HKSAR v. Yu Hing Lung and Another

DCCC 689/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 689 OF 2014

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REASONS FOR VERDICT

1.D1 pleads not guilty to one charge of handling a stolen vehicle, contrary to section 24 of the Theft Ordinance, Chapter 210 (charge 2). D2 who has been charged with theft of the vehicle (charge 1) absconded on the first day of trial.

Introduction

2.K.K. International Limited owned a Toyota Vellfire, registration mark CL 834.  From the 16 October 2013 onwards CL 834 was parked in a car park on Lok Ma Chau Road. Save for one day at the end of October CL 834 remained in the car park.  In the afternoon of the 29 November 2013 Mr Fung Kin Keung, a director of K.K. International, noticed from the GPS monitor in his office that CL 834 had been driven out of the car park and was turning into Shek Kong.  Having checked with his driver Chiu Chi Wa that he was not driving CL 834 and had not given the key to anyone a report was made to the police.  At 6:50 p.m. the same evening the police located CL 834 at the Hing Lung Motor Services Company in Pat Heung.

3.In summary the prosecution case is that CL 834 was stolen from the car park on the 29 November and that D1, the proprietor of Hing Lung Motor Services Company, dishonestly received CL 834, knowing or believing the car was stolen.  The defence case is that D1 did not know CL 834 was stolen having been driven to the garage for repair. The main issue is whether the prosecution have proved beyond reasonable doubt that D1 knew or believed that CL 834 was stolen. 

Evidence

4.The prosecution called 5 of 16 witnesses set out in the list of prosecution witnesses supplied to court.  For ease of reference the same witness number was given.  Facts have also been admitted which I will refer to as I review the evidence.  Similarly the numbering of exhibits followed the list supplied to court save exhibit P7 was not produced.  D1 elected not to give evidence or call witnesses.  Admitted in evidence is a video interview (exhibit P9) in which D1 gives the explanation that CL 834 was driven to the garage for repair. I have carefully considered all the evidence and the submissions of Mr Tracy and Mr Souyave. 

Circumstantial evidence

5.There is no direct evidence that the defendant knew CL 834 was stolen.  The circumstantial evidence from which the prosecution ask the court to draw the inference D1 knew CL 834 was stolen consists of D1’s recent possession of CL 834; oral statements attributed to D1; and the condition in which the police found CL 834. 

Theft of CL 834

6.The prosecution rely on the evidence of the GPS monitoring system installed in CL 834 to show when CL 834 was stolen.  Mr Wan Hon Chuen (PW5), who installed the GPS system in CL 834, produced the GPS tracking records (exhibit P8A-D) for the period 15-29 November 2013.  Mr Wan gave expert evidence on the operation of the GPS system and explained the tracking report. 

7.In summary the tracking report shows that between 00:29:03 on the 15 November and 16:54:23 on the 29 November CL 834 remained in the same place.  This is consistent with the admitted evidence that CL 834, was not moved from the car park throughout this period (see paragraph 1 of the admitted facts, exhibit P10). 

8.Mr Wan explained the data showing “with passengers” on the 28 November should not have appeared if the system was operating normally.  This was because a censor to detect the presence of passengers was not installed in CL 834.  Further there was also some unusual information, in particular the reception time of the data suddenly dropping and then increasing again; the time intervals were too short and the engine was shown as being constantly switched on and off. 

9.Mr Wan was of the opinion that there had probably been external interference with the components of the car such as the ignition switch resulting in the fluctuation of the data on the 28 November but not prior to that date.  In cross-examination Mr Wan expressed the opinion he thought someone had copied the signal of the key.  In answer to the court Mr Wan explained he was not sure if all the data was affected on the 28 November because he did not know the extent of the interference or damage to the GPS system.  

10.Notwithstanding the interference on the 28 November Mr Wan was the opinion that the data on the 29 November was accurate because CL 834 was at the time on the move.  In cross-examination Mr Wan said that the reading “with passengers” on the 29 November could have been as a result of the interference on the 28 November but this did not affect all the readings otherwise the police would not have been able to locate CL 834.  In answer to the court Mr Wan said that even if there was interference the GPS system would still detect if CL 834 was driven away. 

11.I accept the opinion of Mr Wan.  CL 834 is shown leaving the same place where the car had been parked the previous 14 days.  The first location after “engine on” is Lok Ma Chau Road, the location of the car park.  The data shows CL 834 to have been driven directly to near Shek Kong Airfield Road soon after which it stops as shown by “engine off”.  The police found CL 834 very close to the end of Shek Kong Airfield Road as shown on the sketch drawn by WSPC 55958 (exhibit P11).

12.Notwithstanding there may have been interference with CL 834 on the 28 November I am satisfied CL 834 was stolen on the 29 November when driven from the car park to the defendant’s garage.  Mr Souyave (at paragraphs 6 & 7 of his written submission) submits that because there are no tracking records for the period from the end of October to the 15 November CL 834 may have been stolen during this period.  The suggestion the thief may have stolen CL 834 in this period only to return the car to the car park from where he stole the car and to steal again on the 29 November, needs only to be stated to show how fanciful a suggestion this is. 

13.Mr Wan said the time on the 29 November would not be affected.  Even if there is an error in the precise time D1 admits that he received CL 834 in the evening of the 29 November (see counter 23 of the video interview, exhibit P9).  D1 therefore received CL 834 shortly after it was stolen.  Even if the interference on the 28 November amounts to appropriation as submitted by Mr Souyave, as opposed to acts preparatory to theft, D1 still received CL 834 within 24 hours of the theft. 

14.In the circumstances I am satisfied in deciding whether an inference can be drawn that D1 believed CL 834 was stolen I can take into account that he received CL 834 soon after the car was stolen.  Whether that inference can be drawn will depend upon not just the recent possession of stolen property but on all the evidence including whether there is an explanation for the recent possession (see HKSAR v Cheng Chi Wai [2011] 4 HKLRD 360 at paragraphs 21-27). 

Video interview (exhibit P9)

15.D1 explained in the evening of the 29 November a person surnamed Ah Wai drove a vehicle for him to fix.  D1 was asked to take down and install the braking system, headlights, front bumper, television and dashboard and to telephone Ah Wai when the work was finished.  D1 asked for $4,000 but Ah Wai said the fee should be $3,000 and paid a deposit of $1,000.  D1 continued that he had not finished the work when the police arrived; gave the police two telephone numbers of Ah Wai and said that he did not know the vehicle was a missing vehicle (see counters 23-43). 

16.In determining whether what the defendant says is true or may be true I take into account the defendant is an owner of a garage; he has no previous convictions and that there is no evidence Hing Lung Motor Services Company is not a genuine car repairer or had other stolen cars in the garage as in Cheng Chi Wai.  With this in mind I turn to consider the other circumstantial evidence. 

Police evidence

17.In summary WSPC 55958 (PW7) and SPC 23373 (PW8) testified they were asked by the consul to look for a missing/stolen 7-seater black Toyota, commonly known as a “Tai Ba Wong”.  At 18:50 they arrived at D1’s garage and saw a car similar to the one told by the consul.  The car had no number plates, many parts had been dismantled or removed and a burn mark was found under the driver seat. 

Oral statement

18.On seeing a car similar to the description given by the consul the WSPC asked D1 about the car but could not remember the sequence she asked the questions.  Asked how he obtained the car D1 replied, “The vehicle was driven there by a person called Ah Wai a week ago for him to do repairs.”  Asked how Ah Wai drove the car there D1 replied, “Ah Wai drove there by T licence.”  Asked if he knew why the car has got no body number and why it was burnt and melted there D1 replied, “I don’t know it was like that when it arrived.”  Asked if he had Ah Wai’s particulars D1 replied, “No. Every time Ah Wai got in contact with me.”  The prosecution submit the statement “Ah Wai drove the car thereaweek ago for him to do repairs” is a lie uttered out of a consciousness of guilt (see paragraph 7(b) of Mr Tracy’s written submission). 

19.The questioning of D1 was not under caution.  Although the WSPC knew CL834 had just been stolen and suspected the car in D1’s garage was CL834 I am satisfied the police before cautioning D1 were entitled to make enquiries to find out whether the car was the stolen car and whether there were reasonable grounds to suspect D1 had committed an offence. 

20.The defence case was that D1 was questioned albeit not by the WSPC.  The issue to determine therefore is the accuracy of what D1 said.  The defence submit the evidence of the WSPC is unreliable because she did not record in her police notebook or witness statement that she was the one who questioned the defendant and did not make a full record of what was said.  There is force in this submission.

21.The witness statement of SPC 23373 also did not record who questioned D1 or include a full record of what was said.  In cross-examination SPC 23373 said he relied on his memory to make his witness statement.  Initially he said he did not refer to the Occurrence Book (OB) or the witness statement of the WSPC when making his statement only to shortly afterwards to say he did read the OB.  SPC 23373 agreed there was nothing in his police notebook about what happened at the garage and that his witness statement was virtually identical to that of the WSPC. 

22.I find the evidence of the SPC 23373 is also unreliable.  To say to the court that he could remember what D1 said some 9 days later but could not remember who questioned the defendant; who found the burn marks on the car and where the burn mark was on the engine, is simply not credible. 

23.Some of the questions and replies were recorded in the WSPC’s notebook, including the reply“Ah Wai drove the car therea week ago for him to do repairs.”  This was however never shown to D1 for him to confirm the accuracy of what was recorded.  In cross-examination the WSPC said this was because D1 had not been arrested and cautioned.  The WSPC surely could not have missed the importance of what D1 said, namely that he received the car before it was actually stolen. 

24.Most disconcerting is that even had the WSPC arrested the defendant she said she still would not have shown the record to D1 for his confirmation, again because this was not said under caution.  The courts have repeatedly said this practice is unacceptable as most recently seen in two cases heard by the Court of Appeal at the end of 2012 and the beginning of 2013 (see HKSAR v Lau Ho Yin CACC 288/2011 & HKSAR v Chan Yuk Ling CACC 102/2012).

25.In Chan Yuk Ling the court said that judges and magistrates will need to scrutinise very hard any reliance by the prosecution on alleged oral admissions which are not recorded in writing and shown to the suspect for his acknowledgement or repeated by him in front of the camera (see paragraph 19 of the judgment).  With respect there would appear to have been a failure by the prosecution to scrutinise this evidence carefully before seeking to adduce this at trial. 

26.In the video interview there is no preamble reciting the mention of one week ago.  Significantly D1 did not repeat the car was driven to him a week ago.  D1 said the car was driven to him the evening before (i.e. 29 November).  Although D1 refused to answer the following questions it was never suggested in the video interview he had given a different version at the garage.  In the circumstances I do not rely on the evidence that D1 said “Ah Wai drove the car therea week ago.”

Condition of the vehicle

27.Much reliance is placed on the evidence of WSPC 55958 and SPC 23373 that they found both the chassis (the car body number) and engine numbers had been burnt and melted.  WSPC 55958 together with other colleagues looked round CL 834 for the car body number.  An area underneath the driver seat, where WSPC 55958 said the car body number was supposed to be, had been burnt and melted.  SPC 23373 went to have a look when this was drawn to his attention.  Only Mr Fung (PW4) in answer to the court identified a burn mark under the driver seat by reference to photographs 11 & 12, exhibit P2.

28.There is in my view however no admissible evidence to show what was burnt and melted was the chassis number.  Mr Fung did not know what was burnt out and had to ring his driver Mr Chiu (PW1) who told him.  Notwithstanding this was hearsay the prosecution did not call Mr Chiu to give evidence as to the basis on which he apparently knew the chassis number was burnt out.  The police officers’ evidence the chassis number was burnt out is simply an opinion without any proper foundation laid as to how they knew what was burnt out was the chassis number. 

29.Whilst the WSPC said that generally when dealing with stolen cars they look for the car body number there must in my view be evidence that what was burnt out was in fact the chassis number.  When asked by the court what evidence there was to show what was burnt out was in fact the chassis number Mr Tracy said this was a common sense matter for the jury which could not be directly proved.  Mr Tracy submitted in all the circumstances the burn mark being in a position you would expect to find a chassis number and that there would be no other motive to burn a hole there unless it was a chassis number it was a reasonable inference to draw that a chassis number was burnt out.   

30.I do not agree this is a common sense matter for the jury.  Mr Fung, the owner of the car did not know what was burnt out.  I also find astonishing the suggestion by Mr Tracy this could not be directly proved.  With respect this could and should have been very easily proved.  As already noted the driver who apparently knew a chassis number was there was not called.  Probably the best evidence would have been from Toyota.  Regrettably this is not the first time Mr Tracy has appeared in my court in a case concerning stolen vehicles in whichthe need to call a representative of Toyotahas apparently been overlooked.  A Government Chemist or vehicle examiner could have been called or a police officer who has investigated cases involving Toyota Vellfire’s thereby laying a proper foundation for his evidence the chassis number was burnt and melted. 

31.Consequently the evidence of the burn mark under the driver seat has little evidential value. I would also add that the evidence of whether the police could see the burn mark without removing the car seat and the carpet was also far from clear highlighting the importance of taking photographs before anything is moved.

32.The evidence of a burn mark on the engine number is also of little evidential value. In cross-examination the WSPC said she also found a burn mark at the front of the car.  SPC 23373 testified the engine number was also burnt and melted whereby he could not see the number.  I do not find credible the WSPC’s evidence.  In answer to the court the WSPC said she was unable to describe the burn mark because she could not remember the burn mark and said that she had forgotten to mention the burn mark when asked about the engine number in chief. Similarly I do not find credible the evidence of SPC 23373 who could not tell where on the engine was the burn mark. 

33.Whilst DPC 58723 (PW9) and Mr Fung identified a number etched on the engine as shown in the photographs (exhibit P4) neither said this number had been burnt.  I therefore do not know if this was the same number referred to by WSPC 55958 and SPC 23373.  Furthermore looking at the photographs I cannot say a burn mark is seen on part of the number as opposed to say rust. 

Vehicle Parts and dismantling tools

34.The WSPC described many parts of CL 834 having been dismantled or removed.  The parts and tools are particularised in paragraphs 4-9 of the admitted facts (exhibit P10A) and shown in the photographs (exhibit P3).  These were found either on CL 834 or on the ground near to CL 834.  No evidence has been produced as to the use of these tools or whether anything was found in the garage that could be used for removing chassis or engine numbers.  The apparent failure to appreciate the potential importance of such evidence is perhaps best highlighted by the fact the red and blue cables seen in the wheelbarrow in photograph 2, exhibit P2 which Mr Fung said are capable of burning things were not even seized by the police. 

Number plates

35.WSPC 55958 and SPC 23373 testified that the police did not find any number plates. This means either D1 removed and disposed of them or the car was driven to him without number plates.  In the absence of other evidence a court may draw the inference that D1, on seeing there was no number plates and no vehicle registration document on the windscreen, believed the car was stolen. 

36.There is however on the police evidence an explanation and that is D1 told the police Ah Wai drove there on a T licence.  This was said according to the WSPC when D1 was asked how Ah Wai drove the car to the garage.  Although I have found unreliable that D1 said Ah Wai drove the car there a week ago it does not follow everything said is unreliable.  Unlike the utterance a week ago driving with a T licence is not inconsistent with what D1 said in the video interview.  Although D1 did not repeat this having exercised his right to silence when asked about the number plates the WSPC testified she looked for a T licence but could not find any.

37.This would suggest there was mention of a T licence.  Regulations 43-48 of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Chapter 374E set out the conditions for applying and use of a trade licence and trade plates.  Although the police arrested and charged D2, whose name is Chan Kwok Wai, there is no evidence before the court this is the same Ah Wai mentioned by D1 and whether D2 possessed any trade licence.  Consideration of this explanation given by D1 also appears to have been overlooked.  A proper appreciation of the use of a trade licence may well have assisted the way in which the investigation was conducted and the evidence required for trial.   

Other circumstantial evidence - key (exhibit P5)

38.In response to DPC 58723 asking for the car key D1 produced a key.  Mr Fung was shown this key in court and said this was not a key to the car.  DPC 58723 did not ask Mr Fung about the key and thought it useless to try because of the condition of CL 834.  The potential significance of the key appears also to have been overlooked.  No mention is made of the key in the opening hence my surprise when the existence of a key first arose in cross-examination of Mr Fung.  

39.The key would also appear not to have been shown to Mr Wan for him to see if this affected the GPS system and if so the extent of the interference to the system. This highlights the failure by the prosecution to appreciate Mr Wan could give expert evidence as to the operation of the GPS system resulting in Mr Wan having to be interviewed in the middle of his evidence to ascertain whether or not he could give expert evidence. 

40.There is grave suspicion in this case by the condition CL 834 was found in D1’s garage not long after the car was stolen, in particular that there was no number plates and many parts were removed.  The evidence adduced in court however has been far from satisfactory whereby I cannot reject the explanation given by D1 that he received the car for repair may be true, especially considering there is no evidence to suggest the garage is anything other than a legitimate garage which does repairs.  The benefit of the doubt is given to D1 and he is acquitted of handling stolen goods.