HKSAR v. Do Van Ve

CACC000543/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.543
(Criminal)

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

Date of Hearing: 17 March 1998

Date of Judgment: 17 March 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 charges. A charge of handling stolen goods, which particularized that he, on an unknown date between 8th April 1997 and 10th April 1997, dishonestly received stolen goods, namely, one watch, the property of Wong Kwai-on, knowing or believing the same to be stolen goods and a charge of unlawfully remaining in Hong Kong. He pleaded not guilty to the handling charge and guilty to the unlawfully remaining charge. He was sentenced to 18 months on the handling charge and 8 months consecutive on the unlawful remaining charge. He now seeks leave to appeal against both conviction and sentence on the handling charge.

2. On 8th April 1997, HK$3,000 and two Rolex watches, one genuine and a counterfeit, were stolen from premises on Lantau. They were the property of Mr. Wong Kwai-on.

3. On 10th April, four unlawful entrants from Vietnam were arrested in a bus near the junction of Tung Chung Road and South Lantau Road. The applicant, who was D2 at trial, was one of those four. He was found in possession of HK$255 and the genuine Rolex. The person who was D1 at trial was one of the four and he was found in possession of HK$228 and a counterfeit Rolex. On arrest, the applicant said that he had brought the money and the watch with him from Vietnam and that he had purchased the watch in Vietnam before coming to Hong Kong. He conceded, when he gave evidence, that this was a lie ("the first lie"). In his evidence he said that he had come from Vietnam in a boat with three others on 8th April, that they had separated and then met up again when D1 had given him the Rolex which, according to his evidence, D1 said he picked up while on the boat. This was, upon the finding of the trial judge, the second lie. He explained the first lie, about bringing the watch from Vietnam, saying that it had been told at the prompting of D1. His evidence was:

"I had no choice but to do whatever is told by Phong (D1) ..... I just reacted as told so I did not think much about whether or not I was lying."

4. D1 gave evidence admitting the burglary and saying that he had given the watch to the applicant telling him that he had picked it up. It is to be noted that his story did not fully support that of the applicant as he made no mention of having picked it up in the refugee boat which was what the applicant said he had been told.

5. Deputy Judge Li, when making his findings, said:

"6. I had carefully considered the defence case, I did not find D2 or D1 reliable and rejected their evidence for the following reasons......"

6. The rejection by the judge of the evidence of D1 and D2 was, clearly, a rejection of the exculpatory evidence of D2 and must have included a rejection of the explanation for the first lie and the evidence which constituted the second lie. We do not accept any suggestion that the judge did not reject that exculpatory evidence or might even have been accepting some of that evidence. The trial judge went on and detailed his reasons for rejecting their evidence:

"a) D2 first said the Hong Kong currency found on him was exchanged in Vietnam and they were all bank notes. When confronted with the $5 coin, he then said it was given by a friend. I had the impression he was making up the evidence to suit his version.

b) D2 knew that possession of the Rolex watch was not an offence but he lied to the police about the source of it when interviewed. When asked why he did so, he explained that he had no choice but to follow what D1 told him. If the watch was given to him by D1 who picked it up somewhere, I could not see why he should lie.

c) While D2 said it was D1 who told him the watch was picked up while on the boat, D1 was adamant that he only told D2 he picked it up. Further, D2 said it was D1 who told him to lie to the police however D1 said he could not recall talking about the watch in the police station. I found this consistency crucial and cast great doubt on the credibility of either of them.

d) D1 came to know D2 when on the boat. He also talked to D2 about where D2 lived in Vietnam. On further questioning, he said they lived in the same village. They might have met but were not close friends. He contradicted himself so obviously that I did not find D1 reliable." (Emphasis supplied.)

7. The judge continued:

"I found D2 told a lie to the police in relation to the source of the watch. I reminded myself the criteria in assessing a lie by the defendant as set out in R. v. Lucas [1981] QB 720. Given the circumstances of this case and paragraph 4(b) above, I was sure the Defendant told that lie deliberately and conscious of his guilt.

The fact that D1 took the fake watch and gave the genuine to D2 was neither here nor there. There was no evidence D1 could distinguish the two watches. I drew an irresistible inference that D2 must know the watch was stolen based on the following:

a) D2 possessed the watch which was the subject matter of a burglary two days after the burglary. I found his explanation untruthful"

We pause here to say the "explanation" which the judge found untruthful must have been the second lie.

8. The judge went on:

"b) D2 told a deliberate lie and conscious (sic) of his guilt."

7. Having accepted the prosecution evidence as set out in Exh.P1 and the irresistible inference drawn in paragraph 6 above, I was satisfied beyond reasonable doubt that D2 was fully aware that the watch was stolen. I convicted him of the second charge accordingly. I also convicted him of the fourth charge relying on Exh.P1, his own evidence and his plea."

Finding b) above appears to relate to the first lie told to the police.

9. Mr. Petrus Chan, who appears for the applicant today, argues three grounds. The first ground is that the judge wrongly relied on the doctrine of recent possession where there was direct and undisputed evidence of the circumstances in which the stolen watch came into the possession of the applicant. Mr. Chan, relying upon the case if Ivan Bradley 70 Cr.App.R. 200 C.A., submits that where there is direct evidence of circumstances in which a defendant comes into possession of stolen goods, the doctrine has no application. The observations in Bradley, we are satisfied, have no application where the evidence of a defendant as to how he came into possession of the stolen goods is rejected as it was in the present case. The applicant initially told a thoroughly unbelievable story about his possession of the watch, i.e. that he bought it in Vietnam and carried it with him to Hong Kong. He then admitted that that explanation was untrue and explained why he gave it saying that he had been prompted by D1. He then gave what, in the view of the judge, was an equally unbelievable story as to how he came into possession of it, i.e. that he was given it by D1 who said he had found it on the refugee boat.

10. The trial judge was perfectly entitled to reject the second lie, which he did. If there was ever a matter where the doctrine of recent possession came into play, this was one. There is, we are satisfied, nothing in this ground.

11. In the second ground, Mr. Chan complains that the judge failed to give himself a Berrada direction. We have said, and we repeat, that it is not necessary for a judge sitting alone to state that he has given himself a Berrada direction. Indeed, we note also that in the present case the trial judge, before turning to deal with the evidence of the applicant, stated that he was born in Vietnam and that he had a clear record. We have no doubt that the judge fully bore in mind the applicant's antecedents when considering his evidence.

12. We turn then to Ground 3, which is that the judge erred when saying that the applicant told a deliberate lie under caution being conscious of his guilt as he failed to consider the purpose and circumstances under which the applicant had told that lie to the police. This submission contends that the judge was not entitled to be satisfied that the applicant's first lie told to the police when he said that he had bought the watch in Vietnam and brought it with him from Vietnam, was a lie told because of a consciousness of guilt. The applicant had sought to explain this lie by saying that it was told at the request of the 1st defendant, which request he had no choice but to follow. Mr. Chan argues that this was an explanation for the first lie which was consistent with innocence as there was nothing to show that he did not learn that the watch was stolen after his arrest and then tell a lie to protect his friend. This explanation for the lie should, it is submitted, not have been rejected as it is just as believable as the alternative which is that he received the watch knowing it to be stolen. This overlooks the fact that the judge having heard all of the evidence, including that of the applicant, rejected the evidence of the applicant. This lie was admitted and the explanation was not believed. Further the explanation did not go anywhere nearly as far as Mr. Chan wishes to take it as the applicant at no time said that he was lying to protect a friend. Even if there was force in that submission, it would not really help the applicant. As can be seen from the reasons set out above that lie was not the primary reason why the judge was prepared to infer guilt. The primary reason was the judge's rejection of the second explanation and the calling into play the doctrine of recent possession. Even if the judge had been wrong in holding that the first lie showed a consciousness of guilt, and we are by no means satisfied that he was, there was ample evidence upon which he could properly convict. The conviction was both safe and satisfactory.

13. The application for leave to appeal against it is, therefore, refused.

14. The application for leave to appeal against sentence has not been pursued and is dismissed.

Representation:

Mr. K.S. Kripas, S.G.C. (D.P.P.) for the Respondent.

Mr. Petrus Chan assigned by D.L.A. for the Applicant (re: conviction)

Applicant in person (re: sentence)