HKSAR v. Man Kwok Wan

CACC000048/1999

CACC 48/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 1999

(ON APPEAL FROM DCCC NOS. 138 AND 491 OF 1998)

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Coram: Nazareth V.-P., Stuart-Moore V.-P. and Keith J.A. in Court

Date of Hearing: 26 August 1999

Date of Delivery of Judgment: 21 October 1999

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J U D G M E N T

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Keith J.A. (giving the judgment of the Court):

Introduction

1. On 18th December 1998, the Applicant was convicted by Judge McMahon in the District Court on a single charge of handling stolen goods. On 15th January 1999, he was sentenced to 5 years' imprisonment. He originally applied for leave to appeal against both his conviction and sentence. However, he subsequently withdrew his application for leave to appeal against his sentence. That application was accordingly dismissed, and what remains is his application for leave to appeal against his conviction.

The nature of the charge

2. The Applicant was the sole proprietor of a business, Hing Fung Car Trading Co. ("Hing Fung"), which imported cars and spare parts from Japan into Hong Kong. The prosecution's case was that 19 cars had been stolen in Japan. They were loaded into containers which were shipped to Hong Kong. They were collected from a container terminal in Kwai Chung, and stored for a while at a depot in Yuen Long. The prosecution did not contend that the Applicant had arranged for the cars to be stolen. What was contended was that, knowing or believing that they had been stolen, he had assisted in loading them into containers in Japan, in their shipment to Hong Kong, in their release to Hing Fung, in their collection from the container terminal and in their temporary storage awaiting their final disposal. The charge of dishonest handling which he faced was therefore the second limb of handling stolen goods set out in section 24(1) of the Theft Ordinance (Cap. 210). In other words, he was not charged with having dishonestly received the 19 cars. He was charged with having dishonestly undertaken or assisted in their retention, removal, disposal or realisation by or for the benefit of another person. The particular allegation was that he had assisted in their removal.

The prosecution's case against the Applicant

3. An important feature of the evidence was that the Applicant had not been in Hong Kong while the importation of the cars into Hong Kong was taking place. It was an admitted fact that he had left Hong Kong for Japan about four weeks before the first of the 19 cars was stolen. And it was an admitted fact that he only returned to Hong Kong, this time from the mainland, over 13 months later, which was very many months after the 19 cars had been seized from the depot at which they were being stored.

4. The prosecution's case against the Applicant was that he had assisted in the removal of the cars in two ways:

(i) While in Japan, the Applicant had personally helped to load some of the cars into the containers in which they were to be shipped to Hong Kong.

(ii) Although the Applicant had been in Japan at all material times, he had been a party to a joint enterprise with other persons in Hong Kong to have the cars shipped to Hong Kong, released to Hing Fung, collected from the container terminal and placed in storage until they were to be finally disposed of.

The judge accepted the prosecution's case. In doing so, he found as a fact that the Applicant had known or believed that

(a) the cars which the Applicant had helped to load into the containers in Japan, and

(b) the cars which were to be shipped to Hong Kong, released to Hing Fung, collected from the container terminal and placed in temporary storage,

had been stolen.

The cars covered by the charge

5. The 19 cars to which the charge related were the 19 cars seized at the depot in Yuen Long. It was not disputed that they had all been stolen in Japan and shipped to Hong Kong. What was disputed was whether they were among the cars which the Applicant had helped to load into the containers in Japan. The judge accepted that that was something which the prosecution had to prove. The judge inferred that the cars seized in Hong Kong were among the cars which the Applicant had helped to load into containers in Japan.

6. It was contended by Mr. Philip Ross for the Applicant that it was not open to the judge to draw that inference. If that contention is correct, it undermines the finding made by the judge that the Applicant knew or believed that the 19 cars to which the charge related had been stolen. That is because one of the grounds on which the judge found that the Applicant knew or believed that those cars had been stolen was based on what the Applicant was alleged to have said while he had been helping to load cars into the containers in Japan. The evidence of one of the Applicant's employees, PW1, was that on one of the occasions on which PW1 had helped the Applicant to load the cars into the containers in Japan, he had noticed that the ignition lock on one of the cars was broken, and that the ignition key was missing. He had mentioned that to the Applicant. The Applicant had told him that "it" was stolen, though PW1 could not recall whether the Applicant had been referring to the car with the damaged ignition lock or another car. A little later, when they had been discussing the $10,000.00 which PW1 was being paid for each container which he helped to load, the Applicant had said that the cars were stolen.

7. The argument that it was not open to the judge to infer that the 19 cars seized in Hong Kong were among the cars which the Applicant had helped to load into the containers in Japan was based on the evidence of PW1 that a number of cars had been purchased in Japan by himself and other employees or associates of the Applicant. Mr. Ross contended that the possibility that the 19 cars seized in Hong Kong were among those cars was not considered by the judge. The judge did not expressly deal with that possibility in his Reasons for Verdict, but his conclusion that the 19 cars seized in Hong Kong were among those which the Applicant had helped to load into the containers in Japan meant that he must have rejected that possibility. In our view, it was open to him to reject that possibility on two grounds.

8. First, PW1's evidence had been that it was in the early hours of the morning of 15th January 1997 that he had first helped the Applicant to load cars into containers in Japan. He did so until about 20th or 21st January. "About" 6 containers and "near 20" vehicles were involved. However, PW1's evidence had also been (admittedly as a result of a question from counsel for the Applicant's co-defendant which assumed that certain evidence as to dates had previously been given by PW1 when it had not been) that the vehicles which had been purchased had been shipped to Hong Kong in 4 containers "prior to January". The judge expressly referred to that part of PW1's evidence in his Reasons for Verdict. Although the judge did not expressly state that he accepted PW1's evidence on this issue, he accepted that PW1 was "an essentially honest and reliable witness", and he did not say that on this part of his evidence PW1 was mistaken. If PW1's evidence on this issue was correct, the 19 cars seized in Hong Kong could not have been among the cars purchased in Japan.

9. Secondly, and in any event, it was an admitted fact that the 19 cars seized in Hong Kong had been stolen. On the face of it, if they had been stolen, they could not have been among the cars which had been purchased by PW1 and other employees or associates of the Applicant - unless they had been innocently purchased from the persons who had stolen them or who had been entrusted with their disposal. The judge would have been entitled to reject that possibility as far too fanciful.

10. Although the judge did not expressly deal in his Reasons for Verdict with the possibility that the 19 cars seized in Hong Kong were among the cars purchased by PW1 and other employees or associates of the Applicant, the judge did explain why he concluded that the 19 cars seized in Hong Kong must have included the cars which the Applicant had helped to load in Japan. Three of the reasons he gave were as follows:

(i) There were significant similarities between (a) PW1's description of the cars which he had helped to load into the containers in Japan and (b) the cars which were seized in Hong Kong. Thus, PW1 said that the cars which he had helped to load had included Mercedes Benz, Toyotas and BMWs. Both Mercedes Benz and Toyotas were among the 19 cars which were seized in Hong Kong. It is true that no BMWs were among the 19 cars seized in Hong Kong, and that among them were three Hondas (which PW1 had not mentioned helping to load), but we think that the judge was entitled to conclude that there was at least some similarity between the cars which PW1 had helped to load and the cars seized in Hong Kong. That is reinforced by the judge's finding that a number of the cars seized in Hong Kong had either damaged door locks or missing ignition locks. That tied in with PW1's evidence about the damaged ignition lock which he had seen, even though PW1 had only given evidence about having seen one damaged ignition lock.

(ii) There were significant similarities between (a) PW1's description of the way in which the cars which he had helped to load into containers in Japan had been packed and (b) the way in which the 19 cars seized in Hong Kong had been packed. The judge referred to the evidence of PW1, when he was shown a photograph of one of the containers which had been seized, that the packing of the container "had been done by him in Japan in that way".

(iii) The 19 cars seized in Hong Kong had been shipped to Hong Kong in six containers in shipments which arrived in Hong Kong between 25th January and 1st February 1997. These dates and numbers tied in, in a stark and dramatic way, with that part of PW1's evidence to which we have already referred, namely that he had helped the Applicant to load the containers with "near 20" vehicles in "about" six containers, completing that work by 20th or 21st January. It is true that PW1's evidence was that the first two containers had contained three vehicles each, whereas the two containers which contained those of the 19 cars which had been stolen first had contained four vehicles each. We do not think that that minor discrepancy prevented the judge from relying heavily on the dates and numbers to draw the inference which he did.

11. Some of the other reasons which the judge gave for concluding that the 19 cars seized in Hong Kong must have included the cars which the Applicant had helped to load in Japan are less convincing. For example, the judge referred to

(a) the Applicant's involvement in the loading of the cars into the containers in Japan,

(b) the fact that Hing Fung was named in the shipping documents as the consignee of the containers,

(c) the fact that one of the Applicant's associates had been involved with the loading of the cars into containers in Japan and with the processing of the shipping documents to enable the containers to be released to Hing Fung, and

(d) the fact that the Applicant had said to PW1 that the cars which they were loading had been stolen.

When analysed, none of these factors help on the issue whether the 19 cars seized in Hong Kong were among the cars which the Applicant had helped to load into the containers in Japan. However, looking at the evidence as a whole, we are satisfied that the inference which the judge drew was the only reasonable inference open to him to draw on the primary findings of fact which he had made and on the unchallenged evidence which was before him.

The commission of the offence in Hong Kong

12. No point was taken at the Applicant's trial as to whether the Applicant's absence from Hong Kong at all material times prevented the Applicant from being treated as having committed the offence of handling stolen goods in Hong Kong. However, the judge addressed the issue himself. He gave two reasons for deciding that there was no jurisdictional bar to the Applicant's conviction in Hong Kong:

(i) The acts of one of the Applicant's associates, Yip Cheung Wan, in Hong Kong in assisting with the processing of the release of the cars in Hong Kong to Hing Fung should be regarded as the acts of the Applicant in Hong Kong, because Yip was in effect the Applicant's "agent" in Hong Kong, acting in accordance with the scheme which the Applicant had put in place.

(ii) The Applicant must have been aware that the consequences of his acts in Japan would result in the commission in Hong Kong of the offence of handling stolen goods. In the light of the decision of the Privy Council in Somchai Liangsiriprasert v. Government of the U.S.A. [1991] 1 AC 225, the judge regarded the law of Hong Kong as permitting criminal liability for a substantive (and not merely an inchoate) offence, even when the defendant's acts all occurred outside Hong Kong, provided that those acts resulted in the commission of an offence in Hong Kong.

The judge thus relied on the common law to conclude that there was no jurisdictional bar to the Applicant's conviction in Hong Kong.

13. However, the Criminal Jurisdiction Ordinance (Cap. 461) ("the Ordinance") provides for the jurisdiction of the courts in Hong Kong to try persons for certain offences of fraud and dishonesty which have a connection with both Hong Kong and another place. It came into effect on 6th March 1996, about 10 months before the offence with which the Applicant was charged was committed. We assume that the judge was unaware of the existence of the Ordinance: otherwise, he would have referred to it. The Ordinance applies to the offence of handling stolen goods: see sections 2(1)(a) and 2(2)(a).

14. It is here that a question arises as to whether the effect of the Ordinance is to abrogate (in relation to the offences to which the Ordinance relates) the principles of the common law for determining criminal liability for acts done outside Hong Kong. Mr. Ross contended that it does, and that the Ordinance now represents (in relation to the offences to which the Ordinance relates) a comprehensive regime for determining criminal liability for acts done outside Hong Kong. Mr. Edmond Lee for the Government argued otherwise. He contended that the Ordinance simply provides another basis for determining criminal liability for acts done outside Hong Kong.

15. The question is not an easy one. The Ordinance itself does not expressly provide the answer. One factor favouring Mr. Ross' contention is that the Ordinance was based on similar provisions in the English Criminal Justice Act 1993, which implemented recommendations made by the English Law Commission. The Law Commission had recommended that "the present rules governing territorial jurisdiction [for substantive offences] should be abolished" (our emphasis): see para. 6.1 of the Report of the Law Commission,"Jurisdiction Over Offences of Fraud and Dishonesty With a Foreign Element" (Law Com. No. 180). Against that, one factor favouring Mr. Lee's contention is that when the Attorney General moved the Second Reading of what was then the Criminal Jurisdiction Bill, he said:

"The purpose of this Bill is to extend the ability of courts in Hong Kong to try persons for certain offences of fraud and dishonesty that have a connection with Hong Kong and another place" (our emphasis): see Hong Kong Legislative Council, Reports of Debates, 23rd February 1994.

16. We have concluded that we do not need to resolve this issue for the purposes of disposing of this application. That is because we take the view that, under both the common law and the Ordinance, there was no jurisdictional bar to the Applicant's conviction in Hong Kong. That is the consequence of the judge's finding that the acts of Yip in Hong Kong in assisting with the processing of the release of the cars in Hong Kong to Hing Fung were to be regarded as the acts of the Applicant in Hong Kong. That was, of course, sufficient to establish liability under the common law, but it was also sufficient to establish liability under the Ordinance, because

(a) section 3(3) provides that the Applicant could have been convicted if any of the "relevant events" occurred in Hong Kong, and

(b) a relevant event is defined in section 3(1) as meaning "any act or omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence."

The Applicant's assistance in the removal of the cars was one of the acts which the prosecution had to prove. That assistance in Hong Kong was established by the judge's finding that Yip's acts in Hong Kong were to be regarded as the acts of the Applicant in Hong Kong, since Yip had been acting in accordance with a scheme which the Applicant had put in place.

17. In the light of this analysis, Mr. Ross was constrained to rely on the following argument, which we take from his skeleton argument:

"The admissible evidence as to what Yip did to assist in obtaining the 6 containers seized is, it is submitted, consistent with carrying out work performed by his then employer, Hing Fung. It is submitted that the evidence falls short of Yip being an agent of the .... Applicant as opposed to being an employee of the Applicant's company. If that be the case, there is insufficient evidence that in Hong Kong the Applicant assisted the removal of the 6 containers."

This argument must fail. Hing Fung was not an incorporated company. It was simply the name of the business of which the Applicant was the sole proprietor. There is no distinction to be drawn between Hing Fung and the Applicant.

"Otherwise than in the course of the stealing"

18. Section 24(1) of the Theft Ordinance provides that if a person is to be convicted of handling stolen goods, his handling of the stolen goods must have occurred "otherwise than in the course of the stealing". The judge did not refer to this requirement in his Reasons for Verdict. Although he addressed a related issue in his Reasons for Verdict - namely, whether the Applicant assisted in the removal of the cars "by or for the benefit of another person" - he did not make any express finding on the issue whether the Applicant had handled the cars otherwise than in the course of the stealing.

19. Mr. Ross argued that this was an issue which the judge had had to address. Even if counsel for the Applicant had not taken the point at trial, the issue had been raised by the evidence. After all, the Applicant's involvement in the loading into the containers of cars which had so recently been stolen strongly suggested that the Applicant had stolen the cars himself - if not personally, by giving instructions for them to be stolen. Without addressing this issue, the judge, so it was said, had failed to consider a key ingredient of the charge which the prosecution had had to prove.

20. It does not necessarily follow from the absence in the Reasons for Verdict of any express reference to the requirement that the Applicant had handled the cars otherwise than in the course of the stealing that the judge failed to address the issue. The requirement is well-known and has generated much case law. We think it unlikely that an experienced judge such as Judge McMahon would not have considered the issue. But in our view that does not matter. That is because, whether or not the judge considered the issue, he would have been bound to conclude, on the findings of primary fact which he had made, that the Applicant had handled the cars otherwise than in the course of stealing them, even if the Applicant had, at an earlier stage, been a party to their theft. The findings which we have in mind are the judge's findings that

(a) Yip assisted with the processing of the release of the cars in Hong Kong to Hing Fung, and

(b) in doing so, Yip was acting in accordance with the scheme which the Applicant had put in place.

In other words, Yip's acts were treated as the acts of the Applicant, and those acts were done otherwise than in the course of the stealing of the cars.

21. The fact that the Applicant may have been a party to the theft of the cars at an earlier stage does not mean that a later handling by him of the cars was in the course of the stealing. That follows from what was said by Scarman L.J. (as he then was) in R. v. Dolan (1976) 62 Cr. App. R. 36 at p.39:

"If the defendant's handling of the goods occurs in the course of the stealing, he cannot be found guilty of handling by receiving; see Theft Act 1968, section 22(1) [which is the English equivalent of section 24(1) of the Theft Ordinance and is in identical terms]. But, if he handles them later, i.e. after the stealing, he commits an offence under the subsection. It is, therefore, perfectly possible for a man to be guilty of stealing and receiving the same goods."

"By or for the benefit of another person"

22. Section 24(1) of the Theft Ordinance provides that if a person is to be convicted under the second limb of handling stolen goods, e.g. assisting in the removal of stolen goods, that removal has to have been "by or for the benefit of another person". The judge found that this requirement had been satisfied. There was initially no appeal from that finding, but I was concerned about the judge's observation in his Reasons for Verdict that there was "no evidence [that] the handling of the [cars] was for the benefit of any person other perhaps than the [Applicant] himself". When I expressed my concern about the impact of that observation on the finding of the judge that the removal of the cars had been "by or for the benefit of another person", Mr. Ross took the point that that finding was inconsistent with what the judge had himself said about the benefit of the Applicant.

23. On a more careful reading of the Reasons for Verdict, it is plain that what the judge actually found was that the Applicant had assisted in the removal of the cars "by" Yip and others. It makes no difference that Yip was himself acting in accordance with a scheme which the Applicant had put in place and that Yip's acts were treated for other purposes as those of the Applicant. The judge's finding, therefore, did not relate to whose benefit the removal had been for, but by whom the removal had been effected. Mr. Ross' initial view - that there was no basis to challenge the judge's finding that the removal of the cars had been "by or for the benefit of another person" - was correct.

Conclusion

24. For these reasons, this application for leave to appeal against his conviction must be dismissed. We regret the time which has elapsed since the hearing of the application. One of our number left Hong Kong on leave shortly after the hearing, and by the time he returned, Mr. Ross had himself gone on leave, having left a request that our judgment on the application should not be delivered in his absence. We have complied with that request.

Representation:

Mr. Philip Ross, instructed by the Director of Legal Aid, for the Applicant.

Mr. Edmond Lee, of the Department of Justice, for the Respondent.