HKSAR v. Siu Kin Ching

CACC 54/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 54 OF 2007

(On Appeal From District Court Criminal Case No. 881 of 2005)

----------------------

----------------------

Before : Hon Tang VP, Cheung JA and Suffiad J in Court

Date of Hearing : 4 June 2008

Date of Judgment : 4 June 2008

Date of Reasons for Judgment : 10 June 2008

---------------------------------------

REASONS FOR JUDGMENT

--------------------------------------

Hon Cheung JA (giving Reasons for Judgment of the Court) :

1.The applicant was charged with two charges of handling stolen goods, contrary to section 34 of the Theft Ordinance (Cap. 210).  After being tried by Deputy District Judge Mierczak the applicant was found guilty on the first charge and acquitted on the second charge.  The applicant was sentenced to three years’ imprisonment on the first charge.  He applied for leave to appeal against conviction out of time.  At the conclusion of the hearing of the application, we granted the applicant extension of time to lodge the leave application but refused the application on the merits.  We now give our reasons.

The prosecution evidence

2.The evidence in relation to the first charge showed that on 21 February 2005 the defendant was driving a black BMW car with registration number BN 711.  He was intercepted by the police and upon examination of the car by the government chemist it was discovered that the engine number of the vehicle was 27299674226SI.  This engine number matched the engine number of another BMW car with registration number KA 1990.  KA 1990 was purchased by one Leung Wang Ching in June 2001.  It was stolen on 29 May 2004. 

3.It was an agreed fact that for each of the BMW cars, there is an eight digit combination engine number followed by an engine identification code stamped on the engine.  For BMW vehicles registered in Hong Kong, the first eight digits are used as the engine number for registration with the Transport Department.

4.The applicant was then arrested by the police for handling stolen goods.  Under caution he said that,

‘In March (or) April last year I crashed the BMW BN 711 at Hong Lok Yuen.  (I was) fined $4,000.  Later (my) friend, Fei Chai, offered to get the vehicle straight for $30,000 to be paid by me.  Then (I) went to the Transport Department for a change of colour.  I have to get a lawyer.’

5.The agreed facts further showed that the applicant was involved in a traffic accident on 12 April 2004 while driving a BMW car with registration number BN 711.  The police took photographs of the car.  The car was silver in colour.  The photographs further showed that the car was severely damaged with a broken front wheel axle and the front wheel was detached from the car. 

6.PW5 was a staff of a Chun Hing Motor Trade Limited (‘Chun Hing’).  She gave evidence that in February 2004 the applicant purchased a silver coloured BMW, model 320I, with registration number BN 711.  He took delivery of the car on 9 April 2004.

7.The car was on hire-purchase.  At the end of May 2004 the applicant asked PW5 to change the colour from silver to black.  She gave him a form to sign for the change of colour and she took the applicant to the financial department of Chun Hing to borrow the vehicle registration book because the car was on hire purchase.  The applicant signed the form for the colour change. 

8.PW5 then went to the Transport Department with the motor vehicle licence and the vehicle registration document both of which showed that the car to be silver in colour.  She was given a new motor vehicle licence showing black and a new vehicle registration document both showing black as the colour of the car.

9.On 17 March 2005 BMW BN 711 was examined by the Government Laboratory.  According to the agreed facts no silver layer was found and the opinion of the Laboratory was that the black colour paint of the car was not a re-spray over a silvery layer. 

The defence

10.The applicant chose to give evidence at the trial.  He took delivery of BN 711 on 9 April 2004 from Chun Hing.  It was involved in an accident three days later i.e. on 12 April 2004.  He received $90,000 as compensation from the insurance company.  He had contacted others to repair the car.  The owner of a garage called Auto Sport told him that he could repair the car for $30,000 but it would take two to three months.  The applicant thought that it was too long and so he contacted ‘Fei Chai’ or ‘Fei Chai Lun’ of Pak Sha Village to repair the car.  Fei Chai had done work for him in the past.  Fei Chai told him that it would take about a month and the applicant agreed to let Fei Chai do the work.  The applicant also asked Fei Chai to change the colour of the car from silver to black because he considered the silver colour was not lucky.  He further said that Fei Chai never told him that he had changed the engine of the damaged car with a stolen one.  The applicant further changed the tyres and the rims of the car.  The model number on his car was 320I but after the repair he changed it to 323I.  The applicant produced the invoice of the repair of Lun Kee Motors.    

11.As to two other stolen vehicles found by the Police in his yard, the applicant claimed that his brother informed him these two cars were placed there by Fei Chai.  These two vehicles were the subject matter of the second charge of which the applicant was acquitted.

12.DW1 of Auto Sport was called by the applicant to confirm his story. 

The Judge’s decision

13.The Judge rejected the evidence of the applicant and DW1.  He stated that :

‘ 54.   I repeat here that although the defendant offered an explanation to account for his possession I am satisfied that the explanation is untrue.  The defendant very well knew or believed that V1 (i.e. the stolen car belonging to Leung Wang Ching) was stolen and had dishonestly received those stolen goods.  He had only taken possession of his own vehicle on 9 April and three days later it had been involved in this car accident.  The defendant had said, as indeed DW1 had said, that the car was repairable.  There was absolutely no innocent reason to return a stolen car to the defendant, bearing in mind Vl had been stolen on or about 29 May 2004 and the defendant got his vehicle back in early June 2004.  And this was all done for $30,000.  Why would that have been? 

55.   The defendant is in the same trade.  He runs an automotive company and had been a technician for various garages for some years, and yet “FCL” had given him back a stolen car that he did not reasonably believe had been stolen.  I reject that.  And not only that but the defendant gets back the car and seeing it has “320I” on it, the same as his original car, he himself changes it to “323I” because he is superstitious.  The same reason is given for the change of colour from silver to black.  He is, after all, in the same trade.  So I reject that.  There is only one reason this was done and that is to attempt to cover up the true origin of the vehicle.’

Reason for delay

14.The applicant was convicted on 12 October 2006.  However his application for leave to appeal was only lodged on 12 February 2007.  He explained in his affirmation that when he was sent to the Lai Chi Kok Reception Centre (‘the Centre’) after the conviction he informed the Welfare Officer of the Centre that he wanted to appeal against his conviction.  He knew that his appeal had to be filed within 28 days.  He said that due to a misunderstanding he thought that once he informed the Welfare Officer of his intention to appeal the Welfare Officer would send the notice of appeal to the Court.  He did not realise that he had to sign the form himself.  It was not until November 2006 when he had a conference with his counsel that he realised that he should have sent the notice of appeal to the Court himself.  He was then advised to apply for leave to appeal out of time.  When he next saw his family members he asked them to urgently arrange a private lawyer for him.  Mr. Plowman S.C. (who appeared together with Mr. Derek Chan) informed the Court that the further delay in filing the application was due to lack of fund to instruct lawyers and the health condition of his former counsel who had since passed away

15.Mr. Tam, Senior Assistant Director of Public Prosecutions, counsel for the respondent, took no point on the delay.  Accordingly we granted extension of time to the applicant to lodge the application. 

Grounds of Appeal

16.We would now consider the merits of the application. 

17.The applicant relied on the following grounds of appeal :

(1)    In rejecting the explanation given by the applicant to account for his recent possession of the stolen vehicle, the Judge erred in:

(i) relying on the fact that “no one from Lun Kee Motors is here to verify” the invoice produced by the applicant as a basis for rejecting the evidence of the applicant that he had given his damaged vehicle to Fei Chai of Lun Kee Motors for repair when the applicant’s evidence was that Fei Chai could not be found and photographs were produced to show that the establishment was no longer in operation;

(ii)   finding that there was “no innocent reason” for Fei Chai to return a stolen vehicle to the applicant for $30,000 “bearing in mind that the vehicle had been stolen on or about 29 May 2004 and the defendant got his vehicle back in early June 2004” and failing to recognize that Fei Chai had obtained a vehicle of like value in the form of the applicant’s damaged BMW;

(iii) failing to assess the inherent unlikelihood of a person in the circumstances of the applicant (a successful car racer of some note) to knowingly receive and use a stolen vehicle (which was the same model as his damaged one) as his own private vehicle within days of it having been stolen, when his own legitimately purchased vehicle was repairable for a relatively small sum;

(iv) failing to give any or sufficient weight to the applicant’s cautioned statement given to the police on the day of his arrest; and

(v)   rejecting the applicant’s evidence that he was superstitious without stating the reason for that finding.

(2)    In rejecting the evidence of DW1, the Judge:

(i) erred in rejecting his evidence solely on the basis that it was consistent with the evidence of the applicant and

(ii)   mistakenly found that Mr. Tam was still operating his garage “Auto Sport” at the time of giving evidence when the evidence of Mr. Tam was that he stopped operating his business at the end of 2004 and therefore no longer had any business interest with the applicant nor motive to lie in court.

(3)    In all the circumstances, the conviction on Charge 1 was unsafe and unsatisfactory.

The background of the applicant

18.Before the individual grounds of appeal are examined it is necessary to consider the background of the applicant.  The applicant was engaged in the motor trade.  Prior to establishing his own company in 1996 he had been a car technician in repairing cars for about 10 years.  In 1996 he set up his own company ‘Golden Auto’ whose principal business was car beautification, maintenance, repair and the auto trade.  He was also involved with car racing.  He was obviously someone with considerable experience with motorcars.  

19.It is against this background that one considered whether the Judge was correct to reject the applicant’s explanation on how he came to acquire the repaired vehicle which turned out to be a stolen car.  With someone as experienced as the applicant he clearly must be in a position to tell whether the car that had been ‘repaired’ by Fei Chai was the same car that he had damaged earlier in the traffic accident.  His own car was severely damaged with the front wheel axle broken.  It would indeed be a surprise if the applicant could not tell that the ‘repaired’ car in fact did not have a broken front wheel axle and there was no spraying of black paint over the original silver paint.

The crux of the appeal

20.The crux of the applicant’s appeal was that the Judge had failed to recognise that it would have been beneficial to Fei Chai (a person whom the Judge found as being heavily involved in illegal motor trade) to return a stolen vehicle rather than his repaired vehicle to him because

(1)   it would be in the interest of Fei Chai to dispose of the stolen vehicle as soon as possible;

(2)   the circumstances of the applicant’s crash presented a unique opportunity for Fei Chai to switch the applicant’s vehicle for the stolen one.  After all the applicant had only been in possession of the vehicle for three days and would not be sufficiently familiar with his vehicle to notice the switch;

(3)   if Fei Chai did not make the switch he would have to find another crashed BMW as the new identity for the stolen BMW before he could put the stolen BMW on the market;

(4)   by making the switch Fei Chai got a BMW of like value which was not reported missing and which he could have repaired with the money paid to him by the applicant and with the proceeds of sale risk free.

21.It was further submitted that it would be extremely unlikely for Fei Chai to inform the applicant that he was returning a recently stolen vehicle to him instead of his repaired vehicle.  And the applicant would not knowingly drive a stolen vehicle because of the risk of being discovered. 

22.In those circumstances it was argued that it would be inherently improbable for the applicant to knowingly receive the stolen BMW in place of his damaged one. 

Assessment of credibility

23.The argument proceeded on the basis that the applicant would not commit the crime because by knowingly acquiring the stolen car he ran the risk of being detected some time later.  It goes without saying that the argument was that the applicant would not be so stupid or naive as to commit the crime. 

24.This was an argument that the applicant was of course entitled to make but at the same time very often one knows from life that a risk of detection will not deter a criminal from committing a crime.  Obviously he has taken a calculated risk when he decided to pursue a criminal enterprise. 

25.In this case the Judge came to the view that the applicant knew that he was not receiving his own damaged vehicle but was given a stolen car in return because of his experience in the motor trade.  The Judge rejected his story that he did not reasonably believe the car had been stolen.  In our view on the facts of this case the Judge was clearly entitled to do so.  As this Court ( Stuart-Moore VP, Stock JA and Lugar Mowson J) said in HKSAR v. Lo Man-kam, CACC 212 of 2001 :

‘ It is otherwise generally not for the Court of Appeal to usurp the function of the judge or the jury when it comes to the resolution of issues of credibility.  (See: R v Turnbull [1976] 63 Cr App R 132 and HKSAR v Lee Hon-shun CACC 626/1999).’

26.This principle is based on good sense because an appellate court is not empowered to retry a case with all the disadvantages under which it necessarily labours.  Bearing in mind that the appellate court has never seen nor heard the witnesses it was for the jury or the judge to evaluate the evidence, per Stuart-Moore VP. 

27.While Fei Chai might have his own interest to serve in selling a stolen vehicle, at the same time, given the background of the applicant, his explanation was so inherently improbable that in our view the Judge was entitled to reject it. 

Explanation of possession

28.It was said that the applicant had given a consistent story when he made the cautioned statement and the Judge had failed to take into account the consistent explanation.

29.Mr. Plowman referred to R v Ball and Winning [1983] 77 Cr App R 131 where McCullough J stated at pg 135 that :

‘Stolen goods frequently pass quickly from hand to hand.  Many of those who deal in them knowing or believing them to be stolen tell lies when they are asked to explain how the goods came into their possession. Others prefer to give no explanation.  That has been the experience of the courts for generations.  So when a defendant is found to have been in possession of goods recently stolen and either gives no explanation of how he came to acquire them innocently or gives an explanation which is patently untrue, it is the practice of judges to tell juries that they may, if they think it right, infer that he acquired them knowing or believing that they were stolen.  The innocent man has nothing to fear from this.  He has no need to lie.  He will, as a rule, be only too willing to give his explanation.  It is, in any event, an inference which a jury will only draw if they think it right to do so.’

30.The explanation given by the applicant at the time of his arrest might be consistent with his defence in court but ultimately what the Judge had to decide was whether that was a credible explanation.  Based on the state of the evidence, the Judge was clearly entitled to reject the explanation as being unbelievable.  Furthermore as part of the assessment of the issue of credibility the Judge was clearly entitled to take into account that no one from Lun Kee had come forward to give evidence and he was further entitled to reject the applicant’s claim of superstition on the change of the colour and the model number. 

Defence witness

31.The applicant also criticised the Judge for rejecting the evidence of DW1.  It was said that the Judge had made a mistake when he said DW1 was still operating the business known as Auto Sport at the time of the trial when in fact he had stopped the business at the end of 2004. 

32.We do not consider this to be fatal to the soundness of the decision simply because DW1’s business only ceased at the end of 2004.  The applicant approached DW1 to repair the car after the accident in April 2004.  The evidence was that

‘ DW1 said although the cost of repair would be $60,000, he could do it for a business friend for $30,000 but it would take two to three months.’

The Judge was clearly entitled to be sceptical of DW1’s evidence when he said :

‘ He (i.e. DW1) wanted to keep up a good business relationship with the defendant to maintain his own business, yet he told him he would take that long.’

‘ DW1 is clearly trying to tailor his evidence to fit that of the defendant.’

33.Ultimately the assessment of credibility of a witness was a matter for the Judge.  The mere fact that the evidence of DW1 was consistent with that of the applicant does not mean that the Judge was not entitled to reject it if he found such evidence to be incredible.

Conclusion

34.In our view the Judge was entitled to find against the applicant.  There was no merit in his proposed appeal against conviction.  Accordingly we refused the application for leave to appeal. 

Mr. William Tam, Senior Assistant Director of Public Prosecutions of Department of Justice, for the Respondent

Mr. Gary Plowman, SC and Mr. Derek Chan, instructed by Messrs Ong Hean Cheng & Company, for the Applicant