HKSAR v. Leung, Kang-hoi

HCMA1112/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1112/2005

(ON APPEAL FROM TMCC 4338 OF 2004)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  23 November 2005

Date of Judgment:  23 November 2005

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J U D G M E N T

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1.This is an appeal against conviction.  The Appellant was convicted of an offence under section 17(1) of the Dutiable Commodities Ordinance.

2.The background facts can be shortly stated.  On the evening of 20 December of last year, Customs officers arrested the wife of this Appellant.  She was the 1st Defendant at the trial and pleaded guilty.  She was delivering cigarettes upon which duty had not been paid.  Customs officers arrested her and she took them back to a flat where such cigarettes were stored.  She opened the flat with her keys and inside Customs officers found more than half a million duty-not-paid cigarettes  They were stored in two of the flat’s bedrooms, the doors to which were open.

3.It was the case of the prosecution based on the evidence of the Customs officers there that the Appellant was sitting at a desk upon which there were six or seven mobile telephones and the SIM cards in those telephones matched the numbers on fliers or handouts which had been distributed, inviting the public to purchase cheap cigarettes.

4.The Customs officers faithfully recorded his immediate reaction on arrest which was to say it was nothing to do him, he was just there to look for his wife, or words to that effect.  The only disputed fact was that the Appellant said he was not sitting at that desk, he was looking out of a window.

5.CCTV tapes were recovered which showed the entrance to the building and the lift.  The CCTV tapes did not show or capture the actual doorway that went to the flat in which the cigarettes were found.  The tapes produced covered five days.  On the first day, the Defendant - that was 16 December - he did not appear but his wife did.  On 17 December, the Defendant was there on two occasions, totalling about seven and a half hours.  On the next day, 18 December, his wife appeared as usual but he did not appear.  On 19 December, he was there for six hours.  On the 20 December, he had been there for something over two hours before the Customs officers arrived and arrested him.

6.The Defendant gave evidence, and he explained that his presence at those premises was referable to his pursuit of his wife against a background of matrimonial difficulty.  Medical evidence confirmed that he had suffered a stroke in the year 2001.  He told the court how this led to tension in the marriage, especially with a loss of the sexual side, and he suspected his wife of having an affair and that, consequently, he followed her one day to these premises, going there the first time in early December and attending at the times and places I have just described based on the CCTV tapes.

7.He said that on 17 December when he was there, his wife had complained about him disturbing her work and she was angry with him.  He explained his time there on 19 December by saying that he was there to ask her to return home but without success and that on 20 December, she having not come home on the night of the 19th, he was there with the same thing in mind again.

8.He said that he had seen another man on two occasions in the flat but had not spoken to him and that man had ignored him.  He said he was aware of the illegal activity but he had not joined it himself and, indeed, he had urged his wife to give it up.

9.Thus, where the case stood at the close of evidence was that there was ground to draw an inference that he was involved in the dealing of cigarettes, but if the explanation advanced by the Defendant was true, or may have been true, then the inference would not run and a verdict of not guilty would have followed.  The Appellant’s credibility was thus central to the case.

10.The Magistrate did not believe him, and he said that his view was that the Appellant was not an honest and reliable witness; that he had not told the court the whole truth, particularly in relation to his assertion that he had gone to the flat to persuade his wife to go home; that he did not accept his evidence.

11.The grounds of appeal settled by Mr Burkett, who appeared below and has presented this appeal with his customary care and skill, invites me to say that the Magistrate was wrong to reach that finding.

12.One of his points relates to what the Magistrate said about what he saw on the CCTV tapes.  On two occasions, the tapes revealed that the Appellant was with his wife and another woman in the lift.  On the first occasion, they were all chatting with each other in the lift, the three of them.  On the second occasion, the CCTV camera had captured them at the moment of their arrival at the entrance to the building and they were all three together there then.

13.The Magistrate made the point that the Appellant had not mentioned this in his evidence and that his evidence had been fairly detailed, and he said therefore this evidence was not consistent with what the Appellant had said.  The evidence was that the flat that contained the cigarettes were not the only premises on that floor.  Mr Burkett makes the point this might just have been a coincidental meeting twice and journey up to that floor with a neighbour.

14.What happened below was that the CCTV tapes were put in evidence and their primary purpose was to fix the times of when people came and went.  But to make life easier, the times had been noted down and placed into written admissions so that the tapes did not have to be played during the course of the evidence.

15.The transcript I have reveals that the Magistrate made plain that when he retired he was going to play the tapes.  This leads Mr Burkett to complain that, in effect, the Appellant had no opportunity to deal with the point.  It would have doubtless been a happier situation if the tape had been played before the evidence was closed.

16.Mr Burkett’s complaint really relies on this, that if that had occurred, the Magistrate would, in effect, have been bound to have raised the point when the Appellant gave evidence, or that the Appellant could have been recalled to deal with it.

17.I would have some sympathy for the point made if the material here were fundamental to the prosecution or, indeed, the defence case.  It cannot be described as such.  The point is one of fairly limited significance going to the issue of credibility.  There is no obligation on a Magistrate to run by a defendant in his court all those matters that he is going to rely upon in order to found his conviction, especially those matters that go to credibility.  If that happened, there would be no end to the proceedings.

18.Whilst it was unfortunate that the events turned out in the sequence that they did, in my judgment, the point was never of sufficient weight that it would have been something the Magistrate was obliged to bring to the attention of the Appellant when he gave evidence or that obliged him to have the Appellant recalled.

19.Mr Burkett says that the point was good enough to go in the Statement of Findings.  Of course, that is right, but that of itself does not promote it to the status of one of those sort of fundamental points which justice would demand be aired in the course of the evidence.

20.Of course, today, this is an appeal by way of rehearing.  The matter is at large.  It is my decision on the material before me today that matters.  But, obviously, in assessing the material before me today, I received considerable help by seeing what the Magistrate said about the case in his Statement of Findings.

21.I will assume I am wrong for the moment about how I have dealt with Mr Burkett’s point and I will assume that the Defendant has been unfairly wrong-footed.  That would result in asking myself whether the impact of that was sufficient to damage the assessment the Magistrate made of the Appellant such that I should not rely on his assessment of his evidence as a whole. 

22.My judgment is that the impact would not be sufficient for that to follow.  It cannot be denied that it was something that went into the scales because it is in the Statement of Findings.  But my judgment is its weight in those scales was not sufficient to upset the Magistrate’s assessment on the whole of the evidence.

23.Of course, it is very often said that the Magistrate is in a much better position to judge these matters than a Judge on appeal because he sees and hears the witnesses, and that explains the reluctance of Appellate Courts to upset a Magistrate on findings of fact, especially where the issue is credibility.

24.The other reason Appellate Courts are to slow to interfere is that it is very difficult, indeed sometimes impossible to explain on paper why it is you believe someone or disbelieve them, especially in cases that have no particular bull points to them and that depend on impression and nuance.  This is such a case. 

25.The sheer difficulty of trying to put the impression of a man you see speaking in court into words on paper is one that is fraught with difficulty, even for someone who may be gifted with great literary skill.  The point is that the impressions received by the tribunal of fact are extensive and very extensive, and they cannot be completely reflected in a few pages of writing.

26.The Magistrate here tried to focus on what he found to be unreasonable or illogical in the evidence of the Appellant.  The perfected grounds of appeal set out some of those instances and criticise them.  I will not go through them all.  Let me take the one at paragraph 3 subparagraph 1 as an example.  The Magistrate said this:

“D1 had refused to go home despite the Appellant persistently asking her to do so.  It was obvious that D1 was not on good terms with the Appellant.  As such, it would be unreasonable that she would have allowed the Appellant to go into the flat which was stacked with a huge amount of cigarettes.”

The criticism is set out there that the Magistrate has failed to acknowledge that a wife may not act reasonably despite not being on good terms when her husband is confronting her with a suspected affair.  If the Magistrate were to produce a document that catered for that sort of criticism, it would have gone beyond what could reasonably be expected of a Statement of Findings.

27.I hope it is no disrespect to the other grounds if I say this of them:  taking them altogether, what they reveal is that the Magistrate was able to point to various matters which he, in effect, found did not have the ring of truth.  In my judgment, he was quite entitled to do that, and the parts of the evidence he so identifies are rightly identified.

28.As for me, I can find some more that he has not mentioned.  What I have to do today is look at the whole of the material that is before me and ask myself whether this conviction was one that was proved for sure on the evidence.

29.It is right I should mention the points that Mr Burkett made both here and below.  He points to the fact that the Appellant was not there the whole time; there is some time he was not there the whole of the day; some days he was not there at all; that no key to the premises was found on him and no means of access to the premises established against him; that the medical reports supported his condition and that is some support for him having trouble in his marriage and acting in the way he said he did.  He said saying things like the man ignored him the flat had the ring of truth about them, and he relied on what the Appellant said as soon as he was arrested to the effect that he was only there to look for his wife.

30.Having looked at the whole of the evidence here, I am satisfied so that I am sure that the Magistrate was right to reject the evidence of the Appellant.  If one takes out the point about chatting to the females in the lift, there is sufficient material to come to the conclusion that the Magistrate did.

31.One of the things that struck me forcefully, which damaged the case for the Appellant, was the amount of time he spent at these premises whilst his wife was running in and out delivering cigarettes, combined with the fact that the criminal enterprises obviously operated by advertisement to a telephone number and there were six or seven mobile telephones on the desk at which the Customs men said the Appellant was sitting.

32.By saying that even if you take out of the scales the point about meeting the lady in the lift, I do not mean to indicate that it was not a point that fell to be considered.  The use that can be made of it illustrates what I was referring to earlier about the difficulty of putting into words all those things that have an impression upon one.  Of course, there could be many explanations as to how it comes about that the Appellant was speaking to the lady in the way seen on the tape, but it is one of those smallish pieces of evidence that combine with the rest that feeds an impression.  His case was he had only been there four times.  So it is a pretty big coincidence that on two of those four occasions he is with someone who may well have gone into the flat with the cigarettes or may have gone to somewhere on the same corridor but, certainly was, on one of the occasions, engaged in chat in the lift and on another occasion arrived at the very same moment.  It is that sort of small coincidence that builds a picture.

33.By talking about it again, I would not want to give the point too much weight, and I would have come to the same conclusion either with or without that point being in the evidence.

34.Accordingly, I shall confirm the order made by the Magistrate.

Mr Francis Burkett, instructed by Messrs Lo, Wong & Tsui, for the Appellant

Mr Raymond Cheng, Government Counsel, of the Department of Justice, for the Respondent