Shishir Tarachand Kothari v. The Queen
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CACC000795/1979
----------------- Coram: Leonard, J.A., Addison & Garcia, JJ. Date of Judgment: 13 June 1980 ----------------- JUDGMENT ----------------- Leonard, J.A. : 1. In the court below the appellant faced five charges. On the first charge he was acquitted of stealing on 5th of May 1978 certain diamonds described in particulars by their exact weight. On the second of stealing other precious stones, he was found to have no case to answer. On the third he was convicted of making a false report to a police officer contrary to section 64(a) of the Police Force Ordinance. On the fourth charge he was also convicted. That also was a charge of theft. 2. The particulars are of importance and I set them out in full.
3. It will be noted that each of the five packets is described as Diamond Brilliant or Diamond Brilliant Melee, the exact weight of which is given to two decimal points of a carat. The stones are alleged to be the property of Brilliant Almaz Co. Ltd. (as were the stones particularised in the first charge) and to be of the approximate value of $265,496. 4. With the fifth charge we need not concern ourselves. It was of false accounting and of it the appellant was also found not guilty. 5. The trial was a lengthy and complicated one spread over 23 days from the 25th of June 1979 to the 3rd August 1979, and the trial judge was faced with the necessity of evaluating the evidence of 37 witnesses called by the Crown, and that of the appellant and two witnesses called by him. 6. In his reasons for verdict the trial judge sets the scene with brief synopses of the Crown case and that for the appellant in the following terms :
7. It was common case that the burglary was either faked by the appellant or was, to put it vulgarly, an "inside job" made to look like an "outside job". 8. The safe in which the diamonds, the property of Brilliant Almaz Co. Ltd., were or should have been kept, was opened by someone with keys to it and who knew the combination of it. There was evidence that only two persons had keys and knew the combination. There was some evidence that others might have had keys made but none that those others knew the combination. The de facto owner and managing director of Brilliant Almaz Ltd., a Mr. Niwas, was one of those two persons and the appellant the other. Mr. Niwas had financial interests other than dealing in precious stones and had no expertise or skill in dealing in diamonds and it is apparent that the appellant who was employed as manager because of that skill had, subject to the overall control of Mr. Niwas, virtually a free hand in deciding what diamonds should be bought and sold on behalf of Brilliant and at what prices. 9. On the afternoon of Saturday, 3rd of June 1978 the office was closed as normal for the weekend and the appellant and a saleman, Mr. Yuen, were the last to leave. The burglar alarm was set and all doors were locked. Although the safe door could have been left unlocked there is no reason to suppose that it was. There is no reason to suppose that Mr. Niwas visited the office that weekend. He gave evidence in the course of which he denied so visiting it and that evidence was accepted by the trial judge. There was no evidence that he was in the building or in its vicinity. 10. The appellant was seen in the building by a caretaker of Melbourne Plaza after 2.00 p.m. It was the evidence of the caretaker that he saw the appellant near the entrance to the service lift as if about to use it. He said :
11. It is noteworthy that there is a concealed T.V. with eleven T.V. screens showing inter alia the entrances to the building, to four of the public lifts but not showing entrances to two public lifts and not showing the goods lift. The T.V. cameras record on to tape. 12. The appellant sought to account for his presence in the building that afternoon by telling the police that he had brought two Canadians to the office so that they might inspect diamonds. 13. We do not propose to deal at length with the evidence as to these Canadians. Suffice it to say that the trial judge would in our view have been amply justified in inferring that they did not exist. He did not so decide. His comment concerning them read :
14. It is to be noted at this stage that the appellant had interests other than the management of Brilliant. He was a shareholder and director of Ko Gems Ltd. and Interdiamond Ltd. At the time of the burglary Ko Gems Ltd. was inactive. Interdiamond Ltd. had a capital of $2,500,000. In addition he was a partner in a firm called Diamond Corporation, having a 1/3rd interest in that firm. The other partners in which were a Mr. Jaaveri who apparently left the Colony some time after the 9th of June 1978 owing substantial sums to creditors and a Mr. Choksi. 15. Mr. Choksi gave evidence of a sale made by him to Brilliant through the appellant in April 1978 with which we need not now concern ourselves. In cross-examination he gave evidence as to the problems of identification of diamonds and particularly melee to which I shall have to refer later. Unfortunately, he was not asked any question either in the examination or in cross-examination as to the status of Diamond Corporation. 16. I mention the appellant's interest in Interdiamond Ltd. as it is of some relevance when one comes to consider the appellant's motive for staging the burglary. It is common case that in the months which preceded the 3rd of June he had lost in gold transactions sums which on any normal criterion would be regarded as catastrophic. He used Interdiamond Ltd. Not only as a vehicle for the sale and purchase of diamonds (independently of Brilliant) but also as providing an account on which he could draw cheques. He used its account at an early stage of his gold dealings to discharge his indebtedness on losses. 17. In this connection a topic referred to by the trial judge as "the Majeed loan" is also of interest as it indicates an anxiety on the part of the appellant to conceal the importance to him of these losses. The subject is most readily approached with reference to certain accounts (Exh. D. 7) produced as the accounts of Interdiamond Ltd. In these accounts (at page 1059 of the transcript) there appear the following two entries. They read :
The amount stated is $1.5 million.
18. There was evidence to the effect that a letter dated the 17th of February 1978 on the letter head of Interdiamond Ltd. signed by the appellant and reading laconically :
was typed not on 17th of February 1978 but after the 5th of June 1978, the typist in question having joined Brilliant Almaz Ltd. on 1st June 1978. 19. The evidence of that typist was contradicted in cross-examination by her predecessor. The predecessor claimed that she had typed it but in April or May rather than on the date in February that it bore. 20. Unfortunately, Exh. D.7 did not see the light of day insofar as the police were concerned until the 15th of February 1979. The police officer by whom they were seized on that day asked the appellant where they come from and was told "these are a new set I need for accounting and to carry on my business". 21. The subject of the Majeed loan is not one which goes to prove that the appellant faked the burglary but the trial judge is to be pardoned if he regards it as casting a somewhat strobe-like light on the credibility of the appellant. 22. One factor indicating careful planning on the part of the appellant is that very shortly before the burglary the appellant caused the amount payable under the policy by which Brilliant's interest in its stock was covered to be doubled. We cannot regard this as something done altruistically or solely for the benefit of Brilliant. Brilliant might be the party to benefit financially by it but the appellant might gain indirectly as any astute employee might if he had been so far-sighted as to double insurance cover less than a week before a burglary. 23. The trial judge has been accused of piling suspicion on suspicion contrary to CHAN Yuet-kwan v. The Queen(1). We do not think he did so. His ratio is to be found at page 469 of his judgment where he said :
This was the approach which the Full Court suggested was the correct approach in YIM Chor-man & Another v. The Queen(2) where Huggins, J. said :
24. The appellant was then correctly found to be guilty of staging the burglary. This was not the subject of the charges against him. The principal charge remaining, the fourth charge, was of stealing specific diamonds. The question which agitates us as to this is "Was it established that he did steal those specific diamonds?" It is clear that the diamonds he is charged with stealing were those he handed to S.Y. Lee in satisfaction of his indebtedness on gold transactions on the 9th of June 1978. Much had been said in evidence as to the difficulty of identifying small diamonds dealt with in bulk. Mr. Choksi, having modestly disclaimed that he was one of the biggest diamond dealers in the world, when asked if there are "problems of identification with this type of diamond?" said :
And again later he was asked :
He also indicated that there were variations in the price of melee at about this time. At page 312 he was asked :
His answer as recorded is somewhat difficult to understand. It reads :
25. Mr. LAW Hung-cheuk who was also 'accused' of being the biggest diamond merchant in Asia but disclaimed that honour, was asked:
At page 305 he was asked :
This again is a most difficult answer to understand. It does indicate to us that this witness considered that there was grave risk of misidentification or fraud inherent in the handling of quantities of Indian melee. We may say that none of us can profess the slightest skill as to the appearance or value of diamonds. We have had the exhibits of the diamonds in question produced to us and to our untutored eyes while one particular parcel contained stones bigger than the others the others seemed identical when compared. This, of course, is a far cry from finding that it would be impossible for an expert to recognise differences. 26. S.Y. Lee, admittedly an unwise investor or counsellor as far as dealings in gold are concerned, says he accepted the appellant's statement that the diamonds handed to him on 9th June 1978 were worth $600,000. It is, however, to the evidence of Mr. WU Pak-hoi that we must look firstly in considering whether or not the identity of these diamonds has been established. He was the expert on whom the Crown clearly relied when drafting the charge in question for the weights given by him and the valuation given by him is that quoted in the charge. 27. Secondly, we must look to the evidence of Mr. Javeri Senior who claimed to identify the diamonds given to S.Y. Lee as those which he passed to Brilliant on consignment in the cases of Lots 1, 2, 3 and 4 or sold to Diamond Corporation in the case of Lot 5 and I think their respective evidence would best be examined by means of a table.
28. There is some similarity of weight except for Lots 3 and 4. These total 302.16 carats and it was suggested by Mr. Javeri that they come from three lots weighing respectively 31.35 carats, 36.06 carats and 402.72 carats. The value of these lots, according to Mr. Wu, were $400 or $330 per carat. The values, according to Mr. Javeri, as ascertained from the consignment notes for the goods sold by him was $715 in one case and in the other at least $545 and at most $1,635. 29. I consider that particular attention must be paid to value when considering the validity of any identification of tiny stones such as these for they have to the non-expert only two peculiarities : glitter and value. To an expert value must equally be of importance. The dangers inherent in the identification are obvious. Even if one accepts weight alone as the criterion there are substantial differences in each lot except Lot 5. Even Lot 5 does not correspond absolutely for Lot 5, according to Mr. Wu, weighed either 69.64 carats or 69.17 carats and according to the consignment note it weighed 69.66 carats. On this lot it is to be noted that the value per carat to Mr. Wu was $1,400 whereas the value to Mr. Javeri according to the sale note was $1,100. Assuming in any event that Mr. Javeri Senior was correct in his identification of Lot 5 the Crown is faced with a further difficulty as to that lot. The papers show an outright sale of it to Diamond Corporation. No sale or transfer to Brilliant is shown by the Crown and the Crown have therefore failed to prove that Brilliant had any property in that lot. 30. The identification turns on the evidence of Mr. Javeri Senior and the trial judge accepted him as an honest and truthful witness. Unfortunately, that is not an end of the matter. The trial judge to some extent regarded the evidence of Mr. Javeri's son as of assistance. There were differences between them to which he did not allude. 31. Commenting on Mr. Javeri Senior's evidence he said :
We do not, of course, know how much reliance the trial judge may have placed on his assumption that Mr. Javeri had said that Lot 5 was wrapped in paper which he recognised as his own. Mr. Javeri said nothing of the kind. What he said was that he recognised the paper not as his own but as blue Indian paper. We have no reason to suppose that such Indian paper is not common to the trade when dealing with Indian melee. If the learned trial judge placed any importance on this purported recognition of the paper he was clearly wrong. It is not in itself perhaps a vital factor but it taken with the differences between the evidence of Mr. Javeri Senior and his son which were apparently unappreciated by the trial judge and the differences in weight and valuation as revealed by the table I have given we have come to the conclusion that the Crown has failed to prove beyond reasonable doubt that the diamonds handed by the appellant to S.Y. Lee were identical with diamonds belonging to Brilliant as described in the consignment notes produced and commented upon by Mr. Javeri Senior. The established fact that the appellant faked the burglary cannot help on this question of identification for he had access to other melee. In those circumstances not without considerable misgivings we have come to the conclusion that the appellant must be acquitted on the fourth charge. It was perhaps unfortunate that he was not charged with attempted fraud on the insurance company. 32. I turn then to the third charge. In that charge the appellant was convicted of making a false report to Chief Inspector O'Brien contrary to section 64(a) of the Police Force Ordinance. Undoubtedly he did tell Chief Inspector O'Brien in the course of the investigation that the premises had been burgled. There was evidence that there had been a burglary albeit faked to look like an outside job and being an inside job. The question then arising is whether the appellant should have been charged under section 64(a) or under section 64(b). The section reads :
Clearly the section recognises the existence of differences between the making of a false report of the commission of an offence to a police officer and the misleading of a police officer. The intent of the appellant in making the false statement that he undoubtedly did make to Mr. O'Brien was to mislead him. We therefore do not think that he was rightly charged under subsection (a) of the section. The 'or' in the section is clearly disjunctive and the Legislature clearly had in mind two different matters : the first being the making of a false report of the commission of an offence and the second being misleading a police officer by giving false information. The intent to mislead the police must I think be common to both. The position is that the offence of burglary was committed. We can have no doubt but that when the appellant entered the premises on that Saturday afternoon he did so as a trespasser. He did so with the intention not to act as the manager of Brilliant Almaz Ltd. but rather to act as a thief of its property. Accordingly, he did commit burglary and accordingly the report made to Mr. O'Brien was not a false report of the commission of an offence but rather a false report that an offence had been committed by somebody other than him. We do not think that this comes within subsection (a) of the section but consider that it comes within subsection (b). 33. The appellant was charged with making this false report to Mr. O'Brien himself. It is noteworthy that the trial judge finds that he "caused it to be made". In using this phrase he must have been referring to the act of the saleman Yuen who rang up the police on the instructions of the appellant on that Monday morning. That report (the report made by Yuen) was not made to Mr. O'Brien so that the trial judge's mind appears to have been on a report other than that relied on by the prosecution and specified in the charge. For the report made to Mr. O'Brien came considerably later. With the same reluctance of which I have spoken earlier we also consider that this conviction cannot stand. We treat this application for leave to appeal as the appeal. The convictions are quashed and the appellant is accordingly discharged of these offences. Representation: Mr. A. Hidden, Q.C., and Mr. R. Barretto (Hampton, Winter & Glynn) for appellant Mr. F. Stock and Mr. N. Adams, Crown Counsel for Crown/respondent. (1) Crim. App. No. 212 of 1973, unreported. (2) (1975) H.K.L.R. 546. |