HKSAR v. MOK WAI SHUN

CACC 142/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 142 OF 2007

(ON APPEAL FROM DCCC NO. 1044 OF 2006)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. This is a fact-based application in which the only issue is whether the trial judge was entitled to infer from the evidence that the applicant was party to a conspiracy to steal.

2. The applicant was the fourth of seven defendants who were charged jointly with one count of conspiracy to steal a lorry and its contents.  There is no question but that there was a conspiracy and that it took place in August 2006.  The matter came before Deputy Judge Jenkins in the District Court.  The first and second defendants pleaded guilty; the third, fourth and fifth defendants pleaded not guilty but were convicted on 16 April 2007; and the sixth and seventh defendants were acquitted.  

3. A man called Chui Man Kit (“Chui”) was a lorry driver employed by a transport company, Win’s (Hong Kong) Ltd (“Win’s”).  He was approached by D1 and put to him the notion of stealing a company lorry and its cargo, provided that the cargo was worth stealing.  Chui pretended to go along with this but instead informed his employers who in turn reported that matter to the police.  By arrangement with the police, Chui played the part expected of him by D1 and the police maintained observation at all material times.

4. To cut a long story short, Chui gave D1 a key to the lorry and D2 and D3 had a copy made and the original was returned to Chui.  The lorry was loaded with computer parts worth $8 million.  Chui passed on this information to D1 and the plan to steal goods went into action.

5. D1 told Chui to drive the lorry to Kwai Fong, which, at about 11 a.m., he did.  He informed D1 where the lorry was and left the scene.

6. At 11:48 a.m. D2, D3 and the applicant were seen by the police to wait at a junction of the road where the lorry was parked.  They waited there for about 35 minutes and at 12:24 p.m. they boarded the lorry.  The applicant placed himself at the driver’s seat.  A saloon vehicle arrived and when it drove off, it was followed by the lorry, the applicant driving the lorry all the while.

7. The lorry was observed by the police to cross the Ting Kau bridge.  It did not stop in the course of its journey.  Some time after 1 p.m. the lorry entered a godown in Hung Shui Kiu and its occupants alighted.  They went to the back of the lorry where D2 attempted to open the tailgate with a key but was unable to do so and, saying that it was very urgent, he asked D3 to borrow some cutters from the godown which D3 did, and D3 used the cutters to cut the padlock.

8. The police moved in and arrested the three men, including the applicant, for the offence of stealing the lorry and its load of electronic parts.  The applicant said: “I did not steal a lorry.  Someone hired me for $300 to drive a lorry.  I did not know what the lorry was loaded with, it has nothing to do with me.”

9. Upon his arrest, D3 said – although what he said is not of course evidence against this applicant – that he was to be paid $50,000 for unloading goods but did not know how the goods were obtained.  D5 said at trial that he was offered $50,000 for helping to move goods but that he did not take the offer seriously, thinking he would receive only a few hundred dollars.

10. The applicant testified at trial.  He said that he happened to hold a driving licence for the vehicle groups relevant to this particular lorry and that he occasionally worked on a casual basis as a driver.  He had known D2 for over ten years and D2 was, he said, a good friend, who had engaged him in the past as a lorry driver on a casual or daily basis.  He testified that he had been telephoned by D2 on 23 August 2006 and asked to see him.  He was collected by D2 and in the vehicle was also D1 and D3 whom he had not previously met.  A little later, he was told by D2 that there was a driving job to be done and that he would be paid $300 for the trip but that he would not be required to move any goods.

11. They met the next morning, he said, at about 8 a.m. at a restaurant in Yuen Long and D1, D2, D3 and D5 were there.  After eating in the restaurant it became clear that the goods were not ready and so, at the applicant’s request, D2 drove him to Tin Shui Wai where he had other work to do.  Between 11 a.m. and noon, D2 telephoned him to say that it was time to start work and he was fetched by a car with, again, D1, D2, D3 and D5 present.  There was no conversation in the car and he did not know where they were going.  Eventually they reached Kwai Fong and alighted the lorry.  He denied that they had waited around before doing so.  He was handed a key by D2, drove as asked to the godown, and was on his way to the godown office when he was arrested.  He denied knowing that either the lorry or the goods were stolen.

12. The lorry housed a global positioning system (GPS) device which, according to Chui’s testimony, was operating at the time he disembarked the vehicle in Kwai Fong.  Another witness for the prosecution, referred to in the Reasons for Verdict as PW2 was a transport supervisor at Win’s.  The purpose of the GPS device was to monitor the progress of vehicles by viewing a GPS signal on a computer screen.  PW2 said that the position of the lorry at any given time was indicated by a pink spot superimposed on a map depicted on the screen.  At 12:51 p.m. on 24 August 2006, the movement of the spot stopped at the time that the lorry passed over the Ting Kau bridge.

13. It was evident however from the testimony of an observing police officer that the vehicle never stopped on that bridge.  Either, therefore, the device ceased functioning at that time or it was removed.  The judge concluded that it had been removed whilst the lorry was crossing the bridge.  This was, so it seems to us, the only reasonable inference, given the fact that when the lorry was examined by the police in the godown, part of the device and wires belonging to it were on the floor of the front passenger side of the vehicle and that Chui gave evidence that those disconnected cables and wires were not there on the floor when he left the lorry.

14. Mr Yip on behalf of the applicant has presented two grounds of appeal but in reality, their effect is one, namely, that there was insufficient evidence from which to draw the inference, which the judge in the event drew, that this applicant was party to the conspiracy.

15. It is first suggested that the testimony concerning the GPS device did not inevitably lead to the conclusion that the device had been deliberately disconnected in the lorry cab whilst the lorry was on the bridge.  It is said that there might be a number of other inferences that could reasonably be drawn.  We need not spend time on this because we are satisfied that the evidence taken as a whole pointed to the judge’s conclusion as being the only reasonable one available.

16. Then it is said that the judge erred in concluding that it was not believable that D2 would engage the applicant to drive a lorry carrying $8 million worth of goods which was stolen without telling the applicant what it was all about.  The argument runs that there was an equally possible inference to draw, namely, that the applicant was an innocent agent.

17. We are in the event satisfied that the judge drew the correct conclusion.  It is not merely the fact that the system was disconnected when the applicant was driving but also the unusual scenario in which a driver of a lorry is not just sent to fetch and drive a lorry but waits, rather, for over half an hour in the company of several men in the presence of the vehicle he is to drive and until another vehicle arrives to lead the way for them all (with no explanation from the applicant for this wait, but rather a denial that it happened at all) and, in addition, is not asked to depart when he delivers the vehicle to its destination but is there when implements are used to break open the padlock to the tailgate.

18. For these reasons, the application is dismissed.