HKSAR v. Lee Ching

HCMA786/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 786 OF 2007

(ON APPEAL FROM TMCC 209 OF 2007)

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Before : Hon McMahon J in Court

Dates of Hearing : 29 February and 27 March 2008

Date of Judgment : 27 March 2008

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J U D G M E N T

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1.The appellant was convicted after trial in Tuen Mun Magistracy by Deputy Magistrate Kwok of an offence of theft.  He was sentenced to 8 months’ imprisonment.  He appeals both his conviction and sentence. 

2.The prosecution evidence was that the appellant resided in a house in Yuen Long, the lease of which was held from the Hong Kong Government by his brother.  A property immediately adjacent to the house formed part of that lease and in the early 1990’s it came to be occupied by an automobile company (“4WD”) operated by PW1 and PW2.  A variety of motor vehicle parts were kept on the site by 4WD particularly aluminium wheels bumper bars and tyres.  According to the evidence of PW1 he had paid $200,000 to the appellant in 1990 for the right of 4WD to occupy that land. 

3.There had in recent years been some dispute between the appellant and the proprietors of 4WD as to the latter’s occupation of the site caused primarily by PW1’s erection of an iron structure on the site which the appellant alleged caused water to leak into the appellant’s house and the blocking of the sewage tank.  The appellant also alleged the site was kept in an unhygienic state attracting insects or vermin which came onto his own property. 

4.The dispute worsened and eventually the appellant moved onto the site and changed the lock to the entrance gate so denying 4WD access to the site.  PW1 subsequently went on a business trip outside Hong Kong and did not return to the site for one month.  When he did return in about late August 2006 and gain entry to the site he discovered that a large number of aluminium wheels and some sets of motor vehicle bumper bars and tyres were missing. 

5.It was common ground that those items had been disposed of by the appellant on 8 August 2006.  He had sold them to a scrap metal merchant, PW4, who had sold the items for $38,000 of which he gave $26,000 to the appellant.  Subsequently the majority of the items sold by PW4 were recovered.  They consisted of approximately 160 aluminum wheels and some bumper bars. 

6.The appellant did not give evidence and did not call any witnesses.  By way of cross-examination of prosecution witnesses and by the production of correspondence between himself and PW1 and between his solicitors and PW1 he presented what amounted to a “claim of right”.  In short his case was that as a result of the damage caused to his own property by the site of 4WD and the state of that site he was entitled to occupy that site and dispose of the material and goods found upon it. 

CONVICTION

7.The grounds of appeal advanced by Mr Marash and Mr Jonathan Kwan on behalf of the appellant are as follows :

“1.	The learned Magistrate erred in finding that there was a case for the Appellant to answer as there was insufficient evidence in the prosecution case from which a court could be satisfied beyond reasonable doubt that the Appellant did not honestly believe that he had a claim of right of dispose of the property belonging to PW1 ...
2.	The learned Magistrate erred in finding that the prosecution had proved beyond reasonable doubt on the evidence that the Appellant did not have an honest belief that he was entitled to dispose of the property belonging to PW1.
3.	The reasons for convicting the Appellant in the oral judgment delivered by the learned Magistrate were insufficient to support his verdict and were factually incorrect in the light of the evidence and, in particular, the letters written by the Appellant and his solicitors to PW1.  The learned Magistrate failed to refer to the crucial letter dated 3rd May 2006 received by PW1 from the Appellant in his oral reasons. ...
4.	The learned Magistrate recited (in his statement of findings) the evidence given by PW1 but failed to resolve important conflicts between the evidence of PW1 and the evidence of other witnesses on important issues going to the credibility of PW1 and which supported the case put forward on behalf of the Appellant.
5.	In all of the circumstances and generally, the conviction of the Appellant was unsafe and unsatisfactory.”

GROUNDS OF APPEAL

Grounds 1 and 2

8.These grounds can be conveniently dealt with together. 

9.The magistrate addressed the question of the appellant’s assertion of a claim of right in his statement of findings as follows :

“18.	To argue that the Appellant possibly had subjectively thought that he was entitled to evict PW1, who was rightly or wrongly regarded as an unlawful occupier of land, by disposing of PW1’s property is against the common sense that disposing of such a large area and quantity of large-sized goods (some of them were still well-packed, see P2 photo number 9-16) is so drastic a measure that any reasonable person must know that prior court sanction has to be sought.
19.	I was sure the Appellant’s conducts were so hostile, so unilateral, so contradictory to his engaging a lawyer to resolve the water leakage dispute through litigation, and so unreasonable as to cause one to raise their eyebrows, that I was sure that the Appellant could not have any honest belief in such rights at all.”

10.The photographs the magistrate refers to show a large number of boxes containing aluminium wheels stacked upon each other.  They are surrounded by what can only be described as a disorderly mess.  PW1, whose evidence the magistrate accepted, asserted that there was no such mess before the appellant himself took possession of the premises some days prior to those photographs being taken. 

11.The reasons given by the magistrate are convincing and are reasons I agree with.  Whatever the background to, and the rights and wrongs of, their dispute concerning any damage to the appellant’s house and environment caused by 4WD’s occupation of the site, it is inconceivable that the appellant may have thought he had a right to appropriate what must have been obvious to him were a large quantity of potentially valuable aluminium wheels and tyres and some bumper bars.  Some of the aluminium wheels were, as the magistrate states, still in their packing.  Indeed as the photographs show a large number of them were still in their packing boxes. 

12.Mr Marash asserts that the wheels were corroded and obviously useless and that the appellant may well have believed they were of no value.  This was disputed by PW2 the latter giving evidence that the alloy wheels were worth about $1,000 each and that although one unpacked wheel had, as shown in a police photograph, gone rusty and lost value others in plastic packing had not. 

13.There were a number of photographs in evidence of the alloy wheels recovered by police and it is quite obvious that the very great majority of the wheels even after their recovery by police were still in their plastic wrapping and were obviously not scrap metal or rubbish as was put on behalf of the appellant but objects of some value. 

14.Even if the appellant believed that he, or his brother, held some remaining proprietary right in the site occupied by 4WD he cannot have thought that right extended to the sale of the wheels shown in the police photographs (or the still packed bumper bar recovered by the police also shown in the one of those photographs) nor can he had thought that he could sell those wheels or those items and retain the proceeds of that sale.  In my judgment the magistrate was right to arrive at the conclusion he reached in this regard.  Even if the appellant thought he had a right to re-enter the site and take possession of it, it must have been perfectly clear to him that any goods of value on the site were not his own property to dispose of but remained the property of 4WD. 

15.In any event the magistrate’s finding was that PW1 had “purchased” the right to occupy the leased Government land from the appellant and that the appellant must therefore have known not only that he had no right to repossess the site but also that he had no right to deal with the goods upon it. 

16.Mr Marash however points to a letter dated 3 May 2006 (Exhibit D3) which was written by the appellant and addressed to PW1.  The salient parts were as follows :

“To: Mr. Ma Tai Lap

...

Despite my repeated requests upon you to clean up the abovementioned place in the past few years, you have turned a blind eye to the hygiene problem and chose to ignore the issue.  As a result of your indifference, the place is now filthy and heavily infested with pests and rodents.  I have controlled the mosquito/pest infestation for you over the years but you still do not care about the problem.  To make the matter worse, you have drilled steel structures into the wall of my building without my consent, causing cracks and water seepage on the walls and fractures in the capitals.  ...

I now inform you solemnly that I shall no longer provide my place for the storage of your goods.  Please dispose of the goods in 7 days after this letter is issued.  Otherwise, I will in my own way dispose of your refuse and repair the house on your behalf. ...”

17.Mr Marash’s point is that the letter on its face strongly supports the appellant’s belief in a claim of right and was written more than two months before the appellant repossessed 4WD’s site. 

18.The magistrate in his Statement of Findings dealt with the letter in this way :

“21.

I was sure that all the correspondence could not found any honest belief in removing the goods at all.  First of all, I noted that the last paragraph of D3 clearly showed that the Appellant knew that some of PW1’s items were ‘goods’ which were stored at the premises, and some were ‘rubbish’ which the Appellant threatened to dispose of within 7 days.  ‘Goods’ of a motor company must be taken to include the tyres, alloy rims and bumper kits, and ‘rubbish’ must mean something useless or abandoned in nature : they must be something other than ‘goods’.  The Appellant threatened to dispose of the ‘rubbish’ but not the ‘goods’ within 7 days, therefore the letter lent no support at all to the defence of claim of right to dispose of the ‘goods’ in the first place.”

The magistrate continued :

“22.

To argue that the letter D3 showed that the Appellant thought he had a right in law to dispose of the ‘goods’ and ‘rubbish’ in one go, is tantamount to saying that he regarded himself entitled to dispose of the ‘goods’ even though it was the ‘rubbish’ which caused the alleged hygienic problems.  Closely examined, D3 showed exactly that cleaning up the ‘rubbish’ was blatantly put up as an excuse to cover up an outright thievish disposal of the ‘goods’.  As an illustration, it will be lawful for a neighbour who thought he had the right to clean the car of his lazy neighbour to the extent of rightfully removing the overgrowing grass covering the car but respecting the ownership in the car by not taking it.  But if he went so far as to tow away the car after threatening actions to ‘clean the rubbish’, then the court must distinguish between an honest thought and a dishonest camouflage for theft.”

19.Mr Marash points out also that the magistrate only addressed Exhibit D3 in his Statement of Findings and not in his earlier oral reasons for verdict but I do not think there is anything in this particular complaint.  A magistrate is not expected to cover every argument raised before him, nor every aspect of the evidence in giving an oral judgment.  In the present case the oral reasons given by the magistrate addressed broadly the appellant’s claim of right and found it to be disproven.  That, in my view, was sufficient.  There was nothing contradictory between those oral reasons for verdict and the later Statement of Findings. 

20.The letter of 3 May must be put in perspective.  On 24 July 2006 PW1 received a letter from the appellant’s solicitors concerning damage to the appellant’s house arising from the steel canopy built on 4WD’s site by PW1.  It is of note that in that letter no mention is made of any allegation that the site was unhygienic or untidy.  The letter referred to the giving of notice to PW1 and was expressed in terms that unless he came forward with “a concrete proposal to rectify the problems to the satisfaction of our client [the appellant] within 7 days of the date hereof our client shall have no alternative but to institute legal proceedings against you”.  The letter made no mention of the disposal of rubbish or goods to which the earlier letter of 3 May had referred.  

21.It was in my view a valid conclusion by the magistrate, regardless of the somewhat florid language used, that the appellant’s handwritten letter of 3 May, some three months before his appropriation ot 4WD’s properly, sat oddly with the fact that he had in the interim instructed solicitors to act for him in his dispute with PW1. 

22.The magistrate was correct to dismiss the 3 May letter as any real basis for the appellant asserting that on 8 August 2006 he genuinely believed he had a claim of right not only to re-enter and tidy up 4WD’s site but also to appropriate obviously valuable goods stored on the site. 

23.Regardless of the precise terminology used by the magistrate his fundamental conclusion in this regard, i.e. that the appellant must never have believed that he could dispose of the boxes of alloy wheels and other goods at the site as rubbish, is a conclusion which was in my judgement quite right. 

24.There was plainly sufficient evidence, as accepted by the magistrate, to warrant the appellant’s conviction on that basis and these two grounds fail 

Ground 3

25.I have already referred to the magistrate’s oral reasons for verdict being sufficient. 

26.The magistrate, after setting out the evidence and facts of the case, gave a summary of his findings in this regard as follows :

“My assessment of the evidence is as follows.  I note that the submission and cases on claim of right as to whether the prosecution have eliminated the possibility that the defendant might be appropriating the subject property under an honest belief that he had the right in law to do so.  I am sure that the claim of right that the defendant had such a belief — I am sure that, in fact, the defendant never honestly believed or held such belief in his right in law at all.

The defendant’s conducts were so hostile, so unilateral, so contradictory to his engaging a lawyer to resolve the water leakage dispute through litigation, and so unreasonable as to cause one to raise their eyebrows, that I am sure that the defendant could not have any honest belief in such rights at all.”

27.The fundamental issue in the case which the magistrate had to decide was whether it was possible the appellant had a belief that he was entitled to act as he did in disposing of 4WD’s property.  It is true that his oral reasons were somewhat brief, but those reasons did address the fundamental issue in the case.  Further there was nothing in them which was inconsistent with that set out in the magistrate’s subsequent Statement of Findings.  I am satisfied the magistrate’s oral reasons were sufficient and allowed the appellant and those advising him to know the basis of his conviction : see HKSAR v. Siu Chi Yin [1999] 2 HKC 403 at 407 and HKSAR v. Lee Siu Wo [2002] 3 HKLRD 283 at 284. 

28.I might add that even if those reasons had been inadequate at the time they were given, no prejudice has been demonstrated to me to have been suffered by the appellant as a result and the magistrate’s later thorough written statement of findings cured any shortcomings in the oral reasons.  This ground must also fail. 

Ground 4

29.Mr Marash’s principal complaint under this ground is that the magistrate failed to address properly evidence before him supporting the case of the appellant and undermining the credibility of PW1. 

30.The first aspect of the evidence Mr Marash says was not properly considered concerned the evidence of PW1 that he had “purchased” the right to use the site from the appellant in about 1990 for HK$200,000.  PW1 claimed the appellant told him not to try and register his interest in the land otherwise, as the appellant’s brother merely held it on lease from the government, the authorities might take action to terminate that lease. 

31.It was argued on the appellant’s behalf that this was an unbelievable version of events.  The magistrate rejected that argument and I think he was right to do so.  Such informal or unofficial dealings are notoriously common in Hong Kong and perhaps particularly so in the New Territories, whether it be in regard to the indefinite occupation of land or of a building.  No doubt such an “occupier” could well regard himself as a “purchaser” or “owner” of the land for all practical purposes of usage.  No doubt also PW1’s solicitors were aware of the true status of PW1 when, in a letter replying to a letter sent by the appellant’s solicitors in the course of the dispute between them, they referred to PW1 as the “occupier” of the land. 

32.I do not think there is any merit in Mr Marash’s criticism of the informal arrangement between PW1 and the appellant which led PW1 to regard himself as the “purchaser” of the land as opposed to his solicitors’ reference to him as the “occupier” of the land.  The magistrate’s assessment of the credibility of PW1 was rightly not affected by this aspect of the evidence. 

33.Nor do I think there is any merit in the appellant’s assertion that PW1’s payment of cash for the land was inherently unbelievable.  PW1 had said in evidence he appreciated his “purchase” of the land was likely unlawful.  In that context, and given also that the $200,000 was paid in several instalments the magistrate was also correct in my view not to place any great weight on the appellant’s assertions in this regard. 

34.Mr Marash complains further that PW1’s version of events concerning the damage to the appellant’s house caused by the erection of the canopy on the 4WD site was not worthy of credit.  Mr Marash’s point was, as litigation was imminent regarding this matter that the magistrate should have approached the evidence of PW1 in this regard with caution.  Two responses can be made to that.  Firstly there is nothing to suggest the magistrate was not careful in dealing with this matter.  He examined PW1’s evidence carefully and there is nothing to suggest he was not aware of the background of litigation between PW1 and the appellant when he assessed PW1’s creditability.  It should also be remembered in this regard that the appellant did not give evidence and called no witnesses so that the only direct evidence before the magistrate as to all of these matters was that of PW1.  Secondly the matter was in any event of subsidiary relevance to the central issue in the case as to whether the appellant believed he had a right to dispose of PW1’s goods. 

35.Mr Marash points out under this ground that the magistrate found that PW1 had not admitted liability for damage to the appellant’s house without resolving that part of PW1’s evidence in cross-examination where PW1 had admitted agreeing to settle matters between he and the appellant for $200,000. 

36.That evidence went as follows :

“A.	I asked my friend for his or her advice and they all treated this matter as a joke.  The piece of land was acquired by me and I could deal with this piece of land as I wish.
Q.	What about repairing the house, you thought that was a joke too?
A.	Before that, a verbal agreement was already reached, and the price agreed was $200,000-odd.
Q.	200,000 or 200?
INTERPRETER:  I’m sorry, $200,000.
A.	However, the amount quoted was unacceptable to us.”

37.It is quite obvious whatever PW1 meant by “agreement” in his initial answer the context of his evidence was that in fact no settlement had been agreed.  There was nothing the magistrate was required to resolve here particularly bearing in mind as I say that this matter was of subsidiary importance to the main issue the magistrate was required to address. 

38.The third area of evidence complained of by Mr Marash concerned the untidy state of the premises.  Again in my view this was a subsidiary issue.  Whatever the state of the premises it must have been obvious to the appellant he had no right to sell PW1’s, i.e. 4WD’s goods. 

39.But Mr Marash complains that there was evidence establishing the premises were in a mess contrary to the denials of PW1 and PW2.  He points to photographs dated 13 July 2006 taken by the appellant on behalf of the appellant establishing that fact.  But the evidence of PW1, supported by PW2, was that the premises had been kept in a tidy state until the appellant had unilaterally taken possession of them at a date prior to 13 July.  Once the magistrate accepted the evidence of PW1 and PW2 in this regard the issue was resolved. 

40.Other similar complaints were raised by Mr Marash in respect of other aspects of the evidence but, in my view, the magistrate either resolved those matters by his acceptance of the evidence of PW1 who had offered explanations for all or most of them or, if that were not so, the matters themselves were so trivial in nature or of such marginal relevance to the important issue in the case that there was no necessity for the magistrate to refer to them. 

41.It should be borne in mind that although the present appellate proceedings are a rehearing (see HKSAR v. Chou Shih Bin [2005] 1 HKLRD 838 at 845) it is still the case in my view that the findings of the trial magistrate as to credibility must be given significant force.  He remains in the best position to assess the credibility of witnesses.  He has the flavour of a witness’s evidence and of its presentation, and certainly in cases where the appellate court does not have the whole of the evidence before it, of its context.  Nothing has been put forward in argument before me to undermine the magistrate’s findings as to the credibility of PW1. 

42.Mr Marash somewhat disjunctively under this ground also argues that the civil law supported the appellant’s actions in disposing of PW1’s (i.e. 4WD’s) goods and his retaining of the proceeds.  I do not agree that is so.  But in any event the issues before the magistrate, as they evolved in court, had little to do with the niceties of the civil law.  The issue was whether the appellant in fact believed he had a claim of right.  That issue, as I have set out above, was rightly decided by the magistrate in the context of a criminal trial. 

43.Finally under this ground it was variously argued that certain factual findings or conclusions of the magistrate were wrong.  Those matters put forward in illustration of this argument were not supportive of any conclusion that the magistrate had erred factually in any substantial sense and indeed the matters complained of when examined in context were, if some findings were stated somewhat ambiguously and sometimes overly flamboyantly by the magistrate, well short of being errors of the sort alleged. 

44.This ground also failed. 

Ground 5

45.This final ground was effectively a compendium of the arguments raised under the previous grounds and, given my conclusions in respect of those other grounds this ground also failed. 

46.The appeal against conviction is dismissed.  I turn now to sentence. 

SENTENCE

47.The complaint advanced on the appellant’s behalf was that the sentence of 8 months’ imprisonment was manifestly excessive in the circumstances of this case.

48.The appellant at the time of the offence was 49 years old.  He had a clear record and there was nothing to suggest he was other than a person of previous good character.

49.He had been at loggerheads with PW1 for some time.  That is plain from the correspondence between the appellant and his solicitors and PW1.  That dispute continued for some months after the offence took place and so far as I can see had all the hallmarks of a dispute over property between neighbours.  I am told that the dispute is still ongoing.  There is no doubt, whatever the merits of the appellant’s claims concerning damage to his house and environment, that at the time of the offence the dispute was heated as many such disputes between neighbours can be.

50.It seems to me that the sentence of 8 months’ immediate imprisonment was excessive in those circumstances.  That is so particularly given that 4WD (i.e. PW1) were able to recover the main part of the stolen property.

51.In all those circumstances I propose to suspend the appellant’s sentence for two years.  The terms of such suspended sentence have been explained to him.  He understands and he accepts those conditions. 

52.Accordingly the sentence of 8 months’ imprisonment imposed by the magistrate is ordered to be suspended for a period of two years pursuant to the provisions of section 109B of the Criminal Procedure Ordinance, Cap. 221 and the appeal against sentence is allowed to that extent.

Ms Polly Wan, SGC of the Department of Justice,for HKSAR

Mr Daniel Marash, SC and Mr Jonathan Kwan, instructed by Messrs Pansy Leung Tang & Chua, for the Appellant