HKSAR v. Tai Kwok Hei

CACC000693/1997

1997 No. 693
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram: Power V.-P., Mayo J.A. and Keith J. in Court

Date of Hearing: 24 April 1998

Date of Delivery of Judgment: 24 April 1998

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J U D G M E N T

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Keith J. (giving the judgment of the Court):

Introduction

1. On 31st October 1997, the Applicant was convicted by Judge Wilson in the District Court of three charges: two of theft and one of dishonest handling. He had faced five charges in all, and had pleaded not guilty to all of them. He was sentenced to 18 months' imprisonment consecutive on each charge, amounting to 41/2 years' imprisonment in all. He now applies for leave to appeal against his convictions.

The facts

2. In the early hours of one morning last May, the Applicant was seen by police officers driving a tractor and a trailer out of a depot in Tin Shui Wai. They were driven by the Applicant to the Lok Ma Chau border crossing point, where the Applicant was asked whose trailer it was. The Applicant initially said that it was his. However, he eventually admitted that it had been stolen, and that someone had told him to drive it to China. He was cautioned, and the Applicant then said that he had been paid $30,000.00 to drive it to China, adding that this was the first time that he had done it. At his trial, the Applicant disputed the voluntariness of what he had said to the police, both before and after the caution was given, and the voluntariness of his acknowledgement of the correctness of the post-record of what he had said. However, the judge ruled the evidence admissible.

3. In fact, the tractor had been stolen in Cheung Sha Wan within the previous few hours. Its driver had been in the habit of sleeping in the cab, and he had left a number of personal effects behind, including cooking utensils and bedding. The licence plate had been removed, and the licence plate of another tractor which belonged to the Applicant had been substituted for it. In addition, the tractor bore other hallmarks of having been stolen. For example, the door lock was damaged, the ignition wiring system had been bypassed with wires enabling it to be driven without an ignition key, the clutch pedal had been removed, and the owner's printed name and address were covered by a sticker. The Applicant faced two charges in connection with this trailer: in charge (1), he was charged with stealing it, and in charge (2), he was charged with dishonestly handling it. He was convicted on charge (1).

4. The trailer had been stolen in Tin Shui Wai a few days earlier. It had been repainted since then. The Applicant faced one charge in connection with this trailer: in charge (3), he was charged with dishonestly handling it. He was convicted on that charge.

5. When the tractor had been stolen in Cheung Sha Wan, a trailer which accompanied it had also been stolen. That was later found at the same depot at which the Applicant had been seen. The Applicant faced two charges in connection with this trailer: in charge (4), he was charged with stealing it, and in charge (5), he was charged with dishonestly handling it. He was convicted on charge (4).

6. The Applicant's evidence was summarised by the judge in his Reasons for Verdict as follows:

"[He] was a container truck operator. When business took a downturn a friend, Do Man, mentioned money could be made smuggling second-hand Japanese tractors to China. He protested he would never consider anything illegal, but Do Man persuaded him that smuggling was not akin to theft. If he was caught, he would only get a fine which will be paid by the 'boss' anyway. Do Man introduced Ah Ming who introduced 'headmaster'. He agreed to do one round trip driving a smuggled Japanese import for $30,000.00. Headmaster drove him to the sand depot in the middle of a dark night and indicated the tractor he was to drive with the trailer behind. He thought the elaborate wiring-up of the ignition looked odd but Ah Ming explained that unfortunately Japanese imports do not come with keys. He did not notice in the dark the prise marks forcing the door; nor the personal effects of the driver scattered about the cab; nor that the clutch pedal had apparently been removed and was lying on the floor of the cab. He was merely anxious to complete his smuggling mission and it never crossed his mind the tractor might be stolen."

The challenge to the convictions

7. Mr. William Allan for the Applicant attacks each of the three convictions. We propose to deal with each in turn:

(i) Charge (1). It is said that, on the primary facts found by the judge, it was not open to the judge to find that the Applicant had stolen the tractor. The evidence at its highest could only justify a conviction for dishonest handling. We do not agree. It was open to the judge to infer that the Applicant had stolen the tractor himself in view of his possession of it so recently after it had been stolen. In any event, there is the crucial evidence that the tractor's licence plate had been removed, and the licence plate of another tractor which belonged to the Applicant had been substituted for it. Thus, even if the Applicant had not appropriated the tractor when it was originally stolen in Cheung Sha Wan, that evidence pointed overwhelmingly to the Applicant having been at the very least a party to its subsequent appropriation by deciding then to retain it with the intention of permanently depriving the owner of it.

(ii) Charge (3). The judge relied in part on the doctrine of recent possession. Mr. Allan points out that the nature of the charge of dishonest handling which the Applicant faced was not one of receiving the trailer, but one of undertaking or assisting in its retention, removal, disposal or realisation. In R. v. Sloggett (1972) 55 Cr. App. R. 532, it was said at p.537 that the doctrine of recent possession was irrelevant to this form of dishonest handling. That proposition was referred to without disapproval by Court of Appeal in Hong Kong in R. v. Wong Wai Hung (CA 244/96). However, subsequent to Sloggett, it was held in R. v. Ball [1983] 1 W.L.R. 801 that the doctrine of recent possession did indeed apply to a case of dishonest handling under the second limb of the English equivalent of section 24(1) of the Theft Ordinance (Cap. 210). Indeed, the statement in Sloggett was expressly disapproved.

8. We do not think that we need to resolve the conflict in the authorities (which should be regarded as leaving the issue undecided in Hong Kong), because we do not think that the error (if error it was) should result in the quashing of the Applicant's conviction. This would plainly be a case for the application of the proviso, because the judge would inevitably have convicted the Applicant on charge (3) without the doctrine of recent possession, having regard to (a) the Applicant's confession that he had known that the tractor had been stolen, and (b) what the judge described as "the involved and purposeful nature of bringing the two stolen vehicles together from different places".

(iii) Charge (4). Mr. Allan argues that there was no basis on which the judge could infer that the trailer had been stolen by the Applicant. We disagree. Once the judge had found that the tractor had been stolen by the Applicant, it was open to the judge to find that the trailer (which had been stolen in Cheung Sha Wan along with the tractor) had also been stolen by the Applicant.

The other grounds of appeal

9. There are three other grounds of appeal relied upon. First, it is said that a procedural irregularity occurred in the course of the trial when the judge amended the word "tractor" in charges (3) and (4) to "trailer" without the Applicant being re-arraigned. We do not think that this constituted a procedural irregularity at all. In R. v. Radley (1974) 58 Cr. App. R. 394, it was said at p.404 that

"where amendments are very slight and cannot really be regarded as in any way introducing a new element into the trial a second arraignment is not required."

We agree. The amendments made by the judge did not introduce a new element into the trial at all: the amendments simply corrected two factual errors in the charge sheet.

10. Secondly, Mr. Allan contends that the judge was wrong to admit the confessions and the post-record of them into evidence. It is said that the judge misinterpreted some of the evidence, that he failed to evaluate the evidence properly, that he did not give sufficient weight to discrepancies in the police evidence, and that he failed to appreciate the unlikelihood of the Applicant actually confessing to knowledge that the tractor had been stolen. We hope that we do not do any injustice to Mr. Allan's argument if we merely say that we reject those complaints.

11. Thirdly, the following ground of appeal appears in the Perfected Grounds of Appeal:

"The Trial Judge gave reasons [for admitting the confessions into evidence] in more detail than he should and in particular made adverse comments on the demeanour and credibility of the [Applicant] to the extent that when the [Applicant] had to decide whether to give evidence on the general issue he was put into a hopeless position."

Having looked at the transcript of the judge's ruling, we do not think that the judge made particularly adverse comments on the Applicant's demeanour and credibility. But in any event, what the judge said did not in fact prevent the Applicant from making an informed decision as to whether or not to give evidence, because he elected to give evidence on the general issue.

Conclusion

12. For these reasons, we have not discerned any basis on which the Applicant's conviction on any of the three charges on which he was convicted should be quashed, and accordingly this application for leave to appeal against those convictions must be dismissed.

Representation:

Mr. William Allan, instructed by Messrs. Chung, Leung & Co., for the Applicant.

Mr. Frank Veltro, Senior Government Counsel, for the Respondent.