R. v. LAU HON KAI and Another

IN THE COURT OF APPEAL

1994, No.591
(Criminal)

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J U D G M E N T

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Bewley, J. : (Giving the judgment of the Court)

1. We have been notified that the 1st applicant, Lau Hon-kai, died between the hearing of these applications and today. By the time we received such notification, this judgment had already been prepared. The facts pertaining to the two applicants are so closely intertwined that we propose to deliver judgment as prepared and without amendment even though there is now only one applicant, Yeung Fai-chiu, before us. That judgment is as follows.

2. These two applications flow from a series of car thefts in early 1993. Lau Hon-kai and Yeung Fai-chiu, the 1st and 2nd applicants (A1 and A2) in Criminal Appeal 591/94, were D5 and D6 in the trial before Judge Hawkes. On 22nd November, 1994, A1 was convicted on one charge of theft and he applies for leave to appeal against conviction only. A2 was convicted on three charges of theft and on one charge of attempted theft. He applies for leave to appeal against conviction and also against his sentence of five years' imprisonment.

3. The second trial was before Deputy Judge Leung, concluding on 19th January, 1995. A2 was convicted on one charge of theft and was sentenced to four years' imprisonment consecutive to the sentence in the first trial. He now applies for leave to appeal against conviction and sentence in Criminal Appeal 152/95. A co-defendant, Chau Yat Hung, pleaded guilty to this and other charges and gave evidence for the Crown. This, we understand, is the reason this charge was severed from the original charge sheet and tried subsequently.

Criminal Appeal 591/94

4. The first case arose out of an undercover police operation, in which one officer posed as a car buyer from China. As a result arrangements were made for a number of stolen cars to be delivered to a construction site in the New Territories. Here the six defendants were arrested and two stolen cars recovered in the early hours of 28th April, 1993.

5. These applicants were not concerned in discussions leading up to the delivery of the cars, which dealt with the type of cars to be stolen, price, payment and delivery details. These were handled by D1 and D3, who absconded during the trial.

6. The Crown evidence was that at about 11 p.m. on 27th April a red Mazda and a red Honda Civic were driven to the site. Number plates were removed from the Honda, which was then driven away. The undercover officer arrived not long afterwards and was met by four men, including D1, D2 and D3. Other police officers were present posing as "car jockeys", who were to drive the stolen cars.

7. Shortly after midnight the same Honda Civic was driven back to the site in company with a white Mercedes Benz. The police car jockeys were then instructed to alight from their cars and walk towards the Mazda, the Honda and the Mercedes as if to take possession of them.

8. It was the evidence of DPC477 that, when he reached the Mercedes, a man alleged to be A2, who was standing near the driver's door, showed him how to start the car with a screwdriver. The tumbler had fallen out and there was no key. While this was happening the police support team arrived and the arrests began. The man with DPC477 escaped in the confusion, but he saw him later at the construction site and in the police station. He identified him in court as A2. The construction site was well lit by street lights according to the witness.

9. Both applicants made admissions under caution that amount to complete confessions. These were challenged at trial on the grounds that they were not made voluntarily, but they were all admitted in evidence.

10. When he was arrested at the site, A1 said "Sir, I am caught red-handed and I shall admit all that I have done." At the police station he gave a detailed cautioned statement, in which he admitted that he and another defendant had stolen the Mazda in a Shatin car park. He himself had driven another red car to the construction site, where he was arrested while still sitting in the driver's seat.

11. Sgt 20590 said he had approached the Honda after it stopped facing the entrance. The interior light was on. The driver released the handbrake and attempted to drive away. The sergeant switched off the engine and struggled with the driver, who tried to open the door to escape. He says this was A1, who he arrested and handed over to DPC13151. There was another man in the rear seat. That is consistent with A1's cautioned statement.

12. But this was contradicted by DPC4839, who said A2 had been in the driver's seat of the Honda and he had arrested him after he had alighted and then tried to get back into the car again. If A2 was indeed the driver, as he says he was, he could not have been attending the Mercedes.

13. A1 did not give evidence on the voire dire or on the general issue. The judge was satisfied he was arrested at the scene in spite of the discrepancy and that his confession was true.

14. In his grounds of appeal A1 submits that the judge was wrong to admit his cautioned statement. His first complaint relates to Sgt 20590's evidence that A1 rushed out of the car, yet only managed to get one foot on the ground; and also the fact that he said he had turned off the ignition, whereas the photographs show that the driver's window was up. That evidence was contradicted in turn by DPC4839, who says he arrested A2 in the Honda, as stated above. These contradictions are discounted by the judge on the grounds that confusion reigned at the time of the arrests, but he was sure each witness had arrested the man he said he had arrested. After his arrest A1 was handed over to DPC13151, who subsequently recorded his oral admission and interviewed him at the police station. His evidence is unaffected by the contradictions above.

15. A1's next ground is that his injury was not explained. The medical report is not before us and is not referred to by the judge. Having regard to the fact that A1 was arrested after a struggle and that he did not give evidence, it is not surprising that no further enquiry was made.

16. There is no substance in A1's grounds of appeal. He added nothing at the hearing that gives us cause for concern that his conviction is unsafe or unsatisfactory. His application is refused.

17. The owner of the Porsche (Charge 7) gave evidence that it was missing from the car park when he returned from a business trip on 14th January, 1993. The number plates had been changed and the chassis number cut away. He identified the car by the engine number and other familiar features.

18. There was also evidence from a woman who said she had rented a flat to A2 and another person and that she had given them the keys. These were the keys found in the stolen Porsche. A2's thumb print was found on a newspaper that was seized from this car. Some breaking instruments were also found.

19. The owner of the BMW (Charge 8) said that when he went to collect his car in a car park on 30th March, 1993, he saw a man sitting in it. The man ran off and a woman alighted from a Porsche parked behind his car. This was the stolen Porsche.

20. A2 made seven cautioned statements. In the first two he admitted stealing the Mazda and the Mercedes and driving both to the site. He had earlier attempted to steal a BMW, but had failed to open the door. In his 4th cautioned statement he was questioned about the attempted theft of a BMW on 30th March, 1993. He admitted driving a stolen Porsche to a car park, where he tried to open the door of a BMW. He ran off when he was seen by a cleaner, leaving his girlfriend in the Porsche. In his 5th cautioned statement he was asked about the Porsche and he admitted stealing it for fun. He had stolen about 30 cars altogether that year. In his 6th cautioned statement, taken on 4th May, 1993, he answered questions about the Mazda and the Mercedes. In his final cautioned statement he admitted that the three keys found in the stolen Porsche belonged to him.

21. His evidence on the voire dire, that he had been assaulted by the police, was rejected. The judge refused to exercise his discretion to exclude cautioned statements taken after A2 had been charged. All the cautioned statements were therefore admitted.

22. A2 also gave evidence on the general issue. He told the court that he was at his Homantin home at 9 p.m. when his brother telephoned to say that he was involved in a business negotiation in a restaurant at Sun Tin, New Territories. As he would be late, he asked A2 to come to the restaurant to drive home his wife and two children plus A2's own son.

23. A2 first said he went there by car, but in cross-examination he said he spent almost two hours getting there by public transport. When he arrived his brother was not there. His sister-in-law told him that his brother wanted him to drive D4, whom he was meeting for the first time, to meet him. He did not explain why D4 had not accompanied his brother in the first place.

24. He spoke to his brother on the telephone and his brother asked him to drive his red Honda Civic, which was at Sun Tin, but he did not reveal the destination : D4 knew the way. There was no room in the car for them all, so he left with D4, telling his sister-in-law he would return to pick them up. The road was dark and A2 found himself in a construction site. Many people then rushed out and said they were police.

25. He was asked about the items found in the Porsche and stated that five adult family members, including his brother, had keys to the premises where he lived. The same five persons read the same newspaper, which would account for his fingerprint. He denied ever getting into the Porsche, or being involved in the stealing of any cars. He said he had never taught DPC477 to use a screwdriver to start the Mercedes Benz and nor had he been anywhere else in the Honda Civic before being arrested by the police.

26. He also produced to the court what appears to be a People's Republic of China passport. This document is in his brother's name and bears a photograph closely resembling A2. It is unsigned. A2 said it belonged to his brother, who had left home. A2 denied that the photograph was of himself, or that his brother was a twin. He just looked very like him.

27. A2 told the court that he had intended to give the document and other personal items to his brother in the Sun Tin restaurant. They were in a bag in his pocket, where they were found by the police after his arrest at the construction site. In an affirmation supporting his application to admit the additional evidence A2 said the passport was seized by the police from his car when he was arrested in relation to an unrelated matter. There is no explanation of what he meant by that. A further complication is that the passport purports to have been issued on 28th January, 1993, the day A2 was arrested.

28. In spite of the discrepancies in their evidence, the judge was satisfied that the police officers were telling the truth. He also accepted the evidence of the civilian witnesses.

29. The judge rejected A2's evidence in these terms :

"I virtually did not believe any of his evidence. He gave me the impression that he was making up most of his evidence as he went along. The passport which he produced has no signature under the photograph and I would have to say that the person in the photograph looks remarkably like the accused. Quite frankly, I do not believe that the passport is that of his elder brother and in fact I have grave doubts that it is a valid passport at all. In any event, I did not believe the accused's claim that he had only been implicated in this matter because of his elder brother. I did not believe his denials of ever getting into the Porsche; I did not believe him when he said he never taught PW6 to use a screwdriver to start the Mercedes Benz or when he denied being involved in the stealing of cars."

30. Later in his Reasons for Verdict the judge said this :

"Bearing in mind that I have no doubt that he has told a series of lies in court and that he has attempted to fabricate a case that it was his elder brother rather than himself was to blame, I am satisfied that his evidence has strengthened the Crown's case against him."

31. The first ground of appeal relates to this last passage :

" The Learned Trial Judge erred in law in finding that the Applicant/Appellant's sworn evidence strengthened the Crown's case against him in that he found that the said evidence was fabricated notwithstanding that he did not apply the tests set out in R. v. Lucas (1981) 73 CR.App.R. 159 and R. v. Goodway 98 Cr.App.R.217."

32. The only exception to the requirement for such a direction is in circumstances where rejection of the explanation given by the defendant almost necessarily leaves the jury with no choice but to convict as a matter of logic. That we believe was the situation here. A2 was caught at the scene. If he had not been made use of unwittingly by his brother, his guilt was apparent. Once the judge was satisfied A2 had deliberately fabricated the story about his brother, he had little choice but to convict.

33. The second ground of appeal is :

" That the Learned Trial Judge erred in law in rejecting the Applicant/Appellants' evidence because he 'virtually did not believe any of his evidence' and 'gave me (the Learned Trial Judge) the impression that he was making up most of his evidence as he went along' (emphasis added)"

34. We see no reason to criticise the judge's language. A defendant is not entitled to acquittal just because some of his evidence is found to be true. If the judge disbelieves a witness on critical aspects of his testimony, but accepts that some minor and inconsequential part of it is true, it is perfectly accurate to state that he virtually does not believe any of it.

35. "Impression" is defined as "An effect produced on the mind, conscience or feelings." It is a neutral term. It does not come close to diluting the proper direction on the standard of proof, which the judge gave himself at the end of his Reasons. There is no substance in this ground, nor in Ground 3, which complains that the judge accepted the evidence of police witnesses who he found to be "not, in some cases entirely reliable". The judge was aware of the discrepancies in their evidence, but found nevertheless that they were witnesses of truth.

36. Ground 4 is abandoned.

37. Mr Oderberg, who appears for A2 in both applications, relies principally on his final ground of appeal, which reads :

" That the Learned Trial Judge erred in law and in fact in failing to take into account at all that, on the issue of identity, the Applicant/Appellant produced an original Chinese Passport in the name of Cai Heng Sheng which showed that the person described by the Applicant/Appellant as his 'brother', and whom he believed was responsible for the commission of the offences upon which he was convicted, bore a striking resemblance to the Applicant/Appellant."

38. The trial judge can hardly be criticised for his doubts about the validity of the passport. It now transpires however that this applicant was charged in the Magistrate's Court with possession of a false passport, namely this document. It was submitted to the Forensic Scientist at the Government Laboratory, who on 21st February, 1994, (before this trial began) concluded :

" ..... No evidence of (i) substitution of the holder's photograph or pages, or (ii) alteration of personal data, was found.

Overall, the Chinese Passport was of commendable printing quality, and each page was complete with a watermark. The binding of the pages was also of good condition.

However, the page numbers "4" and "29" at the bottom of the respective pages, as well as the printed words "Signature of the bearer" (in three different languages) underneath the holder's photograph on page 4 were, despite only slightly, doubly impressed. In addition, the folio forming the first page and page 2, and pages 31 and 32 was in a slightly paler shade compared with the remaining folios of the Passport. While these discrepancies were rather unusual to occur in an official travel document and therefore could be indications of forgery, they could also be the result of poor quality control during the manufacture of the Passport. But in the absence of any control Chinese Passports, neither postulations could be validated.

Therefore, in view of the above conflicting findings, I am not able to comment on the authenticity of the questioned Passport."

39. Consequently, and understandably, no evidence was offered against A2 at his trial on the passport charge. Unfortunately this information was not conveyed to the prosecutor of these charges and he was cross-examined on the basis that the passport was false.

40. This, submits Mr Oderberg, casts doubt on the validity of the conviction on a twofold basis. First, if there is a reasonable possibility that the photograph in this document is that of A2's brother, it is equally possible that DPC477 made a genuine mistake about the man at the Mercedes, bearing in mind that this man ran off.

41. Second, it is argued, if A2 may have been telling the truth about the passport, he may also have been telling the truth about the reason for his presence at the construction site. At the very least, says Mr Oderberg, the judge's view of A2's credibility may have been adversely and unfairly affected by his finding in respect of the passport, which we now know may have been wrong. In the circumstances we thought it right to give leave to Mr Oderberg to produce the Forensic Scientist's report as additional evidence.

42. The passport was but one factor that derogated from A2's credibility. Another was the sheer implausibility of his tale. The two visits of the Honda to the site were not explained. Why did his brother not send his family home in a taxi? Why was D4 left behind in the restaurant? His evidence was confused and contradictory.

43. Even if the identification evidence of DPC477 is discounted as unreliable in the light of the passport evidence, the circumstantial evidence against A2 is persuasive. Then there are the confessions contained in his cautioned statements. These amount to damning evidence against A2. They have the ring of truth. The judge rejected the allegations of assaults by the police. They amount to complete confessions to each charge.

44. Although the judge's reasons for rejecting A2's evidence are diluted as a consequence of the passport enquiry, of which he knew nothing, the case against A2 was so strong that we are satisfied that the convictions are not unsafe or unsatisfactory. His application in respect of his appeal against conviction is refused.

Sentence

45. A2 seeks leave to appeal against sentence out of time. Mr Oderberg complains that the sentences on his client are disparate with that on A1.

46. We are satisfied that the judge rightly took into account the fact that A1's culpability was very much less, having been convicted on only one charge. A1 was also serving a sentence of 23 years, which was an important factor in assessing his sentence.

47. There was nothing to be urged in mitigation and we are satisfied the sentences were proper ones. Leave is therefore refused.

Criminal Appeal 152/95

48. On the morning of 21st February, 1993, the owner of a Mercedes Benz parked his car in Rumsey Street Multi-storey car park. At 1:30 p.m. that day a team of police officers on car patrol received a report of car theft at that car park and they arrived at the scene two minutes later. They parked their vehicle across the road on the ground floor to block the exit and walked up the exit ramp.

49. On reaching the third floor, they saw a Mercedes Benz FG7489 descending. The driver was the only person on board, but there was a man holding a black leather bag running behind. Sgt.12283 signalled the driver to stop. The car slowed down and then stopped. However, as the two constables approached the driver, it started up again and sped away. DPC45837 ran after the car but lost sight of it. He then heard a loud noise from below and later found that the guard pole of the entrance gate had been broken and fragments of indicator glass and bumper were scattered around. When he reached the ground floor, he saw the Mercedes turning right into the westbound carriageway of Connaught Road West. The car was later found abandoned at the junction with Whitty Street, having crashed into a sign-post. The ignition lock had been prised out and left on the floor.

50. The man running behind the Mercedes was arrested. He is the co-accused, Chau Yat-hung. He pleaded guilty and gave evidence for the Crown.

51. After his arrest in the Sheung Shui case on 28th April the applicant gave three statements under caution admitting his involvement in this case together with one Hung Chai.

52. On 19th May, at an identification parade, Sgt 12283 identified the applicant as the driver. When he first saw the car, according to him, it was about 60'-70' away, moving towards him at a speed of about 10 m.p.h. He was on the driver's side and could see the driver clearly as it approached. The driver was looking slightly to his right as he passed and made a deep impression on him. He could see his eyes were deep set and fierce-looking. He looked like a mainlander. Lighting conditions were very good.

53. The co-accused, Chau Yat-hung, said he met the applicant at the end of 1992 and they went out together on social occasions. On the day in question, at about 11:30 a.m., the applicant telephoned him at his home at Sau Mau Ping asking him to help steal a Mercedes Benz. He was to act as a lookout and would be given $2,000 for each car stolen. The applicant came to pick him up in a private car FL936. They went to Hong Kong Island and cruised the streets looking for targets. Eventually, at about 1.00 p.m., they came to Rumsey Street Carpark. The applicant pointed to a Mercedes Benz that was parked at a corner at 3/F-4/F. They parked their car six to seven car-spaces below it. The applicant took out a black leather bag from the boot and used a screwdriver from it to prise open the door of the Mercedes. They then boarded the car with the applicant in the driver's seat. When the engine was started, the applicant asked him to take the black leather bag back to FL936, which he did. At this point the police arrived. He could not board the Mercedes and was arrested, but the applicant drove away.

54. Chau admitted that he told lies when he was questioned by the police at the scene. He denied he knew anything about the theft of the car. He revealed the name "Dr Yeung", which was the applicant's nickname, but he lied when he said he did not know his full name. He said he was given the bunch of keys to FL936 by the applicant, but he lied that he picked it up from the ground. Shortly before he went on trial for the present charge and other charges, he decided to plead guilty and to give evidence for the prosecution in the hope of a lenient sentence.

55. The applicant gave evidence and denied that he was the driver of the Mercedes. He suggested that Chau might have confused him with his elder brother, who was known to be a car thief and looked very like him. He explained that he had heard that the police were looking for his brother and thought that by admitting the offence to the police he might stop the investigation. He admitted making his cautioned statements voluntarily.

56. In cross-examination he admitted that his brother had not told him about this robbery during the two months that the applicant remained at large. Nor had they discussed it during the period he was on bail. But on 24th December, 1993, he had made a further cautioned statement when he was asked who Hung Chai was. He replied that he did not know and he himself did not commit this offence. That was also his evidence in court. This cautioned statement was produced by the defence.

57. The judge warned himself to approach Chau's evidence with caution. He attributed his lies at the time of his arrest to instinctive self-preservation after being caught red-handed. Chau had appealed unsuccessfully against his sentence and the judge considered that he had nothing further to gain by testifying against the applicant. The judge believed he was telling the truth about the incident.

58. The judge also accepted the evidence of Sgt.12283. He gave full weight to the admissions in the cautioned statements and rejected the applicant's explanation as implausible.

59. The first ground of appeal is that the judge failed properly to address the issue of identity.

60. Sgt.12283 had only a very brief glimpse of the driver in the carpark. The identification parade was two months later, but the judge found that his identification of the applicant was of good quality. That alone might not have been sufficient to found a conviction, but did nevertheless deserve some weight. It is diluted further, however, by the evidence concerning the applicant's brother's passport, which we have admitted in respect of both these applications.

61. The judge in his Reasons for Verdict made no reference to the passport, which was also a defence exhibit in this trial. Had he been aware that there was a possibility that it was a genuine passport and that the two brothers were so alike, he might not have been prepared to place so much weight upon the sergeant's identification evidence.

62. The judge rejected the applicant's evidence that Chau might have confused him with his brother, who he knew to be a car thief. We are satisfied that the new evidence cannot affect Chau's evidence. Even if the two brothers closely resembled each other, it is unrealistic to suppose that Chau might have set off to steal a car with the wrong brother, who had no such intention.

63. The next ground is that the judge erred in holding that Chau had no incentive to lie.

64. What he actually said was :

" As to the hope for leniency, it no longer existed at the time Chau gave evidence at this trial. The sentence he had got was not what he expected. He appealed against sentence and the appeal was dismissed. He was well aware that there was no benefit or in fact nothing he could hope for in giving evidence against Defendant."

65. This was incorrect. It is open to a convicted person, who is sentenced before giving evidence for the Crown against an accomplice and whose appeal is dismissed, to apply to His Excellency the Governor for clemency.

66. The third ground is that the judge erred in finding such matters as the applicant's volubility, repetition, eagerness and convolution in the giving of his testimony as evidence of his being an unmitigated liar.

67. This misquotes the judge. What he said was :

" Defendant was a voluble witness, always eager and ready to give convoluted explanations to simple matters. He gave rambling evidence which contained in part repetition and the other part irrelevance. He has convinced me that he was an unmitigated liar in the witness box."

68. These are matters that tend to derogate from a witness' credibility. But the judge went on to say that he had considered the case as a whole and accepted the evidence of the prosecution witnesses. He did not convict only on the basis that the applicant was a liar.

69. Not surprisingly the judge refused to accept the applicant's evidence that he had confessed to this crime in order to protect his brother. This evidence is unaffected by the additional evidence relating to the passport. The confession has the ring of truth. It is not alleged to have been concocted by the police. The applicant's final statement - that he had no knowledge of the case or of Hung Chai - is patently absurd in the light of his earlier voluntary admissions.

70. We have considered all the matters put forward by Mr Oderberg and we are satisfied that they do not cause us any anxiety about the correctness of this conviction. Having regard to the judge's error concerning Chau's expectations, we grant the application, treat it as the hearing of the appeal, apply the proviso and dismiss the appeal.

Sentence

71. The judge apparently was not informed that this offence was one of a series of car thefts carried out by the applicant between January and April, 1993. Had he been aware of the fact he would, we believe, have ordered this sentence to run concurrently, or partly concurrently, with the sentences in the other case, in which the applicant was sentenced to a total of five years' imprisonment.

72. We grant the application. We treat it as the appeal. We allow the appeal and order that three years of the sentence run concurrently with the sentences in CA 591/94.