HKSAR v. So Kwan Lun

HCMA 952/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 952 OF 2005

(ON APPEAL FROM TWCC 1706/2005)

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BETWEEN

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Before: Deputy High Court Judge Wright in Court

Date of Hearing: 20 December 2005

Date of Judgment: 20 December 2005

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J U D G M E N T

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1.The Appellant was the Second Accused in the magistracy.  He was convicted, as was his co-accused, after trial, of a single charge of going equipped for stealing contrary to section 27 (1) of the Theft Ordinance, Cap. 210.

2.This was, in truth, a straightforward matter.  It has to be said that the way the matter was both prosecuted and defended by the person appearing on behalf of the Appellant, was inept.  Rambling, confused and unfocused questions were asked throughout the trial.   In addition, a more sensible charge would have been one of attempted theft, albeit that the charge preferred is technically correct.  These factors undoubtedly added to the Magistrate’s task.

The facts

3.Shortly after 2:30 a.m. on 10 June 2005 patrolling police officers saw the two Accused.   There was a row of parked motorcycles at the roadside.  The Appellant was standing between a tree and one of the parked motorcycles, which bore registration KJ 4861, whilst the co-accused was squatting between another two of those motorcycles, bearing registrations LY 1968 and LV 7253.  Motorcycle LY 1968 was parked adjacent to KJ 4861.  Immediately next to where each of these persons was standing, was, according to the sketch, a bicycle. 

4.The driver of the police van, who testified as PW2, stopped the vehicle.  The four officers in it alighted.  They walked to the Appellant and his co-accused.  One of the police officers, who testified as PW1, dealt with the co-accused whilst PW2 dealt with the Appellant.  PW1 observed, on the ground, approximately one foot away from where the co-accused was squatting, a wrench.

5.PW2 related how he had approached the Appellant who was standing some three metres away from but looking in the direction of his co-accused.  PW2 had asked him what he was doing there to which he received a reply “No”.  He repeated the question and this time was told “A friend of mine and I cycled past year”.  He then asked why the bicycles were parked there to which the appellant responded  “We were just thinking whether or not we were courageous enough to tamper with the motor bikes”. 

6.PW2 then received information from PW1:  it is worth observing that the magistrate insisted that it not be related in the course of PW2’s evidence although, of course, it would have been perfectly proper for PW2 to have revealed what was said to him - not for the purpose of proving the truth of the content of what was said but for the purpose of demonstrating why he acted thereafter in the manner he did.  However, the fact that the Magistrate did not allow that evidence to be introduced illustrates the care with which he approached this matter.

7.As a result of that information PW2 then arrested and cautioned the Appellant for the offence.  In reply the Appellant said, according to PW2’s oral evidence which the Magistrate accepted

“Out of momentary greediness, I asked Ah San whether or not he was courageous enough to steal things from the motorbikes.  Unexpectedly, he indeed went over to use a spanner to tamper with the vehicles.  However, before it was done, we saw you already.”

8.It was an admitted fact that, if it were found that the Appellant had said those words, he had done so freely and voluntarily.  It was thus unnecessary for the Magistrate to hold a voire dire.  It emerged that PW2 had recorded the response of the Appellant in his notebook but that, later, the Appellant declined to sign the entry.  When PW2 was asked questions on behalf of the Appellant he was asked if he knew why he had not signed the entry:  he replied that the Appellant had said that he would decide whether to sign it in the presence of his lawyer.  He denied that this was because the entry was incorrect.

9.The Appellant elected not to give evidence.  The co-accused did so.  His evidence was to the effect that he had been carrying the wrench, openly attached to the front wheel nut of his bicycle, in case it were necessary for him to effect repairs:  that as he had been riding along in the vicinity of the parked motorcycles a wheel nut had just happened to fly off:  at the time the police arrived, he had just completed the process of repairing his bicycle;  the repairs had taken place in front of motorcycles LY 1968 and LV 7253 and not between them.

10.The Magistrate, having seen and heard the witnesses, rejected his version where it conflicted with that of the prosecution witnesses.  The Magistrate accepted the evidence of PW1 and PW2.  He accepted the positions of the two males and their bicycles as described. 

11.Specifically, he found that the Appellant had said, under caution, the words related by PW2.   He was entirely justified in doing so.  There was nothing to contradict the evidence regarding that admission:  the co-accused was unable to testify to it in his evidence whilst the Appellant elected not to testify.  It is apparent that he placed full weight on the answer:  there was no reason for him not to have done so.

The grounds of appeal

12.Five grounds of appeal are advanced on behalf of the Appellant.

(1)     The trial Magistrate erred in law or in directing himself, alternatively in failing sufficiently or at all to direct himself on the prosecution evidence and on the defence case, thereby rendering the conviction of the appellant of the charge of going equipped for stealing under section 27 (1) of the Theft Ordinance, Cap. 210, unsafe and unsatisfactory.

13.This related to a complaint that the Magistrate found only “one material discrepancy” in the evidence of PW1 and his apparent acceptance of an explanation for it by PW1.  In fact, it cross-references to Ground 3 as well despite the fact that the skeleton argument in respect of this ground deals with a discrete point.  I shall deal with that first.

14.PW1 was asked to make two marks on a small Polaroid photograph, Exh.P1 to show certain positions:  he was later asked to make a mark on a sketch.  The evidence which the Magistrate accepted is that the co-accused and his bicycle were both between the two motorcycles, LY 1968 and LV 7253, which, as can be discerned from the photograph, Exh. P1, is a very narrow space.  The fact is that whether PW1 erroneously thought he was being asked to mark the position of the co-accused or that of his bicycle the space is so narrow, the photograph so small and the sketch so rough that any indication he gave would suffice for either man or bicycle:  thus any misapprehension on his part as to just what it was he was being asked to depict was of no real relevance and, as the Magistrate rightly found, most certainly did nothing to affect his credibility.

15.There is nothing in this ground.

(2)     The trial Magistrate erred in law and/or there was a material irregularity in the course of the trial in that he wrongly interposed upon the Appellant's counsel in the cross-examination of PW1, thus preventing the Appellant from developing a legitimate line of defence and/or properly putting his case to PW1.

16.In this ground the Appellant contends that the Magistrate refused to allow his counsel to put to PW1 the suggestion that the co-accused had not said to him, PW1, that he, the co-accused, had been told to do something by the Appellant.

17.The Magistrate went to considerable pains to ensure that he did not take into account, when considering the case against the Appellant, that which had been said by the co-accused to PW1 at the scene.  He was correct, of course, in doing so.  When he pointed this out during the trial, the Appellant’s counsel plainly failed to appreciate the point being made by the Magistrate. 

18.Moreover, although the Appellant’s counsel obviously had difficulty in formulating a comprehensible question to put the suggestion she had in mind, the Magistrate suggested a format for her to use even though, on the facts, it would inevitably have attracted a reply which would not have advanced the Appellant’s case one iota.  For whatever reason she did not ask that, or a similar question, despite the Magistrate specifically indicating to her that it was proper for her to do so.

19.Not only is this ground entirely devoid of merit, it is one which simply should not have been advanced.  The criticism of the Magistrate is entirely misconceived.

(3)     The conviction recorded against the Appellant is unsafe and unsatisfactory by reason of the trial Magistrate’s failure to follow the evidence correctly, thereby wrongly and improperly finding fault with the Appellant and convicting him of charge.

20.Essentially two points are made in this ground:  firstly, there were material contradictions which the Magistrate failed to resolve, this being the cross-reference to Ground 1; and secondly, there was a material difference between the words spoken under caution by the Appellant as recorded in PW2’s notebook and his evidence in court.

21.In regard to the issue of material contradictions, the Appellant refers to differences in the precise wording between what the co-accused is alleged to have told PW1 that the Appellant said to him and what the Appellant said to PW2.   The former is, of course, not admissible against the Appellant.  Such differences as exist are mere semantics and not of substance.

22.On the second point, it is correct that the Magistrate did not specifically address the difference between the post-record and the oral evidence of PW2.  His evidence in court was that the Appellant had said, in part, to him “…whether or not [the co-accused] was courageous enough to steal things from the motorbikes”.  The post record was not produced in evidence:  there was simply an acceptance by PW2, after a considerable number of false starts by the Appellant’s counsel to put a question, of the terms of the entire entry in his notebook reading, in part, “I asked [the co-accused] whether he dare to prise the things on the  motorcycle.”  However he had earlier rejected this particular sentence when it was put to him in isolation. 

23.It is a change in phraseology which does not, in my judgment, amount to a material discrepancy.  I do not regard it as necessary, in the overall context of the evidence, for the Magistrate to have specifically dealt with this.  Moreover, the Magistrate was plainly aware of the required test as I identify in respect of the fourth ground.

24.This ground is without substance.

(4)     This offence of going equipped for stealing under s. 27(1) of the Theft Ordinance, Cap. 210, is committed only if a person is found in possession of any article for use either in the course of or in connection with a burglary, theft or cheat.  The burglary, theft or cheat does not have to be intended to be committed by the person in possession of the subject device for such purpose, for it can be committed by another person, but that other person ought to have prior knowledge of such subject device… In the instant case, the Appellant firstly simply lacked this prior knowledge of the subject device to be convicted of the offence. Secondly, the trial Magistrate wrongly treated the act of tampering with the motorcycles as an act of stealing and convicted the Appellant.  Further or alternatively, there was insufficient evidence to establish that the Appellant had prior knowledge of [the co-accused] being in possession of the pair of steel pliers, and that their joint intention was to make use of it to steal from the motorcycles at the scene.

25.The Magistrate found, specifically, that the Appellant and his co-accused were involved in a joint venture.  On the facts as he found proved, he was entitled to come to that conclusion. 

26.He specifically addressed the Appellant’s answer to PW2, finding that, in part, it was untruthful.  He inferred, from the positions of the two males at the time the police observed them, from the response of  the Appellant to PW2 and from the evidence as a whole, that the Appellant had prior knowledge of the possession of the wrench by the co-accused.  He was fully justified in drawing that inference from the evidence. 

27.It was, after all, the co-Accused’s evidence that the wrench had been carried openly, affixed to the front wheel of his bicycle, the whole time.

28.That the word “tamper” may have been used at one stage is taken out of context and of no assistance to the Appellant.  The Magistrate demonstrated at paragraphs 13 to 16 of his Statement of Findings that he was fully alive to the fact that he had to be satisfied that the Appellant jointly possessed the wrench for the purpose of theft rather than simply for tampering with the motorcycles.

29.This ground is without substance.

(5)     By reason of the matters set out above singly or cumulatively and in all the circumstances of the case, the conviction recorded against the Appellant was unsafe and unsatisfactory and/or the trial Magistrate erred in law.  Alternatively, there is a lurking doubt in proving the charge of going equipped for stealing against the Appellant.

30.On the evidence of the two police officers of the circumstances at the scene, the admission made by the Appellant and the inferences which the Magistrate was entitled to draw, the conviction is entirely proper.

31.The appeal is dismissed and the conviction is confirmed.

Mr Tsang Patrick, C, instructed by Messrs Paul Chan & Co., for the Appellant

Miss Grace Chan Yuet-yee, SGC of Department of Justice, for the Respondent