The Queen v. Lau Ching-wing

CACC000046/1995

IN THE COURT OF APPEAL

No. 46 of 1995
(Criminal)

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Coram: Hon. Yang, C.J., Power, V.-P., and Wong, J.

Date of Hearing: 16 January 1996

Date of Judgment: 16 January 1996

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J U D G M E N T

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Wong, J. (giving the judgment of the Court):

1. The Applicant, D1, and To Chun-wai, D2, were jointly charged with one charge of theft. The particulars are:

LAU Ching-wing and TO Chun-wai, on the 27th day of July, 1993, at the Yamato Transportation Company, at Unit 2, Ground Floor, Yuen Fat Industrial Building, No. 25, Wang Chiu Road, Kowloon Bay, Kowloon, in Hong Kong, together with persons unknown, stole 242 pieces of transceivers valued at $526,800 Hong Kong currency, the property of Soundtech Telecom Co.; 100 pieces of transceivers valued at $278,932 Hong Kong currency, the property of Welthy Co.; 720 pieces of micro cassette tape decks valued at $18,720 Hong Kong currency, the property of Zeny HK Ltd.; 3,400 pieces of transceivers valued at $5,337,161 Hong Kong currency, the property of Dynapapk Co.; 9,279 pieces of watches valued at $1,337,737 Hong Kong currency, the property of Citizen Watch HK Ltd.; 7 pieces of leather belts, 16 pieces of ties, 100 pieces of clothes and 1 suit case to the total value of $27,000 Hong Kong currency, the property of Mr. Kenjiro Lchimata.

2. Both were tried and convicted before Deputy Judge Line in the District Court and the Applicant now seeks leave to appeal against his conviction. His application for leave to appeal against a sentence of five years imprisonment was abandoned.

3. Shortly before midnight on 26th July 1993, three men entered the premises of Yamato and using keys to open a secure property store, they stole goods worth over $7 million as specified in the charge. D2 was at the time employed by the company while the Applicant was a former employee. They had known each other when they were working there together and maintained constant contact after the Applicant had left his employment.

4. On the night of 26th July, D2 was on night shift duty alone at the premises and acting on previous arrangements, the Applicant sent the three men to the premises to take away the goods in a lorry, leaving D2 tied up to give the impression that it was a robbery. D2 later untied himself and reported the matter to the police as a robbery.

5. The Applicant was arrested in the early hours of 9th November 1993 during a stop and search operation. He was interviewed by DPC 503 Lok Ming-fai at about noon on the same day and the next morning. He made two statements under caution.

6. The admissibility of the cautioned statements was challenged on the grounds of assault, threats and breaches of the Judges' Rules. It is accepted that the only evidence against the Applicant is these cautioned statements without which there is absolutely nothing to prove his guilt.

7. The grounds of appeal all relate to the cautioned statements. Mr. Harris, who appears for the Applicant before us, makes a number of complaints:

(1) The cautioned statements were involuntary and the judge should have excluded them;

(2) The judge's finding was against the weight of evidence;

(3) The cautioned statements should have been excluded on account of the breach of the Rules and Directions for the questioning of suspects and the taking of statements promulgated by the Secretary for Security in October 1992.

More specifically, it was contended that there were breaches of Rule III (b) where it says that only in exceptional cases questions can be put to an accused person after he has been charged or informed that he may be prosecuted and Direction 8 (iii) which confers on an accused person the right to communicate privately with his lawyer.

8. It is not necessary for us to deal with the complaints separately. The judge had dealt with all these matters, and in our view, adequately and correctly. He accepted the evidence of the officer who took the statements and was entitled to the conclusions he reached on the evidence before him. Whether breaches of the Rules and Directions would result in the exercise of the judge's discretion to exclude depends on a number of factors such as the merit and the facts of each individual case and the degree of seriousness of the breach. The judge found that the admissions were voluntary and concluded that the breaches were not of a serious nature to warrant exclusion. There is no cause for us to interfere.

9. The conviction is neither unsafe nor unsatisfactory and causes us no concern. The application for leave to appeal against conviction is dismissed.

Representation:

Mr. John Reading, S.A.C.P. for the Crown.

Mr. Graham Harris, instructed by Messrs. Paul Kwong & Co., for the Applicant.