HKSAR v. Chan Ho Singh Gursewak

DCCC 441/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 441 OF 2013

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REASONS FOR VERDICT

1.Charge

The defendants are jointly charged with two offences. The first charge is of Theft contrary to section 9 and the second charge was that of Fraud contrary to section 16A respectively of the Theft Ordinance Cap 210.

2.I was satisfied on the evidence before me that the defendants had voluntarily absented themselves from their trial and proceeded with the trial in their absence.  

3.Plea of Not Guilty entered

At the previous court hearings the defendants had entered pleas of not guilty. I proceeded with the trial on the basis that the defendants had pleaded not guilty.

4.Overview

This case is about the defendants stealing a light goods vehicle (LGV) and its contents and selling the LGV to an innocent bona fide purchaser for value by dishonestly and falsely representing that the 2^nd defendant (D2) was the owner of the vehicle. D1 was an employee of the owner of the LGV.

5.Prior to the sale of the LGV, D2 fraudulently registered himself as owner of the vehicle with the Hong Kong Transport Department (Transport Department).  On the day of sale the defendants went to the office of the purchaser to complete all the necessary documents for sale of the stolen LGV.  The purchaser paid D2 a sum of HK$175,000 by cheque for the LGV.  D2 had cashed the cheque.  A CCTV video recording captured D1 and D2 at the offices of the purchaser of the LGV when the sale was being made.

6.Proof

I have borne in mind that it is for the prosecution to prove beyond all reasonable doubt the elements in the two charges against the defendants. No onus whatsoever lies on the defendants.

7.Issues

The principal issues in this case were if the defendants had:-

(1) stolen the LGV and its contents and

(2) if D2 had dishonestly and falsely represented to the purchaser of the LGV that D2 was the registered owner of the LGV and that he agreed to sell the LGV at $175,000.

8.A resolution of these issues turns principally on the credibility of the witnesses and the evidence adduced.

9.Witnesses

The prosecution called ten witnesses (PW’s 1-6 and 8-12).

10.I have taken into account that the evidence on each charge must be considered separately from the other.  However in my verdict I have at times referred to the evidence or analysis together so as not to duplicate myself but have always kept in mind that each charge must be proved on the evidence individually. 

11.The prosecution evidence

At all material times PW1 Mr Wong Tak-kee was the owner of an LGV bearing registration number NF5857. It was used in connection with his business. PW1 operated a recycled goods yard in Yuen Long, New Territories. D1 was PW1’s employee working as a casual driver. PW1 was disqualified from driving and thus employed D1 to drive for him from March 2012. D1 was only permitted to drive the LGV in the company of PW1. D1 did not have the keys of the LGV.

12.Ownership of the LGV

PW1 purchased this brand new LGV in 2008. He paid $292,000. He was the registered owner of the LGV until 13 March 2012 when he transferred the registered ownership to his sister Ms Wong Yau Lan (PW12). The reason for the transfer to his sister was because he was disqualified from driving. He transferred the ownership to his sister in name only but remained the owner. No money exchanged hands. He explained that the transfer was made to his sister as he was unable to obtain insurance for the LGV and if he did later obtain insurance even after his period of disqualification had finished his insurance premium would be much higher so it was more beneficial to keep the LGV in his sister’s name.

13.After the transfer of ownership to his sister the LGV remained in PW1’s possession at all times.  It was used by him in connection with his business and was parked at his yard. 

14.Transfer of ownership from PW1 to his sister

PW1 instructed a vehicle company to act as his agent in transferring the ownership of the LGV to his sister. The vehicle company prepared all the transfer documents. He went to the company together with his sister and D1. Thereafter PW1 and his sister did not attend the transport department for the formalities of transfer.

15.After the vehicle agency had successfully transferred the ownership to his sister’s name PW1 went to collect the documents.  Upon receipt of the documents he did not look at them, he never gave the Vehicle Registration Document (VRD) to his sister to sign.  He left all the documents including the unsigned VRD in the LGV in a folder on the dashboard near the windscreen.

16.Approximately one week later on 21 March 2012, PW1 received a call on his mobile phone from a man claiming to be a police officer.  The caller told PW1 that someone had picked up his VRD of his LGV and had handed it into to the Happy Valley Police Station.  PW1 immediately went to check the LGV and found that the VRD was missing.  PW1 asked the called if he could collect the VRD at a closer police station, the caller agreed but said the closest station would be the Yau Ma Tei Police Station (YMTPS). 

17.The following morning PW1 left his yard (also his residence) to head off to YMTPS.  Before he left the yard he locked his LGV that was in the yard and the yards main gate.  At 9 am PW1 arrived at the YMTPS.  When he spoke to police officers at the YMTPS they told him they did not have such documents or information.  However while PW1 was there he received a phone call to say that the caller (identifying himself as a police officer) would be at the YMTPS soon and to please wait there for him as he was on his way.  After waiting for sometime PW1 called the caller by calling the number displayed on his phone when the caller called him to ask for the caller’s whereabouts.  The caller told him that he was on his way.  PW1 thus continued to wait at the police station.  He stayed there waiting for much of the morning but the caller did not arrive at YMTPS.  Sometime later that morning a police officer at the YMTPS told PW1 that there was no record of any VRD found or handed into the Happy Valley police station.  PW1 again called the caller but was unable to get through, as the line was dead.  Feeling suspicious about the whole matter and suspecting the caller was not a police officer, PW1 then left the police station and returned to his yard.

18.When PW1 returned to his yard at about 2 pm he saw the yard door was broken open and his LGV was missing.  The metal chain and the padlock that was locking the door were gone.  PW1 immediately made a report to the police that someone had set him up and stolen his LGV. 

19.In the meantime D1 had telephoned PW1 telling him he would be late as “he had yet to finish dealing with family matters.”  D1 arrived two hours late for work at about 3 pm.  When D1 arrived PW1 told D1 that his vehicle had been stolen.  D1 replied “oh your vehicle has been stolen what should be done?  Then today I don’t feel right to receive wages for coming into work today lets forget it.” 

20.Shortly thereafter a police officer, PW6 arrived at the yard.  He met PW1 and D1 there. 

21.D1 left the yard at about 4 pm that day. Thereafter PW1 did not see D1 again.  He did not need the services of D1 any longer, as there was no vehicle for him to drive.  He also suspected D1 was involved in the theft of his vehicle. 

22.The police located PW1’s LGV the following day on 23 March.  PW1 therefore went to examine the LGV.  He recognised it as his LGV.  However missing from the vehicle was the vehicle video recorder, a camera, an electronic scale, a bag of tools and cash of about $200 in coins.

23.PW1 came to know that PW2 had purchased the LGV for value.  Sometime in January 2013 PW1and PW2 resolved the issue of ownership.  PW1 and PW2 agreed that ownership would revert to PW1 upon payment by PW1 to PW2 in the sum of $98,000.  This was completed.  The LGV has been in the possession of PW1 until today.  The LGV however remains unusable, as the registered owner is D2.  PW1 stated that the Transport Department would not transfer the LGV back to his or his sister’s name until a court order was made. 

24.The sister PW12 confirmed that she was the registered owner of the LGV but in name only.  The real owner was her brother PW1.  Her evidence supported PW1’s evidence.  She said that she had never signed the VRD and the signature on the VRD was not hers.  She also did not know nor had she heard of a company by the name of Wing Tat Transportation company which was stamped on the VRD. 

25.Both PW1 and PW12 firmly stated that they never sold nor transferred the ownership of the LGV to anyone.  All along the LGV remained the property belonging to PW1. 

26.The sale of the LGV by D1 and D2 to the purchaser PW2

PW3 Mr Ko was a car salesman employed by a company called Lee Tung Motor Company Limited. He bought and sold vehicles. On 21 March 2012 PW3 received a phone call from D1 (whom he knew) telling him that he had a 5.5 ton LGV for sale which belonged to his boss. D1 was selling the LGV at $210,000. PW3 asked his own boss if he wanted to purchase the vehicle however his boss declined the offer. PW3 therefore approached a fellow car salesman PW2 and asked if he had an interest to purchase the LGV. PW2 replied that he was interested but wanted to see and test-drive the LGV first.

27.PW3 therefore arranged to meet D1 the following day, 22 March at the West Railway Station of Kam Sheung Road.  PW2 and PW3 went there together whilst D1 and D2 arrived at the station in the LGV.  D1 was driving the LGV.  PW2 then spoke to D1 and took the LGV for a test drive. After that he decided to purchase the LGV after negotiating the price of $175,000 with D1 and D2.  PW2, PW3, D1 and D2 then went to the offices of PW2 to complete the documentary formalities for the purchase of the LGV and for PW2 to pay D2.

28.PW2 was the owner of a company called Wang Chun Motor Company Limited.  His business was purchasing and selling vehicles.  He confirmed he received a phone call from his fellow trader PW3 on 21 March asking if he wished to purchase a vehicle.  He then arranged with PW3 to meet the seller and to see the vehicle the following day.

29.On 22 March at about 10 am he went to the Kam Sheung Station and met with D1 and D2.  PW3 was also present.  He was shown the original VRD.  He test-drove the LGV with D2 in the vehicle. Thereafter he agreed upon a purchase price for the LGV having negotiated and spoken to both D1 and D2. 

30.After the test drive the parties (PW2, PW3, D1 and D2) went back to PW2’s office located at Ta Shek Wu Tsuen, Fan Kam Road.  At the office PW2 and D2 compiled all documents necessary for the transfer of ownership from D2 to PW2.  A photocopy of D2’s ID card was made.  PW2 compared the name on the ID card with the registered owner’s name on the VRD and was satisfied that they were the same.  PW2 and D2 signed a contract for sale and purchase.

31.D2 agreed to sell the LGV to PW2 for $175,000.  PW2 issued a cheque in favour of D2 (exhibit P7) in the amount of $175,000 as consideration for the vehicle.  The cheque was a bearer cheque. 

32.The presence of D1 and D2 in PW2’s office during the documentary formalities for the sale and purchase of the LGV were recorded on CCTV video in his office.  PW2 gave a copy of the video recording to PW6 the police officer. 

33.On the following day 23 March PW2 went to the transport department to transfer the ownership of the LGV.  However the transfer of ownership was unable to be completed.  PW2 became aware that the LGV he had purchased was a stolen vehicle. 

34.Identification of D1 and D2

PW2 identified D2 at an identity parade as the person who sold him the LGV. The CCTV video recording taken in PW2’s office on 22 March was shown to PW1, PW2, PW3 and PW6. They all recognised and identified the defendants. PW1 identified D1 as his employee and as the person who was at the yard when PW6 went there on 22 March. PW2 and PW3 identified D1 and D2 as the persons who were selling the LGV and who were at PW2’s office completing the documents. (PW2 and PW3 also identified themselves in the video recording.) PW6 the police officer identified D1 as :-

(i) the person he saw at PW1’s yard on 22 March and of whom he took a witness statement from,

(ii) a suspect arrested in connection for the present case and from whom he took a record of interview.

PW6 identified D2 as :-

(i) the suspect he arrested in connection with the present case and

(ii) (ii) the person he took a record of interview from.

35.Seizure of exhibits produced

PW6 was the police officer that dealt with a large part of the investigation of the present case. He was the officer who had seized exhibits and took photographs. He took a copy of the CCTV recording at PW2’s office. I was satisfied that he had properly and fairly seized all exhibits adduced as well as kept the exhibits in a safe location without any break in the chain of evidence. He had taken the fingerprints of D1 and D2.

36.On 19 May 2012 PW6 went to Tuen Mun and arrested D1.  He recognised D1 as the employee of PW1 whom he saw at the yard with PW1 and whom he had also taken a witness statement from on 22 March 2012.  He took a ROI from D1 (P4A) on 19 May suspecting him of theft of the LGV and deception. Under caution D1 remained silent. 

37.Arrest of D2 by PW5

Whilst on duty on 26 March 2012 PW5 had set up a road block with his colleagues in Tuen Mun Castle Peak outside Choi Fai Garden. At about 2 am he stopped a taxi. In the taxi with the driver was D2. He had asked for D2’s ID card and radioed back to the console to make a check on D2. He was informed that D2 was a wanted person in connection with an offence of taking a conveyance without authority that happened at Tin Shui Wai. PW5 therefore arrested and cautioned him. D2 replied, “it has nothing to do with me.” Thereafter PW5 took D2 to Tuen Mun Police station where he was detained.

38.PW6 then took a ROI from D2 (P3A) about the theft of and the fraudulent sale of the LGV.  Under caution D2 said, “I do not want to say anything because I completely have no knowledge about this case.  I do not want to answer any questions.”  On the same day PW6 also took D2’s fingerprints. 

39.PW2’s cheque issued to D2

The cheque issued by PW2 to D2 was exhibited as P7. As evidenced by the cheque it was issued by PW2’s company and was made payable to D2 (it bore D2’s name.) PW4 Ms Fung is an employee of the DBS bank. She stated that a person with D2’s name and identity card number cashed the cheque. This was observed from the writing at the back of the cheque. She said it was the practice of the bank that the teller who gave the person the cash must confirmed that the person cashing the cheque had the same name as that on the cheque and would have verified the name and identity with the persons ID card.

40.Transfer of registered owner from PW12 to D2’s name

PW11 is a clerical officer at the Transport Department. Her duties were to store application forms for the vehicle licenses at the licensing office. She searched out the original application for the transfer of ownership from PW12 to D2’s name. These were exhibited as P8, P9 and P10. She handed them to the police.

41.PW12 said the signature on the transfer form and VRD were not hers.  The transfer of ownership of the LGV was made on 21 March 2012.  The transfer documents showed the name of D2 as well as his ID card which was the same as that written on the back of the cheque issued by PW2’s company.  It was the same ID card number recorded by the arresting officer PW5 at the time of his arrest in his police notebook.  D2 therefore fraudulently became the registered owner of the LGV as revealed in the VRD on 21 March. 

42.Finger print evidence

On 23 March PW8 a police officer from the ID Bureau of the Hong Kong police force went to DD14 Lot 709B, Kam Tsin Wong Chuk Yuen Sheung Tsuen where PW1’s stolen LGV was located. He lifted fingerprints from the vehicle. He used the finger print adhesive tape and then stuck the adhesive tape onto finger print slides. He referenced the fingerprints FPN (N) 2384/12 (A-F). He then took the fingerprints back to the Yuen Long police station and placed them in a locked box. I was satisfied that there were no flaws in the procedure used to lift the fingerprints and the keeping of the fingerprints thereafter.

43.PW9 was also a police office attached to the ID Bureau of the HK Police Force.  I was satisfied upon his qualifications and experience that he was an expert in identifying fingerprints.  I gave full weight to his opinion that the fingerprints found on the LGV were that of D1 and D2’s.  He concluded that it was D2’s 9^th left ring finger (the one closest to the baby finger) fingerprint on the passenger door of the LGV. Another two fingerprints found on the driver’s door were that of D1’s right index and middle finger. 

44.Analysis

The main issue is whether the two defendants stole the LGV and the contents contained therein and whether they committed a fraud upon PW2 the purchaser of the LGV.

45.Having carefully observed, heard and considered the prosecution witnesses evidence I found them all to be honest and reliable witnesses.

46.Who was the owner of the LGV on 22 March 2012

At the time of sale of the LGV to PW2 by D2, D2 was the registered owner of the LGV. PW1 and PW12 never sold nor transferred the ownership of the LGV to D2. The signature of PW12 as the registered owner was left blank on VRD. She did not sign it. I was satisfied that someone had forged her signature on the VRD (P9) as well as her signature on the transfer of ownership document (P8) so that the transfer could be made to D2.

47.I was satisfied that although D2 was the registered owner on the VRD he was not the owner of the LGV as he had received the ownership fraudulently. 

48.I was satisfied that the LGV belonged to PW1 however the legal owner was PW12 as evidenced by the VRD.  Despite the registration being in PW12 name, PW1 had not relinquished his ownership to PW12.  PW12 confirmed that she was holding it on trust for PW1.  She confirmed if the LGV was sold all proceeds of sale would go to PW1.  The facts show that even after the transfer of ownership from PW1’s name to PW12’s name the LGV was still kept at the yard and used solely by PW1. 

49.As D2 was not the owner of the LGV and it was a stolen LGV D2 had dishonestly and fraudulently represented to PW2, the buyer of the LGV that he was the owner of the LGV.  He had agreed to sell a vehicle to PW2 that was not owned by him for a sum of $175,000.  D2 cashed the cheque PW2 made in payment of the LGV. 

50.D1 and D2 were indisputably the two who were present at PW2’s office on 22 March.  They were captured on CCTV video recording in PW2’s office.  They were identified by PW2, PW3 as the persons selling the LGV.  PW6 identified D1 and D2.  PW1 identified D1.  D1 had contacted PW3 on the day the LGV was stolen that he had the vehicle for sale. The very next day D1 and D2 took the car for sale to PW2.  Much of the negotiation of the sale of the LGV was conducted with D1 but eventually D2 agreed the price.  D1 had driven the vehicle to the station.  D2 was a passenger.  D1’s fingerprints were found on the driver’s door.  D2’s fingerprints were found on the passenger door. 

51.Findings

This was a well-planned theft and sale of PW1’s LGV. PW1 had been deceived into going to YMTPS in the morning of 21 March 2012 as he was told someone had found the LGV’s VRD. During his time at the police station PW1 was delayed by the caller saying the VRD would be delivered soon. I was satisfied that during this time the LGV was being stolen from PW1’s yard at Yuen Long. By the time PW1 realised this was a hoax and returned to his yard the LGV was gone.

52.On the same day that is 21 March, that the LGV was stolen :-

(i) the LGV was transferred to D2’s name,

(ii) D1 had called PW3 telling him he had the LGV for sale.

53.On the following day 22 March the LGV was sold to PW2 and D2 cashed the cheque in the amount of $175,000. 

54.Both defendants were inextricably involved with the stolen LGV on the day it went missing and the day after when it was eventually sold by them. 

55.I drew the irresistible inference that D1 knew that there was the unsigned VRD of the LGV in the vehicle and he played a main part in hatching the plan to steal the vehicle.  D1 had knowledge that PW1 had transferred the LGV to PW12 as he had gone to the motor vehicle agent with PW1 and his sister for the processing of transfer of ownership.  He drove the LGV and at the material times, the unsigned VRD in PW12’s name was openly placed near the windscreen on the dashboard of LGV.  D1’s apparent sympathetic reply to PW1 that his car was lost was a facade that he knew nothing about the stolen car.  That was an absolute lie.

56.Conclusion

The evidence in this case against D1 and D2 was overwhelming. On all the evidence before me I was satisfied that D1 and D2 stole the LGV and its contents and also fraudulently sold the LGV to PW2. I was satisfied beyond all reasonable doubt that the defendants are guilty of both charges. The defendants are convicted of charges 1 and 2 accordingly.

57.Trial proceeding in the defendants absence

The defendants were released on bail. Part of their conditions of bail was to reside at the address as given and to report to the police. D1 was to report to Castle Peak Police Station every Tuesday and Saturday between 9 pm and midnight. D2 was to report to Tuen Mun Police Station between 6 pm and 9 pm every Tuesday, Thursday and Saturday.

58.D1 was legally represented at all appearances in the District Court.  D2 was unrepresented.  They both appeared at the mention hearings prior to the trial on 28 May, 11 June and 25 June 2013.  On 11 June the hearing was adjourned so that D2 could seek legal representation however he did not have legal representation on 25 June and the case was adjourned to for trial to the dates of 26 August 2013 at 9.30 am with four days reserved. 

59.On the trial date of 26 August D1 and D2 were absent.  Up until that date the defendants had been complying with most of their bail conditions. D1’s counsel informed the court that he had seen D1 in conference in late July but since about 12 August his instructing solicitors had lost contact with D1.  They had told D1 in the conference in July that they would need to see D1 again in conference as they required more instructions from him.  However thereafter they were unable to locate D1.

60.At the first day of trial D1’s legal representatives were still unable to locate or contact D1.

61.The prosecution informed me that D1 and D2 had both as required by their bail conditions reported to the respective police stations two days earlier.  I therefore adjourned the matter for a further three days to see if the defendant would also report to the police stations, as both defendants were to report the next day or the day after respectively.  Nevertheless warrant of arrests was issued with no bail. 

62.I granted D1’s counsel application to discharge himself from representing D1 on the first day of the trial.

63.At the resumes adjourned hearing on 28 August (noting this would have been the third day of trial) the prosecution informed me that neither defendant had reported to the police station and that they were no longer residing at the address as was given for some time (as required by the bail conditions).  Both defendants were absent once again and the defendants had not surrendered to court or any police station.

64.I was satisfied on the evidence before me that the defendants had deliberately breached their bail conditions and had absconded.  They were voluntarily absent from their trial without any reasonable explanation.  I had not heard that they were absent from their trial because of illness or any other reasonable cause.  The defendants had voluntarily abandoned their right to be present at their trial and for that reason I continued in their absence.

65.Fortuitously, when this matter should have been made known to the court at the outset, but only came to light during the evidence of PW1 I was informed that although the LGV is now in PW1’s possession after he had settled the ownership with PW2, he is unable to make use of it or drive it for lack of insurance and ambiguity of ownership.  It is thus been sitting idle for approximately eight months when it is needed by PW1 and his business. If the matter was to have been adjourned until the surrender or arrest of the defendants which is unforeseeable the LGV would remain unusable and idle as the Transport Department have refused to transfer it to either PW1 or his sister PW12. 

66.The LGV remains idle as it cannot be insured by PW1 or his sister PW12, because the LGV’s is still registered under D2’s name. The Transport Department will not transfer the name back to PW12’s or PW1’s name until there is a court order. 

67.Now that the case is concluded I hope the issue as to ownership can be resolved.  The Transport Department be requested to transfer the name of the LGV NF5857 back to PW12’s name who was the registered owner or to any other person that PW1 nominates as D2’s registration as owner was acquired fraudulently.

Mr. Philip SWAINSTON, Counsel on fiat, for HKSAR

Mr. LEUNG Chun Keung instructed by Messrs. Kenneth C.C. Man & Co. (DLA) for A1 (Day 1 only)

(A1) In person and absent at trial

(A2) -  In Person and absent at trial

Please refer to CACC399/2013 for the relevant appeal(s) to the Court of Appeal.