HKSAR v. Sze Sun Man

CACC000507/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.507
(Criminal)

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Coram: Hon. Power, V.-P., Mayo and Leong, JJ.A.

Date of Hearing: 23 April 1998

Date of Delivery of Judgment: 11 June 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced two counts of handling stolen goods. The first alleged that on 16th November 1995, he dishonestly received stolen goods, namely (a) 15 bags of 'ABS Poly 757' plastic materials, worth $4,200 Hong Kong currency; (b) 100 bags of 'MB Black 2801' plastic materials, worth $60,626.50 Hong Kong currency; and (c) 520 bags of 'ABS & HIPS' plastic materials, worth $96,341. It was alleged that these were, respectively, the property of (a) Welly Chemical Company Limited ("Welly"); (b) IEFI (HK) Limited ("IEFI"); and (c) Sinostate Company Limited ("Sinostate"), and were received he knowing or believing the same to be stolen goods. It is not necessary to set out the details of the second charge as the judge found that there was no prima facie case with regard thereto.

2. In the course of the hearing before Deputy Judge Lung, the prosecution tendered seven cautioned statements. After a voir dire the judge found they were not voluntary and refused to admit them. It was then that he held that there was no prima facie case on the second charge.

3. In a statement of facts, it was admitted that all of goods were stolen by Sound Tech Electronic (HK) Co. ("Sound Tech"), and that the goods belonging to Welly was stolen on 27th September, 6th October and 10th November 1995; the goods belonging to IEFI was stolen on 9th October and 6th November 1995, and the goods belonging to Sinostate on 4th October and 16th October 1995. As can be seen from the dates, all of the goods were stolen within seven weeks of the date on or about which it was charged that the applicant had received them. It is to be noted that two lots of goods had been stolen within ten days of that date. The police had on 16th November found the goods on the premises of the Ocean Company.

4. It was an admitted fact that certain invoices which had come into the hands of the police "showed some goods were sent to the defendant's Ocean Company at Chai Wan, Hong Kong. The Ocean Company was searched and Sze Sun-man (the defendant) was arrested therein on 16.11.95." It was also admitted that the "Ocean Company has been dealing with plastic materials in Hong Kong for 10 odd years" and that "Inside the Ocean Company, an invoice book, a receipt book and a pile of invoices of Sound Tech were seized. 5 fingerprints and 1 palm mark of the defendant were found on the said invoice book and receipt book."

5. The applicant did not give evidence but in a cautioned statement (Exh.P8), which was admitted without objection, he said that he had been given the invoice and receipt books by a Mr. Cheng Fu-ming of Sound Tech "for use".

6. In his Reasons for Verdict, the judge said:

"From the submission of defence counsel, it is apparent that defence did not dispute that the defendant was in possession of the stolen goods on 16.11.1995 when the police arrived at his company. What the defence disputed is the knowledge of the defendant that those were the stolen goods.

In fact, there is ample evidence to prove that the defendant was in possession of the stolen goods at the material time. It is admitted that on 16.11.1995, the police found the stolen goods on the premises of Ocean Company which is the defendant's company. In reliance upon the authority of The Queen v. Lai Chi-shing [1987] HKLR 422, the defendant's elder brother's evidence in the voir dire proceedings were considered. According to his brother, he and the defendant were jointly running Ocean Company and the defendant was handling the buying and selling of the plastic materials. Looking at the evidence, it is clear that the defendant had received the stolen goods and kept them in his company, Ocean Company. The next question is, as defence argued, whether the prosecution had produced to Court evidence to prove beyond reasonable doubt that the defendant did that knowing or believing that they were stolen goods.

It cannot be argued that there is no direct evidence from the prosecution to prove the knowledge of the defendant that those were the stolen goods. The court has to draw conclusions from the accepted evidence as Lord Morris said in his judgment in McGreevy v. D.P.P. (H.L.(N.I.)) [1973] 2 W.L.R. 276 at page 285 'In very many criminal cases it becomes necessary to draw conclusions from some accepted evidence. The mental element in a crime can rarely be proved by direct evidence.'.

The accepted evidence are these: that those found on the defendant's company by the police on 16.11.1995 were stolen goods which had been identified by the victim companies. Those goods were stolen by Sound Tech between 27.9.1995 and 10.11.1995. The defendant had elected not to give evidence to explain the situation.

Mr. Allen submitted that it was not a recent possession situation where the defendant had possession of the stolen goods, say the next day after they were stolen. In the case of Lai Chi-shing cited above, Cons, V-P said in his judgment on page 426:

'It has been faintly suggested that even so ten days is not a time which can properly be called 'recent' as far as the doctrine of recent possession is concerned. Nowhere of course is it laid down upon the individual circumstances of each individual case. One of the matters for particular consideration is the nature of the goods which are concerned. '

By looking at the stolen goods as shown in the photographs in Exh.P12, it is apparent that those were very heavy and bulky goods of raw materials. The earliest date of the goods stolen is 27.9.1995 which is about one month and 3 weeks from 16.11.1995 and the latest is 10.11.1995 which is only 6 days from 16.11.1995. In the circumstances, I find that the defendant's possession was recent.

However, it was submitted that the defendant's company was a family company which had been dealing in plastic materials for over 11 years. This is a very important factor which this court should consider before coming to a conclusion. Could it be said that those stolen goods were bought by the defendant for his company in the ordinary course of business? Is this a rational or reasonable inference to be drawn under the circumstances? Having considered the evidence and the circumstances, I find that this is not a rational or reasonable inference to be drawn. If the defendant had bought the stolen goods in the ordinary course of business from Sound Tech, those invoices and receipts should have been issued by Sound Tech to Ocean Company. How could it be that the defendant company had the invoice book and the receipt book in its office? The defendant had, in fact, admitted in his caution statement admitted by consent, Exh.P8 that those invoice book and receipt book were given to him by Mr. Cheng Fu-ming of Sound Tech and that he had used them. That he explained was the reason why his fingerprints were found on them.

Defence counsel said that fingerprints on the invoices and receipts of Sound Tech found on the defendant company were not proof of the defendant's knowledge. That alone may be so. However, looking at the circumstances on the accepted facts and coupled with the fact there is no explanation from the defendant to explain these circumstances, l find that there is only one irresistible and reasonable inference to be drawn; that is, the defendant at the material time knew or believed that those goods found in his company were stolen goods.

Accordingly, I find that the prosecution has proved beyond reasonable doubt that the defendant on 16.11.1995 dishonestly received those stolen goods as particularized in the 1st Charge, knowing or believing the same to be stolen goods. I find the defendant guilty of the 1st Charge."

7. The Perfected Grounds of Appeal contain 8 grounds.

8. Mr. Allan, who appeared for the defendant below and who appears before us, has, in oral argument, concentrated upon grounds 1 and 2. These read as follows:

"Ground 1

The learned Deputy Judge wrongly considered the Appellant's elder brother's evidence (a defence witness in the voir dire proceedings) on the general issue after having ruled inadmissible all seven of the cautioned statements challenged in the voir dire.

Ground 2

The learned Deputy Judge was wrong in law to rely on the case of The Queen v. Lai Chi Shing [1987] HKLR 422, when clearly it is respectfully submitted this case referred to evidence given by prosecution witnesses and not evidence given by a defence witness in voir dire proceedings."

9. The headnote in Lai Chi Shing's case reads:

"1. The trial judge was entitled to rely on evidence given by witnesses other than the applicant, although such evidence was given on the voir dire and although the statement was not admitted; and it made no difference whether such evidence was given in what might be termed parallel proceedings - 'the alternate procedure' - or in proceedings which were, in one sense distinct and separate.

2. Whilst the applicant, if not given protection against repetition on the general issue, would be deprived improperly of his right to silence, other witnesses had no such right."

10. Mr. Allan submits that this applies only to witnesses called for the prosecution. He referred to the following passage at p.425 from the judgment of Cons V.-P. :

"The evidence as to the admissibility of the statement is taken, as it were, in parallel with the evidence upon the general issue. At some suitable stage, usually the close of the prosecution evidence, the defendant is given a chance to give his evidence and to call his witnesses in relation to the proffered statements alone. The ruling of the court upon the admissibility of those statements will be made at least before the defendant is required to answer, if necessary, upon the general issue.

In its judgment the Full Court expressly decided that although in the event the statements were not admitted the judge nevertheless would be entitled to rely upon the evidence given by the prosecution witnesses. Is the position then any different where the alternate procedure is not followed, but the single judge does enter upon a voir dire?

In principle we can see no distinction. It seems to us to make no difference whether the evidence is given in what might be termed 'parallel proceedings' or in proceedings which are in one sense distinct and separate. The reason why there can be no repetition of the defendant's evidence is that he is, in effect, forced to give evidence on the question of admissibility. If he were not given protection against repetition on the general issue he would be improperly deprived of his right to silence. But other witnesses have no right to silence. They do not need to be protected from the repetition of their evidence, nor can we see any reason why the defendant should be so protected. It would in our view be absurdly technical to exclude evidence which the judge has already heard, in some cases only a short while before. Even if voir dire proceedings are proceedings separate from the general issue, they are proceedings in the same litigation, between the same parties and before the same judge or magistrate."

11. Mr. Allan submits that the court was dealing here only with evidence from prosecution witnesses and that it would be quite wrong to suggest that when a defendant calls witnesses in a voir dire he is also calling them on the general issue. He submits that such evidence is part of the voir dire only, and that it cannot be imported into the general issue when the defendant expressly states that he is calling no evidence on that issue.

12. Mr. Lo, for the prosecution, submits that the principle stated in Lai Chi-sing's case has general application, and that all of the evidence called in a voir dire, except that of the defendant himself, is admissible on the general issue. We cannot agree. We are satisfied that, when a defendant calls evidence in voir dire proceedings and later indicates that he is not calling evidence on the general issue, the voir dire evidence cannot be used either for or against him on the general issue. Although it does not determine the matter, we cannot help but note that in a jury trial, clearly no use could be made of such evidence as a jury would have no knowledge of any of the evidence given in the voir dire. We are satisfied that Mr. Allan is right in his contention that the judge should not have used the evidence of the defendant's brother given in the voir dire when determining guilt on the general issue.

13. It is necessary now to look at that evidence to see how significant it was. It came in the following passage:

"Q. Mr. Sze, could you speak up a bit, please, so that your brother could hear you give your evidence, and the judge as well. Now, you run a business with your brother, is that correct?

A. Yes.

Q. Dealing in plastic materials.

A. Yes.

Q. When did you come to Hong Kong from China?

A. Around 1982.

Q. And since then you've been working with your brother, is that correct?

A. Yes."

14. This evidence, we are satisfied, did not take the matter materially beyond what was stated in the admitted facts which referred to "the defendant's Ocean Company at Chai Wan" and the fact that that company had "been dealing with plastic materials in Hong Kong for ten odd years". The matter was, however, complicated further by the fact that the judge to an extent misstated the brother's evidence saying:

"According to his brother, he and the defendant were jointly running Ocean Company and the defendant was handling the buying and selling of the plastic materials."

As can be seen from the above, the defendant's brother never said that "the defendant was handling the buying and selling of the plastic materials". This, however, was not, in our view, a misstatement of fact of any real materiality as the admitted facts set out that the company was the defendant's company and that it was dealing with plastic materials and, further, that the defendant was arrested on the premises of the company on 16th November 1995. We do not consider that the use of the evidence of the brother or the misstatement of it occasioned any injustice to the applicant. There was ample evidence to establish that the defendant was an active participant in the company which dealt with plastic materials and, indeed, as Mr. Allan has fairly conceded, that the defence had never sought to suggest otherwise. There was a material irregularity insofar as the judge made use of evidence that was not properly before him but it was not such as occasioned any miscarriage of justice.

15. Ground 3 suggested that the trial judge, if he used the evidence of the elder brother, should have placed weight upon it insofar as it was generally exculpatory of his brother. As we have already indicated, on the general issue no use should have been made of that evidence at all.

16. Under Ground 4, Mr. Allan argues that the judge

"wrongly found that the doctrine of recent possession applied to all the plastic goods when in fact the first batch of goods i.e. those from Welly Chemical Company Limited were stolen over seven weeks before they were found at Ocean Company. The learned Deputy Judge was wrong to globalise all the plastic goods were subject to the doctrine of recent possession."

17. The trial judge was entitled to look at all of the circumstances. It was an admitted fact that Sound Tech had stolen the goods - some of them only days before they were found on the premises of Ocean. Cons J. observed in Lai Chi-shing's case at 426:

"It had been faintly suggested that even so ten days is not a time which can properly be called 'recent', as far as the doctrine of recent possession is concerned. Nowhere of course is it laid down what is recent in terms of days or any other period of time. It is something that must depend upon the individual circumstances of each individual case."

18. We adopt this observation. In the circumstances of this matter we, using Mr. Allan's term, are satisfied that the judge was entitled "to globalize all the plastic goods" and to apply to them the doctrine of recent possession.

19. In Ground 5 Mr. Allan argued that the judge

"having made reference to the undisputed fact that Ocean Company was a family business of the appellant which had been dealing in plastic materials for over eleven years, placed little or no weight to this fact when considering the whole of the evidence."

20. We find some difficulty knowing what exactly is meant by this ground. It is of course true that you would expect to find plastic materials in a firm dealing in such materials. The judge was alive to this. The significant matter here was that the plastic materials found in the company were stolen. The judge asked:

"Could it be said that those stolen goods were bought by the defendant for his company in the ordinary course of business?"

His answer was that it could not. Given that there was no evidence to establish any "ordinary course of business" which had brought the goods to the premises, we are satisfied that he was perfectly entitled to answer the question which he had posed for himself in the way in which he did.

21. In Ground 6, it is argued that the judge

"in convicting the Appellant wrongly placed too much weight on the fact that there were invoice and receipt books of Sound Tech and many invoices and receipts issued by Sound Tech to Ocean Company when the existence of these books, invoices and receipts could be proof that there were legitimate transactions; particularly when the Appellant had already explained the same in his uncontested cautioned statement."

We remark firstly that the applicant gave nothing like a satisfactory explanation for his possession of the books of Sound Tech in his cautioned statement. In it he simply said that they had been given to him by Mr. Cheng Fu-ming of Sound Tech. There was no explanation to show why they were given to him or for what purpose. Nothing was said which might have demonstrated that he had those books in his possession for some innocent purpose. Mr. Allan seems to be suggesting that the finding of the books of Sound Tech, which had admittedly stolen the goods, on the premises of Ocean was not a matter upon which the judge was entitled, along with all of the other circumstances, to rely when drawing the inference he did. We have no hesitation in rejecting that submission. The finding of those books was cogent circumstantial evidence upon which the judge was entitled to rely.

22. In Ground 7, it is suggested that the judge wrongly placed the burden of proof on the applicant when he stated, 'However, looking at the circumstances of the accepted facts and this coupled with the fact there is no explanation from the defendant to explain these circumstances...." It is argued that the applicant was legitimately exercising his right not to testify on the general issue and when there was already an explanation in his own contested record of interview. We have no hesitation in rejecting the suggestion that the judge placed any burden of proof on the applicant. In the remarks set out above the judge was doing no more than observing that circumstances had been proved which cried out for an explanation and that none had been forthcoming. There is nothing in this ground.

23. No other matter of any materiality has been argued.

24. As we have indicated, the judge did err in law by placing reliance upon inadmissible evidence. We are satisfied however, that there was no miscarriage of justice and we have no hesitation in applying the proviso.

25. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the appeal is dismissed.

Representation:

Mr. Francise Lo S.G.C. (D.P.P.) for the Respondent.

Mr. William Allan (Paul Kwong & Co.) for the Applicant (re: Conviction).