant and his wife. Ninety-six items of watches and ornaments, including two “Rolex” watches (P1 and P3), the subject matters of the 1^st charge) were seized.

13.The applicant then took the police to a storeroom opposite to his stall in Apliu Street where four LCD monitors (P9, the subject matters of the 4^th charge) and three compact computer towers (P10, the subject matters of the 5^th charge) were found.

14.The following facts were admitted at trial:

(1) The two “Rolex” watches (P1 and P3) were identified by Cham Ting-wah (PW1) and Cheung Kwai-fong (PW2) as items stolen from them in a robbery on 17 January 2002.

(2) Chan Po-chu (PW3) identified the gold pendant (P4) as having been stolen from her during a burglary at her home on 8 August 2003.

(3) Kwok Choi-wan (PW4) identified the “Rolex” watch (P7) as having been stolen from her home during a burglary on 13 September 2002.

(4) The four LCD monitors (P9) were stolen from the offices of Pak Tai Engineering Company on 5 January 2003.

(5) The three compact computer towers (P10) were stolen from the Barbican Construction Company Ltd., on 6 January 2003.

(6) Two witnesses (PW5, Tse Ka-chun and PW6, King Ka-wing) identified the applicant as the man to whom they had sold four “Rolex” watches, including P1 and P3 on 17 January 2002.

15.Apart from the aforesaid evidence, which was either admitted or not disputed, the prosecution also called PW1, PW2, PW3, PW4, PW5 and PW6 to give evidence.

16.Whilst PW1 had correctly identified P1, PW2 made a wrong identification of P3.

17.Further, despite the assertion by PW3 and PW4 that the gold pendant (P4) and the “Rolex” watch (P7) were stolen from them, they were unable to point to any identifying marks.

18.PW5 and PW6, both 22 years of age, had met at the Training Centre. At the material time, they lived together and were partners in crime.

19.They had been convicted on a series of robbery and burglary offences and were serving long sentences of imprisonment.

20.PW5 and PW6 said having committed robbery and burglary offences, they selected four “Rolex” watches, two men's and two ladies' (including P1 and P3), to sell to the applicant for $80,000. In particular, it was suggested that the applicant paid $25,000 for P1. However, P3 was wrongly identified as being one of the four watches sold to the applicant.

21.PW5 said he had known the applicant for six to seven years. He said the applicant was prepared to buy stolen goods and had once told him that he was willing to receive stolen goods and that “it was better than bringing it to the pawnshop”.

22.PW5 said he had taken watches, diamonds and jade ornaments to the applicant three to four times before. He also said although the applicant did not pay the best price, it was safe to deal with him, as he was unlikely to make any report to the police.

23.PW6 said that he was introduced to the applicant by PW5 and that he had also taken stolen items to sell to the applicant. PW6 said on the first occasion, the applicant asked for the sources of the items and he told the applicant that “he sometimes obtained things from a burglary and he would take things to him if he would receive them”.

24.The applicant had also made admissions. Shortly after his arrest on 10 January 2003 and when DPC 49190 (PW7) was making enquiry of him, he said, “Some were handed over to me by Chiu Yan (Superman) about two years ago. I bought them at a reasonable price. I'll co-operate”.

25.Chiu Yan (Superman) was PW5's nickname.

26.When the applicant was arrested and cautioned for handling stolen goods, he wrote in PW7's notebook (P16), the following:

“I understand. The goods were given to me by a man called Chiu Yan about two years ago. I bought them at a reasonable price. I did not know the items had been obtained from a burglary, but I knew that Chiu Yan normally obtained things unlawfully.”

27.The applicant also told the police that he bought the four LCD monitors and the three compact computer towers four days before, i.e. on or about 6 January 2003 and that he was willing to take the police to recover those items.

Defence's Evidence

28.The applicant did not give evidence. One defence witness said he had bought ten pendants similar to P4 as prizes in a millennium celebration of the Apliu Street Traders Association and that the applicant had won one such pendant in a raffle. There were three other defence witnesses whose evidence is no longer relevant.

29.Apart from attacking the credibility of PW5 and PW6, it was suggested in cross-examination that they only sold one “Rolex” watch, namely P1 to the applicant and the price was much more than $25,000.” However, the actual price was not mentioned and no evidence was introduced by the applicant to contradict the evidence of PW5 and PW6.

The Judge's Findings

30.The judge did not accept that PW3 and PW4 had correctly identified the gold pendant (P4) and the “Rolex” watch (P7). As she was not satisfied that those two items were indeed stolen properties, she acquitted the applicant of the 2^nd and the 3^rd charges.

31.However, the judge accepted the evidence of PW5 and PW6 that they had previous dealings with the applicant and had sold four “Rolex” watches to him. In particular, the judge accepted PW5's evidence that the applicant was prepared to buy stolen goods and found that the applicant's admissions supported PW5's assertion.

32.The judge also found that the applicant bought the four LCD monitors and the three compact computer towers one or two days after they were stolen in burglaries. The judge pointed out that the applicant did not give any explanation as to how he was in “recent possession” of them and did not say how much he paid for them.

33.The judge concluded that the applicant knew or believed that the watches, the LCD monitors and the compact computer towers were stolen properties when he purchased them. There was no dispute that those items were in fact stolen in either robberies or burglaries.

34.The judge therefore convicted the applicant of the 1^st, 4^th and 5^th charges.

Ground of Appeal

35.Mr Eric Kwok SC, on behalf of the applicant, only relies on one ground, namely gross negligence and or flagrant incompetence of Mr Hemmings and/or Mr Lo, in their conducts of the applicant's defence. The suggestion is that the applicant had not been given a fair trial.

36.Mr Kwok points out that the applicant had tried to explain to the police in five cautioned interviews conducted in the presence of counsel how he came to be in possession of the “stolen” goods. However, there was no attempt to exclude the admission contained in PW7's notebook (P16).

37.It was Mr Kwok's contention that the applicant originally only wrote the following words in P16, namely “I understand. The goods were given to me by a man Chiu Yan about two years ago. I bought (them) at a reasonable price. I did not know obtained (things) unlawfully”. (明白。貨是超人的男子大約兩年前交給我的。我用合理價錢買的，我不知道非法得來的。)

38.The other words between “know” and “obtained”, namely “the items had been obtained from a burglary. But I knew that Chiu Yan normally” (的物品係爆竊得來，但是我知道超人通常係用) were later added as a result of threat and intimidation.

39.Mr Hemmings, in his affirmation, confirmed that the applicant initially instructed him to challenge the admissibility of P16. Mr Hemmings further said the following:

“3. Immediately prior to the conference on 3^rd October, but not in the presence of the complainant (the applicant), I expressed to Mr. Lo that I did not think there was a realistic prospect of successfully challenging the admissibility of the complainant's statement. However, during the subsequent conference I did not tell the complainant that the said statement would not be challenged. I did discuss the procedure by which the said statement could be challenged in 'voire dire' proceedings.

4. During the trial, in which the 'alternative procedure' was adopted, I advised the complainant, with regard to the statement that:

(1) The statement was made at the time when the police went to the complainant's home and found therein a large number of items of jewellery that they believed to have been stolen during various burglaries. However, after investigation the police were unable to adduce evidence that any of the items found in the complainant's home were in fact stolen.

(2) Although the complainant's statement that 'I knew that Chiu Yan normally obtained things unlawfully' was potentially prejudicial it was by no means of the type that would inevitably lead to a conviction. In particular it did not specifically show knowledge that 'Chiu Yan' was a thief since there are other ways to obtain property unlawfully than by theft.

(3) In my view the statement merely showed that he would be aware of the need for caution in his dealings with 'Chiu Yan' but that it would be insufficient, without more, to prove the requisite knowledge or belief in relation to any specific transaction he had with 'Chiu Yan'. The Prosecution had to show that the complainant had 'knowledge or belief' that the goods were stolen at the material time as opposed to a general suspicion.

(4) There was no real prospect of the statement being ruled inadmissible on the basis of the complainant's objections. Put simply, my experience in relation to allegations of the type made by the complainant are that it is extremely unlikely that the Court will accept a defendant's bare assertion that a police officer has coerced him into writing an admission in response to a caution in the absence of any independent evidence to support the assertion.

(5) If he challenged the statement unsuccessfully then it would adversely affect his credibility in the event that he chose to give evidence on the general issue in due course.

(6) Should he decide to adopt, rather than challenge, the statement he would have the opportunity to explain or qualify what he had meant in the event that he chose to give evidence on the general issue in due course.

5. The decision as to whether he wished to challenge the statement in the light of my advice was left entirely to the complainant. Other than giving him the advice outlined above I did not seek to influence his decision. I was advised by Mr Lo that he had decided not to challenge the statement and I asked Mr Lo to obtain the complainant's written confirmation of his change of instructions in this regard.

6. I would like to add that I did not tell the complainant that the statement was favourable to him (as alleged in paragraph 26 of the complainant's affirmation). I did tell him that his statement was a mixed statement and that part of it was favourable to him.

7. At the close of the prosecution case I advised the complainant as follows:

(1) There was insufficient evidence for him to be convicted on 2 of the charges, notwithstanding that a submission of 'no case to answer' in relation to those charges had been rejected by the Court.

(2) In relation to the other 2 charges relating to stolen watches the Court would have to rely on the uncorroborated evidence of the 2 accomplice witnesses.

(3) I did not think that the Court would accept the evidence of the accomplices.

(4) In relation to the charge relating to the stolen computers he had volunteered the information about those to the police who would otherwise have been unaware of their existence and he had given an explanation as to how he had obtained them.

(5) In relation to the computers he would, if he gave evidence, only be able to repeat what he had told the police already.

(6) If he gave evidence he would be open to cross-examination in relation to all items found in his home and bank safety deposit box.

8. The complainant elected not to give evidence. Once again I asked Mr. Lo to have the complainant give a written confirmation of his decision.

9. I am satisfied that the complainant was properly advised at all stages of the proceedings and that he well understood the nature and consequences of the advice that he was given.”

40.Mr Lo denied having told the applicant that the evidence against him was not strong and he stood a good chance of being acquitted of all charges. He said he had advised the applicant that the 1^st charge was a problem as there were two accomplices' testimonies against him.

41.Mr Lo confirmed that there had been discussions with counsel up to the point when the applicant had to decide if he wanted to challenge the admission of P16 after the evidence of all the civilian witnesses had concluded their evidence.

42.Mr Lo said that in the course of the discussion, he had accurately translated Mr Hemmings' advice to the applicant and that the applicant understood what had been translated to him.

43.We have no doubt that Mr Lo did what he said he did. There was no reason for him not to translate counsel's advice to the applicant accurately.

44.Mr Lo confirmed that after listening to counsel's advice, the applicant decided not to challenge the cautioned statement and not to give evidence on the general issue. The applicant in fact confirmed his decision by signing on two Chinese documents written out by the applicant's friend and Mr Lo respectively.

45.Mr Kwok submits that Mr Hemmings was wrong to say that the police was unable to adduce evidence to show that any items found in the applicant's home was stolen in the light of the evidence of PW3 and PW4.

46.He suggests that the applicant's admission in P16 was not just prejudicial, but positively supported the evidence of PW5 and PW6. Yet Mr Hemmings had not properly and adequately advised the applicant.

47.It is pointed out that the applicant's allegation was supported by his complaint to the CAPO, yet Mr Hemmings asked the applicant to make an impromptu decision without exploring what explanation or qualification that the applicant might give if he decided not to challenge the admission he made.

48.Similar complaint is made of the advice on whether the applicant should give evidence on the general issue.

49.In particular, it is suggested that the explanation given to the police by the applicant on how he came by the LCD monitors and computers was so brief and could not be properly termed as explanation. It was therefore wrong for Mr Hemmings to advise the applicant that he had already given an explanation to the police.

50.In any event, the applicant should have been warned in strong term about the effect of the doctrine of “recent possession”.

51.In considering the complaint by Mr Kwok against Mr Hemmings, it is important to bear in mind the general background of the case.

52.It was not disputed that the applicant was in possession of a large number of items of watches and ornaments, expensive ones if we may add, including “Rolex” watches.

53.The theft of the “Rolex” watch (P1), the four LCD monitors (P9) and the three computers (P10) was not disputed. The only issue was whether the applicant knew or believed them to be stolen when he acquired them.

54.From the cross-examination of PW5 and PW6, the applicant admitted that at least a “Rolex” watch was purchased for “much more than $25,000” by cash from PW5 and PW6, both young people of unknown background. Of course according to PW1, he actually paid $115,000 for the watch.

55.The applicant was also found to be in possession of four LCD monitors and three computers within days after they were stolen in burglaries.

56.There was no indication of any document pertaining to the purchases made by the applicant. He did not request the sellers to produce documents of identity and he certainly kept no record of any kind. All the transactions appeared to be cash transactions.

57.After his arrest, the applicant wrote out his admission on a police notebook. At that time, the police had not recovered P1 and P3 and there was no indication that they were aware of the identity of “Chiu Yan”. In fact, it was agreed that the applicant first mentioned the name “Chiu Yan” to the police.

58.The applicant was clearly willing to assist the police with their enquiries. He voluntarily took the police to his stall in Apliu Street where the LCD monitors and computers were recovered. He also took the police to his safety deposit box in the Bank of China.

59.Mr Kwok's suggestion that the applicant was coerced to write out “the items had been obtained from a burglary. But I knew that Chiu Yan normally” (的物品係爆竊得來。但是我知道超人通常係用) is inconsistent with the applicant's original proof of evidence.

60.In his proof of evidence, the applicant confirmed that he had said and then written down in P16 the following, “The goods were given to me by a man called Chiu Yan about two years ago. I bought (them) at a reasonable price. I did not know that the items had been obtained from a burglary”. (貨是超人的男子大約兩年前交給我的。我用合理價錢買的。我不知道啲物品係爆竊得來) The applicant clearly said that he was coerced to write just one sentence, namely “But I knew that Chiu Yan normally obtained (things) unlawfully” (但我知道超人通常係用非法得來的) and not two as suggested by Mr Kwok.

61.If the applicant's proof of evidence is correct, Mr Kwok's argument that the applicant was coerced to write at the bottom margin of page 56 in P16 when there was no writing at the bottom margin of any other page has no relevance.

62.The applicant himself admitted that he did write at the bottom margin of page 56 and top margin on page 57. The applicant also admitted before us that when he wrote out the relevant sentence, there was no writing on page 57. Mr Kwok's suggestion that as the sentences in question were added subsequently and therefore had to be squeezed into the margins of P16 is not only not supported by evidence, it was contradicted by the applicant's own testimony.

63.The applicant's assertion on the circumstances in which he wrote out the admission in P16 was highly unconvincing and reinforced Mr Hemmings' opinion that there was no real prospect of P16 being ruled inadmissible.

64.The applicant did make a complaint to the CAPO. However, such complaint had very little bearing on the assertion that the police had threatened him. It was just a self-serving accusation made after the applicant had received legal advice to make such a complaint.

65.Mr Hemmings was right in saying that there was no independent evidence to support the applicant's assertion.

66.Mr Hemmings' conclusion that there was no real prospect of P16 being ruled inadmissible could not said to be an unreasonable conclusion. Indeed, having heard the applicant give evidence in these proceedings, we were reinforced in that view.

67.The direct evidence against the applicant of course came from PW5 and PW6.

68.Mr Hemmings' view that the content of P16, though no doubt prejudicial, might not be sufficient to establish the requisite knowledge and/or belief relating a particular transaction that the plaintiff had with PW5 or PW6, could not be said to be unreasonable.

69.Mr Hemmings was certainly entitled to conclude as he did that any unsuccessful challenge to the admission of P16 would adversely affect the credibility of the applicant if and when he gave evidence on the general issue.

70.Mr. Hemmings was right in suggesting that there was no evidence to prove that any items found in the applicant's home was stolen. It might seemed to be an optimistic view at the time, however Mr Hemmings was shown to be correct as PW3 and PW4 were unable to properly identify P4 and P7. The applicant was of course acquitted of the 2^nd and 3^rd charges.

71.The judge, as it turned out, accepted the evidence of PW5 and PW6 and relied partly on their evidence to convict the applicant of the 1^st charge. However, Mr Hemmings was entitled to take the view that the Court might be persuaded not to accept the evidence of PW5 and PW6.

72.Despite what the applicant had told the police after his arrest, he could have given a more detailed explanation in court with a view to persuade that judge that he was innocent. However, as with any accused who elects to give evidence, the applicant would be open to cross-examination.

73.In the light of the applicant's admitted dealings with PW5 and PW6, it was not difficult to appreciate the misgiving of allowing the applicant to be cross-examined. Mr Hemmings was certainly right in warning the applicant of such misgiving.

74.Mr Kwok specifically relies on the failure to warn the applicant of the doctrine of recent possession. Mr Hemmings could certainly have explained to the applicant the legal concept of “recent possession”.

75.However, we are not persuaded that the failure to do so constitutes incompetence, let alone a flagrant one.

76.As Mr Zervos rightly points out in his written submission, the doctrine of recent of possession is a rule of evidence which merely reflect common sense.

“The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and further may prove that he knew it at the time when he received them” (per Darling J in R v Sbarra (1919) 13 Cr App R 118)

77.The admitted evidence on the 4^th and 5^th charges established that the applicant was in possession of stolen goods. He told the police that he purchased them shortly after the burglaries in which the goods were stolen.

78.As a matter of common sense, if the applicant failed to give a convincing explanation, the court could certainly draw an adverse inference against him although the burden on establishing his guilt still rested on the prosecution.

“The doctrine is only a particular aspect of the general proposition that where suspicious circumstances appear to demand an explanation and no explanation or an entirely incredible explanation is given, the lack of explanation may warrant an inference of guilty knowledge in the defendant. This again is only part of a wider proposition that guilt may be inferred from unreasonable behaviour of a defendant when confronted with facts which seems to accuse.” (per Stocker LJ in R v Raviraj (1987) 85 Cr App R 93 at  103)

79.We are not persuaded that the advice of Mr Hemmings was in all the circumstances unreasonable.

80.The applicant, having been advised by counsel, decided not to challenge the admission of P16 and he also elected not to give evidence. He confirmed his decisions by signing on two separate Chinese documents. His suggestion before us that he was not fully aware of the nature of at least one of the documents was not convincing.

81.The applicant's decision of not giving evidence in the “alternative procedure” and on the general issue was a feasible one in all the circumstances of the case. Indeed, having heard the applciant's cross-examination by Mr Zervos, the decision not to have gone into the witness box at trial, seems eminently sensible.

82.Counsel's advice must depend on how the prosecution case is progressing. The fact that Mr Hemmings only gave certain advice in the course of the trial cannot be faulted. Counsel is of course entitled to conduct a case in a way which, in his opinion, is in the best interest of his client irrespective of the wishes of the client.

“As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.” (per Gleeson CJ in R v Birks (1990) 48 A Crim R 385 at p.392)

83.In Chong Ching Yuen v HKSAR FACC No 7 of 2003, the Court of Final Appeal also provided useful guidelines on incompetence of legal representatives at trial as a ground of appeal to upset an otherwise proper conviction.

“In dealing with the issue of error of counsel the Court of Appeal first out the applicable principles, as follows. The burden of proof lay on the appellant, and the standard of proof was on a balance of probability. Next the court said a course or a decision which in hindsight might have been wrong or unwise will not suffice to overturn a conviction. It was necessary to demonstrate a situation of serious incompetence. Finally, in error of counsel cases the ultimate issue is whether the result had been a miscarriage of justice.” (para 34)

“In turning to facts, I accept Lord Steyn's advice in Boodram [2002] 1 Cr App R 103, that an appellate tribunal must approach complains about counsel's incompetence with a healthy skepticism.” (para 50)

“It follows, almost inevitably, that ordinarily a tactical decision by counsel which, in hindsight ought to have been made differently, will not provide any ground of appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.” (para 48)

“The expression 'flagrant incompetence' rightly underlines an appellant's need to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable. But it should not deflect attention from the most critical point, namely given that there was a significant error of some kind, what will be decisive is the effect of the error on the trial.” (para 49)

84.Having considered the argument of Mr Kwok carefully, we were not persuaded that a case of incompetence against Mr Hemmings or Mr Lo, let alone a flagrant one, has been made out. On the contrary, the advice they had tendered was, it seems to us, perfectly reasonable in all the circumstances.

85.When the undisputed evidence demonstrated that the applicant had purchased with cash, expensive watches from “Chiu Yan” and items of office equipment from unidentified people, without any documentation and without recording the personal particulars of any of the sellers, a conclusion that he knew or believed those items were stolen properties was almost inescapable without a credible explanation. Having heard what the applicant had to say in these proceedings, we can well understand why Mr Hemmings decided the safest course was to put the prosecution to strict proof of its case in the hope that he could successfully exploit any weaknesses.

86.In any event, there is, in our view, no miscarriage of justice. The conviction against the applicant is neither unsafe nor unsatisfactory and there is no valid basis for upsetting such conviction.

87.Accordingly, the application for leave to appeal was dismissed.

Mr Kevin P Zervos, SC, SADPP & Mr Vincent Wong, SGC of the Department of Justice, for the Respondent.

Mr Eric T M Kwok, SC & Mr Victor C F Cheung instructed by Messrs Fung & Fung for the Applicant.