HKSAR v. Tsang Yuk Fei

CACC316/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 316 OF 2007

(ON APPEAL FROM DCCC NO. 448 of 2007)

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Before: Hon Stuart-Moore VP, Reyes and Wright JJ in Court

Date of Hearing: 1 August 2008

Date of Judgment:  1 August 2008

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J U D G M E N T

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Hon Wright  J (giving the judgment of the Court):

1.Each of the three applicants seeks leave to appeal his conviction, after trial, by His Honour Judge Mackintosh, on a single charge of handling stolen goods, those goods being 95 trees or parts of trees of the species Podocarpus macrophyllus.  They, together with two other accused who have not appealed their convictions, were intercepted by the police on board a 7.5 metre long, unlit sampan at 9.58 p.m. near Basalt Island within Hong Kong waters: also on the sampan were the trees which as the photographs show, and the judge found, recently had been uprooted.

2.Each of the five accused participated voluntarily in an interview with the police.  The three applicants elected to testify at the trial: each contradicted the contents of his interview.  Each of the two remaining accused exercised his right to remain silent but relied upon the contents of his interview.  The judge rejected the versions of events given by each of the applicants in his interview.  He further declined to attach any weight to the exculpatory portions of the records of interview of the other two men.  He was correct in adopting these approaches for the compelling reasons which he set out in detail in his Reasons for Verdict.

3.With the exception of one aspect of the testimony of the second applicant the judge also rejected the versions given in each applicant’s testimony.  The first applicant had testified, contrary to what he had indicated during his interview, that the trees had been offloaded at sea from another vessel onto the sampan: completely to the contrary, the second applicant indicated that a hillside had been climbed to remove the trees.  The judge took into account this testimony in court in the cases for and against each accused, as he was entitled to do.

4.Once the various versions had been rejected the judge drew the irresistible inferences that the trees had been stolen within Hong Kong, which was the primary issue at trial, and that the five accused knew them to be stolen goods.  He made that finding without relying on the fact of recent possession, although he then went on to refer to that concept.  The judge detailed the facts which he found to emerge from the evidence before him upon which he found himself driven to the conclusion at which he arrived.  In our view, those were both the proper and the only inferences that could be drawn from the evidence.

5.The first applicant was the helmsman of the sampan. His navigational skills were sufficient to enable him to command the vessel. In contradiction of what he said during his interview he claimed in his testimony that the trees had been transferred onto the sampan outside of Hong Kong waters. Had he been so minded, the judge may well have gone on to add that if that were so the last course  along which the first applicant would have steered the sampan would have been one that involved passing through Hong Kong territorial waters.

6.All three applicants pray in aid the decision of this court in HKSAR v LING Yuen and Others CACC 378/2005.  That case is wholly distinguishable, factually, from the present: in particular, in that appeal an application for the admission on appeal of further evidence which related to radar plots was granted. No similar evidence was led in this trial.  It was on the basis of that evidence that the convictions were held to be unsafe.  That appeal, decided upon its own factual basis, is of no applicability to the instant matter.

7.Each application was without merit and is dismissed.

Loss of time

8.Having heard counsel for each of the applicants, in the circumstances we order, pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221, that 3 months of the time that the 1^st applicant and 2 months of the time that each of the 2^nd and 3^rd applicants has spent in custody will not count towards the sentence presently being served.

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

Mr Bernard Yuen inst’d by M/s Hui & Lam for the 1st Applicant

Mr Jackson Poon inst’d by M/s Michael Cheuk, Wong & Kee for the 2nd Applicant

Mr W F Ching inst’d by M/s W S Szeto & Lee for the 3rd Applicant