Siu Kwok To v. R.
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CACC000628/1993 IN THE COURT OF APPEAL 1993, No. 628 ______________
______________ Coram: Hon Silke, V.-P., Litton, J.A. and Ryan, J. Date of hearing: 12 April 1994 Date of judgment: 12 April 1994 _______________ J U D G M E N T _______________ Litton, J.A. giving the judgment of the court: 1. This is Siu Kwok-to's application for leave to appeal against his conviction by His Honour Deputy Judge Gill, (as he then was), in the District Court on 30 September 1993 on one charge of handling stolen goods, for which he was sentenced to two years' imprisonment. The charge, brought under section 24(1) and (2) of the Theft Ordinance, was that, between April and June 1992, the applicant, together with persons unknown, dishonestly assisted in the disposal of a Mercedes-Benz private car knowing or believing the same to be stolen. Background facts 2. The background facts were straight-forward. (1) The applicant was the proprietor of Man Wai garage located at Chai Wan. The business was mainly to buy and sell cars and to spray paint customers' cars. The applicant had been in the garage business for about five years and was a car enthusiast. (2) In June 1992 he sold to a Mr. Wu a Mercedes Benz 280SE 1984 model which was metallic brown with beige upholstery. A Mercedes Benz 280SE has a fuel injection engine and a logo 280SE on the boot. (3) When this car was later examined by the police with the help of forensic experts, the following things were discovered: the car was originally metallic blue-green in colour and had been resprayed; the chassis number had been altered by cutting and welding and the original engine number had been obliterated and restamped. (4) This car had been stolen from a carpark in April 1992. 3. Given these facts it is not surprising that suspicion fell on the applicant. He had handled stolen goods. It was he who sold the car to Mr. Wu. The only issue at the trial was whether he knew that it was stolen. Obviously the most relevant question was: How did the applicant come to have in his possession this stolen car disguised in this way? The police cannot reasonably be expected to have the answer to this question. The only person who could supply the answer was the person who sold the car - the applicant himself. Cautioned Statements 4. The story he gave to the police in two cautioned statements was as follows. In March 1992, he had bought, by tender from an insurance company, a wrecked Mercedes Benz 280S 1982 model, with a view to fixing it up for resale; he made a deal with a man called Yu whereby Yu or someone else would have the wreck repaired and resprayed for $65,000; later the car was returned to him repaired and resprayed metallic brown so he paid Yu $65,000 cash; he did not have any documentation to support that transaction with Yu; he did notice that the badge on the boot had changed to 280SE but saw nothing significant about that; then some 20 days later he sold the car innocently to Mr. Wu. 5. Now, implicit in the applicant's story to the police is this startling fact, that this man Yu took from the applicant a wrecked Mercedes Benz 280S 1982 model and returned to him a more recent and more expensive vehicle a Mercedes Benz 280SE 1984 model and the applicant, a garage proprietor, was unaware of this unexpected bounty from Mr. Yu. Not surprisingly the police did not accept the applicant's explanation and he was charged. The trial 6. At the trial some highly damaging evidence was led by the prosecution which made the account given to the police even thinner. The stolen car as it turned out was resprayed metallic brown at Man Wai garage. The spray painter who testified said that it was the applicant who had given him instructions to do so. Later he was able to identify the stolen car as the car he had resprayed because of a fault in the paint-work which he remembered. 7. Faced with this evidence, the applicant changed his story when he gave evidence. He said that although the arrangement with Yu was that Yu should respray the wreck, in fact this was not done. His garage therefore did the work. The price was accordingly reduced to $55,000: despite the fact that in his police statements he said twice that the car was returned by Yu resprayed and he paid Yu $65,000 in full. 8. Another startling fact which emerged at the trial was this: The wreck had blue-grey upholstery. When it was returned, it was upholstered in beige; according to the applicant, this was thrown in by Yu as part of the deal for $55,000: a remarkable act of generosity on Yu's part. Not surprisingly the judge did not believe the applicant's story. 9. We have mentioned earlier the fact that the stolen car had false chassis numbers and restamped engine numbers. It was proved at the trial that the numbers belonged in fact to the wreck. So, implicit in the applicant's story is this further startling fact: not only did Yu return to the applicant a 1984 Mercedes Benz 280SE with beige upholstery, but he, or someone in league with him, had the chassis and engine numbers changed to match those of the wreck that he had taken. 10. One further fact proved at the trial is worth mentioning. In July 1992 the police found a Mercedes on open ground in the New Territories, apparently in the process of being stripped. The engine number had been partially obliterated and the chassis number cut out. That turned out to have been the wreck the applicant had bought by tender in March 1992. Reasons for Verdict 11. The judge had carefully analysed the facts and set them out in a clear and a succinct manner in his Reasons for Verdict. His conclusion was as follows:
It is difficult to fault that conclusion. Grounds of appeal The grounds of appeal put forward are as follows: (1) The judge was wrong in law in "drawing the irresistible inference" that the appellant "knew the car he purported to sell to Mr. Wu was a stolen one" on the "sole basis that the appellant's testimony had been rejected. The learned judge wrongly used the appellant's lies to found a conclusion of guilt". (2) The judge erred in that he failed to consider whether such lies were "in the circumstances consistent with a mere suspicion that the car was a stolen one". 12. At the trial the prosecution had plainly set up a formidable case against the applicant. It called for an explanation from him. Assume that the applicant did not go into the witness box: conviction must inevitably have followed. Can the case for the defence be improved by the defendant giving a false account - an account which was not only inherently improbable but one which contradicted his previous assertions in material respects? The answer must be No. In this case the matter goes further. By his own account in the witness box the applicant had linked himself inevitably with the plot to obliterate the identity of the stolen car. It could not have been a coincidence that the false chassis and engine numbers on the stolen car matched those of the wreck he had bought in March 1992. Conclusion 13. The evidence pointed overwhelmingly to the applicant's knowledge of the fact that the car sold to Mr. Wu had been stolen. Great pains were taken to disguise the car. The respray was done upon the applicant's instructions. The altered chassis and engine numbers matched the numbers on the wreck which he had bought. He paid a price for the wreck considerably in excess of its assessed value. Once his story was rejected the only possible inference to draw was that he knew the car was stolen. The deputy judge had come to that conclusion and expressed his reasons admirably in the Reasons for Verdict. The grounds of appeal are wholly without merit and the application for leave to appeal must be dismissed.
Representation: A.A. Bruce (Crown Prosecutor) for the Crown/Respondent David MA Wai-kwan (M/S B. Manek & Co.) for Applicant |