The Queen v. Ng Wai Keung

CACC000108/1988

BETWEEN

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Coram: Hon. Kempster, J.A., Hunter & Power, JJ.A.

Date of Hearing: 17th May 1988

Date of Judgment: 17th May 1988

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J U D G M E N T

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Power, J.A.:

1. The applicant was charged that he, together with CHAN Chi-kong, the first defendant, on the 17th of October 1987 at Kowloon together with a person unknown, having entered as trespassers the Chief Light Company Limited, Flat C3, 9th floor, Wing Hing Industrial Building, stole 1700 Gold Line boxes of vidoe tapes, one Hitachi video tape recorder and one Kofa typewriter. The first defendant pleaded guilty to that charge but the applicant, who pleaded not guilty, was, after trial before District Judge Sanders, found guilty and ordered to be detained in a training centre. He now appeals against that  conviction.

2. The evidence is set out in Judge Sander's Reasons for Verdict from which I take them.

3. The prosecution witnesses, who are police officers, gave evidence that they saw a goods vehicle proceeding along King Yip street at about 10.25 p.m. on the 17th of October and that as this vehicle did not obey a signal to stop they boarded their own vehicle and gave chase. They said that when the goods vehicle stopped at 19-21 Shing Yip Street both doors of the driver's cab opened and a man got out from each side and that a third man jumped down from the tray of the vehicle and that all ran off towards Hoi Yuen Road. Their evidence was that none of these men stayed beside the vehicle but that all upon alighting immediately ran away.

4. The applicant himself gave evidence saying that he had been contacted by a friend and asked to help in the removal of some goods from a factory. He said that he had contracted another person called Ah Wah and asked him to assist in this removal job and that on arrival at the factory the 1st defendant used keys to open the factory and that they had then moved the goods, which were the subject of the charge, from the factory into the vehicle. He went on to say that when the goods vehicle went through the road block without stopping he went up to the front of the tray and tried to ask the 1st defendant what the matter was but that the 1st defendant immediately said "run", got out of the goods vehicle and ran away. He said he was very very frightened because he didn't know what was going on so he ran away also. He then said that he alighted from the tray of the vehicle immediately behind the driver's seat and that he did not run away immediately but walked to the pavement and stood there with other pedestrians, two men, and then walked away. He said that he saw the police officers chasing the 1st defendant and did not know why they did not apprehend him but that perhaps they had not seen him. This evidence was in direct conflict to the evidence of the police officers who, of course, had said that they had seen the man who jumped from the tray run away immediately and had chased but failed to apprehend him. He went on to say that after the goods vehicle' had stopped he saw police vehicle stop and that he was then on the pavement. He was asked if he was then alongside the goods vehicle in which he had been travelling and his answer was "You could say that". It would seem that this question was probably prompted by the words in a statement which he had made to the police in which he said, "So I alighted from the goods vehicle and stood beside it." He went on, however, to say, that he was on the opposite side of the street at that time and that he stood there and saw a police officer get out of the police vehicle and stand guard over the goods vehicle. He said that after a short time he walked away and that he had never at any stage run.

5. It was drawn to his attention in cross-examination that in his evidence earlier he had said "I ran away''. He denied having said this and maintained that all he had said in his evidence was that he gone up to the front of the tray behind the driver and had got out of the goods vehicle. The trial judge notes that his note of evidence was then read to the applicant who then said "When I said I ran away I meant I jumped down from the tray." The tenor, of course, of the applicant's evidence and of his cautioned statement was that, although he had been involved in the operation on that evening, he had been completely unaware that it was an illegal transaction.

6. The trial judge having heard the evidence was satisfied that the Crown witnesses were honest and reliable witnesses. He was satisfied to believe their evidence in all material respects. As to the applicant he said "I believe him to be a deliberately dishonest witness". He went on to say:

"In his evidence he changed his ground, for example, as to whether he ran away from the goods vehicle after it had stopped in Shing Yip Street or instead had stood by the goods vehicle. His evidence was also confused about where he had actually stood-alongside the goods vehicle or on the opposite side of the road.

I found that after the goods vehicle had stopped D2 jumped off it and ran with Dl and the 3rd man, in the same direction, away from the vehicle. He did not stand alongside is or on the opposite side of the road."

7. Mr. Wong who appears for the applicant contends that the trial judge should not, upon the basis of the evidence as it unfolded, have arrived at that conclusion. He argues that the trial judge was not entitled to draw the conclusion he did as to the applicant being a deliberately dishonest witness. His additional ground of appeal suggests that the trial judge failed to understand the applicant's evidence-in-chief about running away and, therefore, wrongly concluded that he changed ground when giving. evidence.

8. It is true that having said he ran away he then immediatly contradicted this by saying that he had alighted from the driver's seat and that he did not run away immediately. It is also true that he then said that he stood on the pavement and later walked away. This evidence on the face of it betrays what the trial judge described as "confusion". Mr. Wong seeks to explain this confusion by saying that the term "run away" in Cantonese can also mean "leave". There is nothing in the record contained in the judge's notes to suggest that the words used conveyed any such dual meaning. We are bound by the record and the record is clear. He said he ran away, he then contradicted himself by saying that he got down, he then said, again using the term "run away", that he did not run away-immediately. He then again contradicted himself saying that he having stood about for a short time he walked away. When he was cross-examined about this matter he denied having said that he ran away. He then appears to have conceded that he did use the term and sought to explain his use of it by saying that when he said he ran away he had meant he jumped down from the tray. We are satisfied that the trial judge was perfectly entitled to come to the conclusion that the witness was changing his ground when giving this evidence. We are satisfied further that there was a real degree of confusion in the applicant's evidence as to where he was standing after he alighted and that the trial judge was perfectly entitled to comment as he did on that evidence.

9. We turn now to the main thrust of Mr. Wong's argument. He submits that the trial judge when he came to his final conclusion, having found that the applicant had run away, "that at all relevant times he was fully aware that he was taking part in the burglary alleged and willingly did so." leapt from a finding that there had been a lie on a peripheral matter to a conclusion of guilt without addressing his mind to the possibility that the lie might have been motivated by fear of an unjust verdict or might have been an attempt to improve on what was essentially a truthful story.

10. We must, when examining this submission, look to the words of the trial judge's finding. He found that the applicant was a deliberately dishonest witness. He was satisfied as to the honesty and reliability of the prosecution witnesses. He was satisfied that the story about getting down from the goods vehicle and standing either alongside it or across the road from it was untrue. He was satisfied, that the applicant got down and ran away from the goods vehicle.

11. The essential matter in this case was whether or not there was evidence to establish guilty mind in the applicant, i.e. that he knew that the goods in the vehicle was stolen. The trial judge was satisfied from the running away to draw that inference. This case is very similar to that dealt with by the Privy Council in Director of Public Prosecution v. Brookes ⁽¹⁾ In Brookes's case the defendant was charged with possession of cannabis. The magistrate ruled that, the evidence before him being that the respondent had tried to run away from a vehicle containing cannabis, this was sufficient to establish a prima facie case of possession on the part of the respondent. The respondent gave an unsworn statement suggesting that he did not runaway which was rejected by the magistrate. The magistrate then said that he believed the statements of the two constables, who had deposed that the respondent had tried to run away, and, without giving any further reasons, found the respondent guilty of the offence charged. and sentenced him. This matter when it finally reached the Privy Council was argued upon the basis that the magistrate should not have drawn the inference which he did draw against the accused. The decision of the Privy Council was that on all the evidence, and in particular the fact that the applicant and the other occupant of the van attempted to run away as soon as they saw the uniformed police officer approaching the magistrate was fully entitled to draw the inference that the respondent knew what he was carrying in the van. It was clearly held that it was proper to draw an inference of guilty knowledge from the fact that a person upon seeing police approach immediately flees the scene. This was precisely the position in the present case as the trial judge found that after the goods vehicle had stopped the applicant jumped off and went with the other two men away from the vehicle. He specifically rejected his evidence to the contrary. He then held that he was satisfied that at all.relevant times the accused was fully aware that "he was taking part in the burglary alleged and willingly did so." He was entitled to draw this inference from the fact that the applicant had left the scene and there can, we are satisfied, be no valid criticism of the fact that he did draw it.

12. Mr. Wong raised two additional matters suggesting that the trial judge had failed to give due weight to the fact that the applicant had surrendered and that he failed to give proper consideration to the contents of the cautioned statement. We see no substance in either grounds. The trial judge made mention of both the fact of surrender and the cautioned statement in the statement of findings and was clearly aware of both of these matters when coming to his conclusion.

13. For the above reasons we are satisfied that the application for leave to appeal against conviction must be dismissed.

(1) [1974] 2 All E.R. p.840

Representation:

Mr. A.A. Bruce (Crown Prosecutor) for the Respondent

Mr. Frank Wong (D.L.A.) for the Applicant