HKSAR v. Leung Kim Chung

CACC 48/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 2002

(ON APPEAL FROM DCCC 940 OF 2001)

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Coram: Hon Stuart-Moore VP, Yeung JA and Jackson J

Date of Hearing: 15 November 2002

Date of Judgment: 15 November 2002

Date of Reasons for Judgment: 21 November 2002

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.On 25 January 2002, following a trial in the District Court before Judge Sweeney, the Applicant was convicted of handling stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap. 210. He was sentenced to two years' imprisonment.

2.The Applicant sought leave to appeal against conviction on a charge which was particularised against him in the following way, namely that he:

".... on a day unknown between the 27th day of August, 2000 and the 8th day of September, 2000, in Hong Kong, dishonestly received certain stolen goods, namely, a private car registration No. JB3063, knowing or believing the same to be stolen goods." (Appeal bundle p. 1)

At the conclusion of the hearing we dismissed the application. We now give our reasons for doing so.

Prosecution's case

3.The case presented against the Applicant was very straightforward.

4.The Applicant was the proprietor of a garage at 18, Cheung Ning Street in To Kwa Wan. He was also the sole tenant of those premises.

5.At 4.15 p.m. on 8 September 2000, police officers went to his garage where they found him working on a silver coloured Honda Civic immediately outside the garage assisted by an employee called 'Kwok'. The Applicant was observed bending over the boot of the car apparently carrying out repairs while 'Kwok' was working on an area of the car near the driver's seat.

6.This car bore index plates with the number HV9007. The tax disc matched this number. However, this registration number was false. The car was identifiable in a number of ways as a Honda Civic, JB3063, which had been stolen from its owner, a Mr Yeung (PW1), on the night of 26/27 August 2000.

7.The new number attached to PW1's car belonged in reality to a crashed Honda Civic which had been written-off following a road accident on 1 January 2000. Furthermore, the written-off Honda Civic had an engine number, B16A5-1200188, and a chassis number, JHMEK4650WS001394, both of which police later discovered had been stamped into PW1's car. The written-off car had previously been sold for scrap but on 30 August 2000, someone had purported to re-register it in the name of a 'Lam Ying-wah' whose address was given as Ground Floor, No. 23 Cheung Ning Street. This address related to a restaurant which was across the street from the Applicant's garage. No one using the name 'Lam Ying-wah' had been employed at the restaurant and the proprietor there knew no one of that name.

8.The Applicant was questioned by a police officer (PW2) about the car on which he was working. Amongst other things, the Applicant stated that his garage had been open for about one and a half years where the monthly rent was $13,000. He said that the man working with him, named 'Kwok' was his employee, or foki, and that he had one other employee, called 'Ah Kin', who was on leave at that time. He claimed that 'Ah Kin' had telephoned him that morning to say that the car had been driven to the garage by a customer at about 5.00 p.m. on the previous night for repairs to the air-conditioner and the braking system. This customer was due, according to the Applicant, to return to the garage to pick up the car at about 8.00 p.m. The Applicant was unable to provide any details of the customer during the course of the enquiries made by PW2.

9.A search at the garage was then conducted under the authority of a search warrant. Towards the back of the premises, a car engine bearing the number B16A5-1200188 was found on the floor. The stolen Honda Civic was then inspected and it was found that its engine bore exactly the same engine number. The Applicant was immediately arrested by PW2 for handling stolen goods and he was cautioned. The prosecution alleged that the Applicant at this stage exercised his right to silence.

10.The Applicant's employee, 'Kwok', was also arrested but he was later released without being charged.

11.A second police officer (PW3) who had been present at the arrest, produced a number of items connected with PW1's Honda Civic. These included a vehicle licence disc displaying the number HV9007 on the windscreen of the car, a Visa card receipt signed by the car's true owner which was found in the magazine holder behind the front passenger seat, and a plastic box containing six compact discs which were in the boot of the car. PW3 also found a construction site safety helmet and a plastic Castrol oil container inside a bamboo basket immediately outside the garage. PW1 identified all of these items, except the vehicle licence disc, as property which he had previously kept inside his car, JB3063. He was also able to identify the car itself by means of a number of individual peculiarities.

12.A Government Chemist (PW4) later inspected PW1's Honda Civic and concluded that the stamping of the chassis number, 'JHMEK4650WS001394', was different in alignment and appearance from a genuine Honda chassis number. Restoration by chemical etching revealed that the original chassis number was "JHMEK4650XS200917" which matched the true registered chassis number of PW1's car, JB3063. He similarly found that the number to be seen on the engine inside PW1's car, which matched the number on the engine found on the floor of the garage, was different in alignment and appearance from a genuine Honda engine number. There were signs of tampering and grinding but, in the event, he was unable to establish the original engine number on PW1's car.

Defence

13.The Applicant elected to give evidence at trial. He confirmed that at the time of the police raid he had two employees, namely 'Kwok' and another person called Lam Cho-kin ('Ah Kin'). This was the first time the prosecution had been made aware of 'Ah Kin's' full name. The Applicant's defence, in short, was that all blame for the car lay with 'Ah Kin'.

14.The Applicant claimed that on the day before his arrest he had worked at the garage from 11.00 a.m. to 4.00 p.m. and that he had not returned until nearly 5.00 p.m. on 8 September 2000. He stated that he had not seen the Honda Civic before the day of his arrest.

15.The Applicant stated that between 9.00 a.m. and 10.00 a.m. on 8 September 2000, 'Ah Kin' telephoned him to say that he had received a car the night before from a customer who wanted some repairs done to the vehicle and that he had not yet completed the work. The repair work was said to have involved replacing all four brake pads and a rear brake light bulb for an agreed fee of $2,500. 'Ah Kin' asked the Applicant to finish this work for him as he was taking the day off and the customer was returning to collect the Honda Civic at 8.00 p.m. that night.

16.The Applicant said that he purchased a set of Honda brake pads during the afternoon and went to the garage arriving there at about 5.00 p.m. He went upstairs and changed his clothing and in the process he failed to notice the spare Honda Civic engine on the floor of the garage. He then began work on the Honda Civic outside the garage starting with the rear brake light. He was being assisted by 'Kwok' who was pressing the brake pedal to illuminate the rear brake light when suddenly the police arrived.

17.The Applicant claimed that when the police asked him whether the engine on the floor of the garage belonged to him, he said it did not. He also claimed that he told the police officer that he did not know whether or not the engine belonged to his employee 'Ah Kin' and that he had offered to telephone 'Ah Kin' but was not allowed to do so. Shortly after this, one of the police officers told the Applicant that the Honda Civic outside the garage bore the same engine number as the spare Honda engine inside his garage. Again, the Applicant claimed that he knew nothing about this item and offered to call 'Ah Kin' but was refused permission. Eventually, he was arrested, cautioned and taken to the police station for further enquiries. The Applicant further claimed that after his release on police bail, he went to look for 'Ah Kin' but could neither trace him by means of his mobile telephone number nor at his address.

18.The defence sought to lend support to the Applicant's case that 'Ah Kin' was entirely to blame by way of a Notice of Admitted Facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221 (exhibit P10) which read as follows:

"1. The defendant is in possession of a photocopy of the ID card of Lam Cho-kin (HKID XXXXXXX(X)) produced as (exhibit) D1 on which is written the home address and telephone number of Lam Cho-kin.

2. On 26 June 2001, Lam Cho-kin died. At the time of his death he was in possession of a motor car in which were stolen vehicle parts.

3. Lam Cho-kin had one previous conviction. On 6 February 1996, he was conditionally discharged for 6 months for an offence of tampering with a motor vehicle."

Grounds of appeal and argument

19.Against this background, two grounds of appeal were advanced by Mr Duncan Percy, on behalf of the Applicant, to suggest that the Applicant's conviction was unsafe or unsatisfactory.

(1) Judge's analysis of the evidence

20.It was submitted, firstly that the judge had:

".... failed in his Reasons for Verdict to analyse the evidence surrounding the issue of when and by whom the 'receiving' of the stolen motor vehicle was carried out. Further, that the evidence disclosed that the stolen motor vehicle was 'received' by an employee of the defendant's garage, one Lam Cho-kin, without the defendant's knowledge or approval. There was no evidence to suggest the defendant had arranged for the stolen vehicle to be left outside his garage, nor that he had exercised exclusive possession or control over the vehicle upon his return."

21.This complaint is without even the remotest foundation.

22.In the course of summarising the prosecution's case, the judge said:

".... we have conclusive evidence that the silver Honda Civic which the defendant not only had possession of at his garage but also had control over whilst he was working on it, was in fact a recently stolen car. The onus of proving knowledge or belief that it was stolen rests upon the prosecution at all times. I may infer guilty knowledge if a) the defendant has offered no explanation to account for his possession of the property or b) if I am satisfied beyond reasonable doubt that any explanation consistent with innocence which has been given by the defendant is untrue.

In assessing the prosecution case, I also bear in mind that the evidence does not stop at possession or control of recently stolen goods but extends to the following two factors:

(i) That the born-again Honda was registered to a fictitious name and address that happened to be across the street from the defendant's garage, and more importantly;

(ii) A second or spare Honda Civic engine was found inside the defendant's garage which not only had a false engine number but bore the exact same number as on the born-again Honda thereby linking the stolen car outside to the interior of the defendant's premises." (Appeal bundle p. 13)

23.Later in his Reasons for Verdict, the judge found that all of this evidence pointed towards the Applicant being engaged and working on a car that he knew to be stolen.

24.The judge gave detailed attention to the defence case and his assessment of the Applicant's evidence was that it was "inherently incredible". This left no sensible basis for the suggestion that the dead man, Lam Cho-kin, had taken receipt of the Honda Civic without, as Mr Percy claimed, the Applicant's prior "knowledge or approval".

25.We do not need to go over each and every point raised for or against the Applicant. The judge painstakingly went through this exercise himself leaving no justification for the complaint now raised by Mr Percy in this first ground of appeal that there was evidence that Lam Cho-kin had received the stolen car at the Applicant's garage. The Applicant's evidence had, understandably in the circumstances, been rejected in its entirety.

(2) Disclosure of material information

26.The second ground amounted to a contention that a failure by the prosecution to disclose "relevant material .... to the defence until after the prosecution's closing address and prior to the defence address" amounted to a material irregularity. This was a grave allegation for Mr Percy to have made. Mr Percy further submitted that the police were not prepared to disclose any 'sensitive' documents to the defence concerning the death of Lam Cho-kin and admissions were made in lieu of disclosure.

27.Mr Percy defended at trial in the court below. He has maintained this ground even though Mr Francis Burkett, who prosecuted, has provided a full written response to the implied criticism of himself concerning the alleged material non-disclosure until a later stage in the trial.

28.We can say immediately that we have had no hesitation in accepting Mr Burkett's written account of the matter and in rejecting Mr Percy's reckless and wholly unjustified allegation, albeit in these proceedings he rather lamely tried to make out that he had not intended to cast any personal criticism on prosecuting counsel.

29.Taking Mr Percy's argument first, he pointed to the Applicant's evidence about a conversation he had allegedly engaged in with Lam Cho-kin concerning the arrival of the Honda Civic and what work had to be done on it. As the prosecution had challenged this conversation, Mr Percy said that he wanted to "enhance the Applicant's credibility" by putting forward "some credible explanation for 'Ah Kin's' suspicious and sudden disappearance". It was, he submitted, important that if the prosecution knew of any relevant information about 'Ah Kin', it should be "disclosed to the defence at the earliest possible time to enable the defence to pursue any line of enquiry prior to trial".

30.However, the prosecution were not made aware until the defence produced a photocopy of Lam Cho-kin's identity card as to exactly who he was. This apparently occurred after the Applicant had finished giving evidence on 24 January 2002. Immediately after his evidence, Mr Burkett made his final speech and the court then adjourned until 2.30 p.m.

31.Just before Mr Percy was due to make his speech, Mr Burkett addressed the court in the following way:

"Mr Burkett: Your Honour, I'm on my feet - plainly somewhat unexpectedly - but it's right that I should mention a matter to your Honour .....

At the conclusion of this morning's hearing, I mentioned a matter to my learned friend. That matter first arose, first came into the mind of the prosecution yesterday as a result of what was being put in cross-examination by the defence. And I apologise straightaway for appearing to be somewhat unspecific as to the nature of the matter, but I'm sure your Honour will appreciate my reasons for that at this stage.

It having arisen, I caused the officer in the case to begin to make enquiries. Those enquiries have not yet been completed. So at present the prosecution are unable to say what it believes may be the case - is certainly the case; it's purely belief at the moment as to that matter. However, as I've indicated, I told my learned friend what it was and he, for reasons which I can well understand, is anxious to know whether or not the prosecution are in a position to confirm that matter.

If we were able to do so, then there would be as it were a joint application by us each, by one supported by the other, that your Honour give leave, despite both the prosecution and the defence having closed their cases, for that matter to come into evidence by way of a further section 65C admission ....." (Appeal bundle p. 61)

32.According to Mr Percy, after the Applicant had finished giving evidence, a photocopy of 'Ah Kin's' identity card was retrieved from the Applicant's garage and handed "in a corridor" at court to the prosecution.

33.Later in the afternoon, Mr Burkett informed the court that he had been able to confirm matters which he anticipated might be of relevance to the defence case, but he needed an adjournment to enable him to draft the precise admissions from information which was not yet to hand. In due course, the admissions earlier referred to, under section 65C of the Criminal Procedure Ordinance, Cap. 221, were drafted and signed.

34.Mr Burkett's written reply on 25 October 2002 to the complaint in the second ground of appeal that there was a lack of timely disclosure to the defence of relevant material, states, amongst other things, as follows:

"6. I kept Mr Percy informed of what was being done [see Transcript p. 61 J-K]. The prosecution began to make inquiries for any 'relevant information' as soon as it was in a position to do so. Any implication in the Grounds of Appeal or the Written Argument that pre-existing information was withheld from the defence is wrong. Furthermore, on a counsel to counsel basis, Mr Percy was told that the police now suspected that the 'Lam Cho-kin' (Ah Kin) of the identity card produced by the defence was a man who had died in a shooting incident in June 2001 involving the police. Mr Percy was told that once police inquiries confirmed this suspicion he would be informed. On its being established that it was indeed 'Lam Cho-kin' (Ah Kin) who had died Mr Percy was informed. Naturally he wished to know if there was any relevant material additional to the fact of the death now known to the prosecution as a result of those inquiries. On a counsel to counsel basis it was agreed that any such relevant material would be in connection with stolen cars. I had already indicated to Mr Percy that any material which was forthcoming and which would have fallen into the 'Unused Material Disclosure' category if it had been known beforehand would be disclosed.

7. Once the inquiries were completed Mr Percy was informed of the result. There was counsel to counsel discussion as to how best to resolve the situation, the prosecution and the defence having closed their cases. Both counsel expressed concern that it be resolved in such a way that did not give rise to a ground of appeal. The s. 65C admissions were the result of that discussion.

8. The only material which had emerged from the inquiries relevant to the issues in the trial and the defence was that which was put into the s. 65C admissions.

9. My recollection is that the OIC informed me that the file in respect of the shooting incident would not be made available to him. I informed Mr Percy that I had no detailed information as to the circumstances of the shooting apart from it having occurred when police stopped a vehicle driven by 'Lam Cho-kin' (Ah Kin). It was agreed that there could be nothing in relation to the circumstances of the shooting which could be relevant to the issue in the trial except the fact that 'Lam Cho-kin' (Ah Kin) was in possession of stolen motor parts. This was dealt with by No. 3 of the admissions."

35.This response, which Mr Percy said he accepted in its entirety, might well have added that if Mr Percy was so concerned to have 'Ah Kin's' identity established, his solicitors could have made enquiries from the police on the information they had in their possession in advance of the trial. Furthermore, it is quite plain that if it had truly been Mr Percy's view at the time of trial that he should be given full disclosure of all "sensitive" documents concerning the alleged shooting of 'Ah Kin' by a police officer, an application to that effect could and should have been made to the trial judge. No doubt if it had been, a ruling would have been sought by the prosecution that the public interest did not require such disclosure. This aside, on any view the circumstances concerning the shooting of 'Ah Kin' were hardly relevant to any issue in the proceedings with which we are now concerned.

36.With these considerations in mind, at various stages during Mr Percy's submissions he stated that it was not his "duty" to make disclosure of 'Ah Kin's' full name. No one had, of course, suggested that it was his duty, but we were concerned to find out why he had not chosen to reveal Ah Kin's name to the prosecution when a main plank in Mr Percy's present application was that the defence had badly wanted to establish 'Ah Kin's' identity to show, if possible, that he was a dishonest rogue. As to why he had not chosen, as counsel advising and ultimately conducting the defence on behalf of the Applicant, to reveal the available information to the prosecution, he began to infer that the fault lay with his instructing solicitors although he denied that he had intended his words to give rise to such an innuendo.

37.We were left to conclude that the non-disclosure by the defence, in circumstances which Mr Percy was suggesting could only help the defence, was part of a perfectly permissible, but nonetheless deliberate, defence tactic. It took the form of a trap which was being set for the prosecution in the hope that they would fall into it. The tactic was transparently clear from the papers. It was to conceal 'Ah Kin's' full identity until the last possible moment in the trial, including as it turned out his address and identity card number, in the hope that the prosecution would suggest that 'Ah Kin' was effectively a figment of the Applicant's imagination who could be used as a convenient scapegoat for the crime.

38.The trap set, the defence would then have heard Mr Burkett's comments in his final speech on this aspect of the case, just before the midday adjournment which were as follows:

"And the best (the defendant) can do now by way of explanation is to conveniently point the finger at a person who was not present at the time the police arrived and who apparently has disappeared and - well, more to the point, had disappeared, untraceable, immediately. No doubt (the defendant) would say, 'Well, there you are, that's the act of a guilty man and that's why I point the finger in that direction.'"(Appeal bundle p. 45)

39.Shortly after this, a photocopy of Lam Cho-kin's identity card surfaced for the first time and was passed to the prosecution, according to Mr Percy, in a corridor at court.

40.The tactic in the lower court may have been permissible, but the criticism we most certainly make at this stage of proceedings of this gamesmanship is that it ill behoves Mr Percy, whether or not he was personally aware that his solicitors or the Applicant could produce a copy of 'Ah Kin's' identity card, having failed with the tactical machinations being practised in the District Court, to make any criticism whatever of non-disclosure, or even late disclosure, by the prosecution. There was nothing of the sort.

41.Mr Percy eventually had to accept, when we pressed him, that he was content with the information with which he had been supplied by the prosecution. He said that it was "more than enough for (his) purposes because it revealed 'Ah Kin' in his true colours".

42.It is clear to us that far from a material irregularity having occurred at trial, positive steps, to Mr Percy's certain knowledge, were taken to prevent such an occurrence. Mr Burkett had acted in the highest traditions of the Bar. His conduct was beyond reproach.

43.This ground of appeal has been a waste of the court's time and was utterly devoid of merit. It was a ground which was not only misleading in content but also misrepresented the position taken by the prosecutor who is a highly experienced and respected member of the Bar. This ground should never have been advanced.

44.Accordingly, the application was dismissed.

Representation:

Mr P.S. Chapman, SADPP, of the Department of Justice, for the Respondent.

Mr Duncan Percy, instructed by Messrs Yuen & Partners, for the Applicant.