HKSAR v. Ho Sin Hang
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HCMA 579/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 579 OF 2008 (ON APPEAL FROM TMCC 731/2008) ----------------------
---------------------- Before: Deputy High Court Judge Mackintosh in Court Date of Hearing: 22 October 2008 Date of Judgment: 22 October 2008 ---------------------- J U D G M E N T ---------------------- 1.The appellant was convicted of theft by a deputy magistrate at Tuen Mun Magistracy on the 21st May 2008 and was subsequently sentenced to 21 months’ imprisonment. He appeals only against the conviction. Prosecution case 2.The alleged theft was of 20 large bags of plastic material (pellets used for making optical discs) valued at US$40,000 or about HK$ 310, 000, from a warehouse in Hung Shiu Kiu, near Yuen Long, where the appellant was employed as a fork lift truck driver by the owners of the plastic, a company called CNC Magnetic (HK) Ltd. 3.It was common ground that the warehouse was in effect an overspill warehouse for the company, which was used when the warehouse attached to its offices was full. It was situated roughly 6 km from the company offices and was not always attended by company staff, only when necessary. It was however guarded by employees of a security company of whom PW1, Wong Sing-chau, was one. When staff attended at the warehouse, he would make a record of their names and goods in or out would be recorded. That record would be taken by the company staff in question back to the offices. Goods would be handled by a forklift truck in respect of which there were two drivers, the appellant and another man called Chan Ka-lung, PW2. 4.The appellant had been employed at the company since 2001 and PW2 since about 1999. In 2006, the appellant had been promoted as the supervisor of PW2. 5.PW3, Lam Wing, was the manager of the company and had known the appellant since he joined. The appellant, PW2 and PW3 were obviously very familiar with each other as colleagues. 6.PW1 had been employed at the warehouse for about a month on the material date which was the 12th November 2007. It is common ground that on that day, 20 large bags of plastic were stolen from the warehouse in question. 7.The prosecution case falls into three main areas. 8.First, the prosecution say that on that day, PW1 was on duty at the warehouse. He saw someone whom he identified as the appellant, with other persons, engaged in removing first 8 large bags, and then 12 large bags, of plastic pellets into two lorries which were then driven away. Records of the removal were made by PW1 and those records were later taken by the appellant for transfer to the office, so far as he knew. 9.PW1 said that in his time working at the warehouse, he had seen the appellant on three or four occasions, for roughly 20 minutes each time. He kept his eye on the process of the removal of the two lots of bags of plastic on that day. Only one of the forklift drivers was working that day, the other was on leave of absence. I will return to the issue of PW1’s identification of the appellant later. 10.The second element of the prosecution case came from PW2, the other forklift driver. He testified that he was not at work on the 12th November but that at about 6 p.m. that evening, he received a phone call which he said was from the appellant. He recorded the call on a memory stick incorporated into his mobile phone. He did so, he said, because, in the previous month, the appellant had spoken to him about taking, i.e., stealing, goods from the warehouse and he, PW2, did not want to get into trouble in relation to this matter himself. So when the appellant referred to taking away “20 packets”, he pressed a button on his phone to make the recording. 11.The recorded phone conversation was, according to the prosecution, preserved and in due course handed to the police who transcribed it: exhibit P3. The prosecution allege that the remarks of the appellant amount to an admission that he was responsible for the theft of the property in question and was seeking the co-operation or assistance of PW2 in covering up the theft. 12.The third plank of the prosecution case relates to the next sequence of events. The next morning, the 13th November, PW2 went to the warehouse to check and discovered that the 20 bags referred to in the conversation on the phone were missing. He reported the loss to PW3, the manager, and he played him a portion of the recorded telephone conversation. PW3 testified that he recognized the appellant’s voice. 13.Later on the 13th, PW3 spoke to the appellant and asked if he was responsible for the theft. The appellant denied responsibility. PW3 called PW1 over from the warehouse and confronted him with the appellant. He asked PW1 if the appellant was responsible for the removal of the goods and PW1 said that he was the one involved. He was then sent away again. 14.PW3 spoke to the appellant again and in due course the appellant admitted responsibility to PW3 who tried to persuade him to surrender to the police. The appellant, having apparently consulted a lawyer, declined to do so. 15.The matter was reported to the police and the appellant was arrested and eventually charged with the theft. The defence case 16.The appellant was a man with no previous convictions. He elected not to give evidence or call witnesses. At trial, and in this appeal, the appellant challenged the accuracy and reliability of PW1’s identification of him, challenged the authenticity of the recorded phone call, challenged the evidence that it was he who had made the phone call and challenged the alleged admission to PW3, faintly as to its admissibility, but essentially denying that it was properly proved that the admission was made, on the ground that the manager was not a reliable witness. The grounds of appeal 17.The appeal is mounted on the grounds that there were discrepancies in the evidence which could not be resolved; that PW1’s identification of the appellant as being involved in the theft is unreliable; that the telephone recording allegedly made by PW2 was unreliable as to its provenance; that the identification of the appellant as one of the speakers in the conversation is uncertain; that no weight should be attached to the contents of the conversation; that the alleged admission to PW3 was unreliable, both as to whether it was said, and whether, if it was, it was said voluntarily. It is submitted that the magistrate was wrong to rely on these elements of the evidence singly or in combination and that the conviction is therefore unsafe and should be quashed. 18.I have received detailed written analysis and submissions from both sides which I have read and which have been enlarged orally today. I have been provided with a transcript of all the evidence of the witnesses in the magistracy, which I have read. This is, as we know, a rehearing of the case, based on that evidence; but it is always important to remember that the magistrate had the advantage of seeing and hearing those witnesses, whom he described as honest and reliable. 19.He did not do so in a vacuum. He gave detailed reasons for his conclusions which I am entitled to take into account. However, it is at this stage a matter from me to determine whether the evidence justified the conviction or whether, as is submitted, it ought properly to leave a doubt about the appellant’s guilt, in which case, the conviction would have to be quashed. Of course, the prosecution case is to be seen as a whole, as a sum of its parts, to decide what it proves; but it is appropriate to look at it in a sectional way to evaluate its strengths and its weaknesses. PW1’s evidence 20.I turn therefore to PW1, the security guard. I need not describe in detail what he said about the actual theft, save to remark that his evidence was that he watched the forklift truck being used to load the bags onto the two lorries which were driven off. His attention was not elsewhere. Therefore he was engaged in watching the forklift truck and its driver for a significant period. He had also seen the driver earlier the same day, loading pallets of cartons onto a container; and so this was not a short lived observation on that particular day. There was only one forklift driver operating that day. 21.The next afternoon, the 13th November, PW1 was instructed by the manager, PW3, to go to the company office and he was picked up in a vehicle and taken there. By this time, PW3 had confronted the appellant about the theft and the appellant had denied it. PW1 did not know why he was being asked to go to the officers; but when he got there, he was taken to a conference room where PW3, his female assistant and the appellant were. PW3 asked him (according to PW1) who had taken the bags away and he told him that it was the appellant. PW3 said that he asked who moved the things and PW1 said, “It’s him” and pointed out the appellant. There is no significant difference between the witnesses as to this. 22.It is submitted that the confrontation was inherently weak, given that the appellant was the only person in the room other than PW3 and his female assistant. However, the witness was not pointing out a stranger, he was pointing to someone whom he had seen on a number of occasions before at the warehouse, for prolonged periods: three to four times, for 20 minutes each time. He was pointing out the appellant only a day after the theft. I am satisfied that the evidence was properly adduced and is to be given weight in the context of the other evidence. 23.PW1 went on to make a witness statement the same evening, the 13th November. In that witness statement, he gave a description of the thief to which I will return in a moment; but I need to mention this first. It was submitted, expressly in the appellant’s written submissions and, at one point, obliquely in oral submissions, that the witness was in effect describing the thief as a stranger, not identifying him as a forklift truck driver whom he had seen repeatedly. This is not quite right in that he did refer in his witness statement to the person loading the bags as a member of staff, whom he had seen before, someone who came regularly to remove goods from the godown. It is correct that he did not describe him expressly in the statement as one of the forklift truck drivers; but I am satisfied that this is of no consequence. 24.The description given is of more significance because he described the thief driving the forklift truck as having “black” hair. PW1 maintained in evidence that the driver had black hair. At the time of this incident, the appellant had brown hair, that is, it was tinted. PW2 described it as brown at the time. PW3 said his hair was sometimes black but at the time, he had brown hair: it was “blacker” than when he appeared in court in April 2008, but still, in November 2007, it was brownish tinted. So, it is submitted, the description of black hair in the statement by PW1 did not fit the appellant and undermines his identification. 25.I note the point but I note also that the statement was made on the evening of the 13th November, after PW1 had identified the appellant to PW3: he was clearly describing one and the same person and the use of the word “black” has to be seen in that context. It does not significantly undermine the quality of his identification of the defendant by PW3. Neither does a point made about whether the thief was or was not wearing glasses. According to PW2 and PW3, sometimes the appellant wore them, but not always. According to PW2, he also wore contact lenses. There was no reference to the thief wearing spectacles in PW1’s statement but he said in evidence that he was wearing them at the time. I note the absence of reference to spectacles in the statement; but again, this is to be judged in the context of PW1 having already identified the appellant to PW3. 26.It is suggested that PW1 identified the appellant simply because he feared being blamed for the theft himself, in effect, that this was a convenient scapegoat. This was not the way matters were put to PW1 in the trial. I am in no doubt that this was not the attitude of PW1 who was clear and unequivocal in his evidence as to his identification of the appellant, whom he also picked out at a formal identification parade in early December. There is no reason to doubt the magistrates finding that PW1 was honest. His evidence is not to be seen in isolation but is, in the Turnbull context, to be seen as being supported by the other evidence in the case. The magistrate applied the Turnbull principles. PW2’s evidence 27.I turn to the evidence of PW2 who is, to an extent, painted as the possible villain of the piece. It is suggested, as it was at trial, that he is unreliable, that he may himself have been involved in the theft and that his evidence should be rejected. 28.On the 12th November, he was recorded as absent from work: that is common ground and am satisfied that there is nothing in issues raised about how he came to be so recorded. It is suggested that the security guard, PW1, may have been mistaken as to which of the forklift truck drivers it was who actually moved the goods, and that it may have been PW2. PW2 denied involvement; it was barely put that he was responsible, only that he may have arranged for the goods to be removed. Only two people had keys to the forklift truck, PW2 and the appellant, but there is no reason to think that PW1 may have muddled the two of them or deliberately transposed them. I reject any suggestion that PW2 was the forklift truck driver on the day, as did the magistrate. 29.More significantly with PW2’s evidence, is the telephone conversation in Exhibit P3. Firstly, let me say that I am satisfied that if this recording is genuine, it amounts to a clear admission by the party to whom PW2 was talking, of participation that day in the theft of the bags and a request to PW2 to assist in covering up the theft. The caller clearly had an intimate knowledge of the company because, amongst other things, he was able to identify the person responsible in the company for stock record-keeping as a lady called Rebecca; and PW2 was exhorted to give her some form of explanation. The prosecution say that points to an insider, such as the appellant, who was also aware of the stock control system in the company and how discovery of the loss could at least be delayed. 30.The question therefore is: was this a genuine recording? PW2 said he made it because of the previous conversation in October when the appellant had asked him to participate in stealing: that is the relevance of that evidence, it lays the foundation for recording the call. 31.The appellant points to the fact that this recording was not played to him during the confrontation with PW3 and neither was it given to the police when they were called in the same day. The police did not take possession of the memory stick until February 2008 when, during an investigation into another theft from the warehouse, they interviewed PW2 for the first time. This, it is submitted, should at least raise some doubt as to the authenticity of the recording. 32.Apart from the evidence of PW2 on this matter, there is the evidence of PW3 who, in accordance with PW2’s evidence, says that he listened to a brief passage from the recording when, on the 13th November, PW2 reported the theft to him. It is said that as the recording was not played to PW3 in court, there is no evidence that it was the same one as referred to by PW2. I reject that. PW2 said it was the same. 33.PW3 listened to the recording at PW2’s request for long enough to recognize the appellant’s voice and to appreciate that he was admitting the theft. PW3’s evidence therefore supports PW2 as to the existence of the recording at that time. 34.The absence of any expert evidence to prove that it had not been tampered with, does not inherently devalue it. The case put for the appellant was that it was not him on that recording, not that it had been in some way interfered with. PW2 said that he had preserved it without interference. That was enough, if PW2’s evidence was accepted. 35.PW3 said that he did not play it to the appellant because he did not want the appellant to know that it was PW2 who had reported the matter, for fear of retaliation. I am satisfied that this was a rational and sensible reason. 36.A conflict arose on the evidence as to whether PW3 had told the police about the existence of the recording. He insisted that he had told PW5, one of the investigating officers, and that PW5 had made some remark about it perhaps not being admissible or that it would be dealt with directly with PW2. PW5’s evidence was that he was not told of this record. Had he been, he would have followed it up. I cannot resolve this conflict. I do not need to. Neither did the magistrate. They cannot both be right, but in the end, it does not matter. The fact is that PW3’s evidence is that the recording was played to him for a short time: it therefore existed on the 13th November. He put the length of the conversation he heard at about 10 seconds: this was not an exact timing, just an indication. But it was short and was played by PW2 to back up his report that the appellant was the responsible party. I am in no doubt that the magistrate was right to rely on this recording as being a genuine record of the conversation. He was entitled, on the evidence, to believe PW2 and PW3 that the other party was the appellant. They knew the appellant extremely well. They were obviously able to recognize his voice on the phone instantly and without difficulty. 37.It is said, as PW2 conceded in a balanced way, that the appellant did not have to recruit PW2 to assist him in a cover-up, he could have done it himself and, given PW2’s reluctance after the earlier suggestion by the appellant that he was considering stealing from the warehouse, it was unlikely that he would have contacted PW2. In my judgment, it may well be that he could have performed the task himself; but given the nature of the conversation, as set out on the transcript, he clearly wanted to distance himself from the arrangements which needed to be made with Rebecca, which would have the effect of concealing the loss, at least for a time. I am satisfied that there is nothing in this point. 38.I reach the same conclusion on the issue raised about PW2’s evidence that on the morning after the telephone call from the appellant, he went to the warehouse to check that there was a shortage of stock, before he reported the matter to PW3. PW1 had no record of his visit, despite his evidence that he invariably recorded the names of staff who came to work at the warehouse. However, PW2 says that he went straight to the warehouse to check. He assumed PW1 had written his name in the book but he did not see it being done. There was of course no movement of goods at that time. PW1, having recorded no name, according to the record sheet exhibit D1B, said that there were no visitors. There is obviously a conflict between them but it is not one which undermines the prosecution’s case. This was not a normal visit by PW2 to work at the warehouse, it was a visit to check on apparently missing stock. The lack of a record of his name is not, in the circumstances, a matter of concern. 39.I note also the reference as to whether PW2 may have held some grudge against the appellant because the latter had been promoted over him or because the appellant had, on occasions complained about his work to PW3. I have considered whether these matters might undermine PW2: I am sure they do not. PW3’s evidence 40.Next, I turn to PW3’s evidence of the appellant’s conversation with him, in which an admission was made, according to him. This did not come immediately, not even immediately after the confrontation at which PW1 pointed him out. It is submitted that neither the magistrate nor this court could properly be sure that the alleged admission was made, or that if it was said, it was said voluntarily, or that it was true; or even that it was an admission. 41.PW3 gave a very detailed account of his dealings with the appellant on the afternoon of the 13th November. He described his initial denial, the confrontation, the continued denial and then the appellant admitting that he had removed the items in question. He did not purport to report the conversation verbatim, simply as the gist of what was said, but he asked the appellant if he could recover the items and the appellant shook his head and then asked whether, if the company fired him and never employed again, the matter could be settled. PW3 told him that no, it was impossible to settle it in this way. He urged the appellant to surrender himself to the police. The appellant seemed initially to agree and then asked for some time to make a private phone call. That was given, and the appellant then said that he had talked to a lawyer, that he did not need to go to a police station (which was true) and he then walked to his car and drove away. 42.I have reviewed this account carefully. It is cogent and compelling in form. The magistrate clearly took the same view. He was entitled to do so. There is no doubt that the gist of the exchange was as reported by PW3. 43.Was this a voluntary admission? It was suggested to PW3 that, as a senior member of staff in a position of authority, he had tried to persuade the appellant to admit. PW3 simply recounted the sequence of the conversation. He did not agree that he pressurised the appellant, or bullied him in any way, into admitting. On the contrary, the tone of his questions was friendly and moderate. 44.There is no evidence to contradict PW3 in this respect. When this matter was canvassed in strong terms in the closing submissions of Mr Khosa, who was then representing the appellant, the magistrate offered the opportunity to re-open the prosecution case and to allow the appellant to give evidence on the special issue, which was declined. 45.The magistrate was in no doubt that this was a voluntary exchange. I share that view: it is wholly consistent with the evidence. What was said amounted to an admission. The contrary cannot reasonably be argued and it can be seen, from all the other evidence, that it was a true confession to the theft which is the subject of this charge. Conclusion 46.I am in no doubt that the individual elements of the prosecution case were properly established on the evidence and that such discrepancies as emerged were explicable or had no impact on the determination of the issues. When put together, these elements became, as the magistrate described, an overwhelming case. He was right in that assessment. He gave the appellant benefit of his clear record, that is, as to his lack of propensity to offend, and drew no adverse inferences from his election not to testify. He worked with the evidence he had to determine whether the charge was proved to the requisite standard and concluded that it had been. I am sure that conclusion was correct on the evidence and the proper application of the law. The conviction cannot be faulted. The appeal is dismissed.
Ms Agnes Chan, Senior Public Prosecutor, of the Department of Justice, for the Respondent Mr James McGowan and Mr David Khosa, instructed by Messrs Chan & Chan, for the Appellant |