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HCMA001451/1989
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY CRIMINAL APPEAL NO. 1451 OF 1989
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BETWEEN
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THE QUEEN |
Respondent |
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AND |
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TSE MING LI |
Appellant |
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Coram: The Hon. Hooper, J. In Court
Date of hearing: 2 February 1990
Date of delivery of judgment: 26 February 1990
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JUDGMENT
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1. On the 27th October 1989 the appellant was convicted of theft of a red leather steering wheel contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. He was sentenced to 8 months' imprisonment.
2. Although he initially appealed against both conviction and sentence, he now abandons his appeal against sentence but pursues his appeal against conviction.
3. The owner of the steering wheel alleged in the charge was Nicholas John Roberts, an expatriate Chief Inspector in the Royal Hong Kong Police and he gave evidence as the first prosecution witness at the trial. He testified that on the 27th March 1989 he parked his car at Kowloon City and at the 11:15 p.m. he discovered that his car was missing. Later that same day he was shown a car which he identified to be his and on examining it, he found various items missing, one of which was the red steering wheel, the subject matter of the charge. Other items missing were four tyres and four wheels, one pair of police handcuffs, one torch, and a light cover. On the 11th April 1989 he went to Butterfly Estate, Tuen Mun where he was shown a Honda Civic and was asked to look at the steering wheel. He did so and was able to identify it as the one stolen from his car. There is no issue at this appeal on the question of the identity of the steering wheel as being the stolen property of the first prosecution witness.
4. The evidence relied upon by the Crown to identify the appellant with the theft of the steering wheel was in the testimony of PW2 and PW3. PW2, MAN Wing-yiu gave evidence that he was the registered owner of DY8573 and that on the 11th April 1989 at 3:00 p.m. the red steering wheel was seized by a police officer from his car. It was given to him three to four days before his arrest by his friend whom he identified as the appellant. He testified that the appellant took it up to Lam Tin and gave it to him in the garage. He later testified :
"Defendant handed it to the person at the garage who in turn handed it to me. Defendant was not present during the handing over. The night before he gave it to me he promised to give steering wheel to me. The night I met defendant. He said he would give me a steering wheel. I asked when he said tomorrow. I mentioned to him I intended to buy a steering wheel it might be he had an extra one as he said he had extra one he can give it to me. That was the night before he gave it to me. I recognise P1 - it was the one given to me. The night before I got steering wheel was late at night after 11 in Jorden Road cooked food stall. Apart from me and defendant there was some friends. There were a few I don't know if they heard the conversation. I was arranged that defendant would take it up to Lam Tin to that garage for me. The time I collected it Mak Pak Lam gave it to me."
In cross-examination he said :
"I did not see defendant bringing along steering wheel at all. I did not pay. I don't know how much it would cost. I have not asked. I need this one as I don't like the handling of the old one. The value of the one I have been using came with the car. I don't know which are more expensive. I was not interested in knowing the value before I accepted. I did not know beforehand which type steering wheel I would be getting. Defendant been in my car before he saw my steering wheel. I have known defendant 1 year odd. I think he is good friend. I met defendant sometimes we play sometime once every few days. I did not ask defendant when he got it. He said he would give it to me there was no reason I would ask him for it.
I did think of paying of him. I did say I would pay him. I ask him if I should pay him and he said no. That was on the day he said he would give it to me. I was arrested by Police. I can't remember date. I was told I was suspected to be in possession of stolen goods after arrest. I was surprised. After my arrest I did not go to see defendant. I did not seen defendant when I was on bail because I felt it was not all right to do so. I saw him but did not sit down and chat to each other."
5. He said later in his testimony that the police did not tell him that he may be charged. They said they had to investigate. He did fear that he may be charged. Later he testified that Mak Pak Lam (PW3) handed it directly to him at the garage at Lam Tin and that he (PW2 himself) had told the appellant he would collect the steering wheel from Lam Tin. He also told Mak Pak Lam (PW3) that he would go, and the next day he rang PW3 to see if the appellant had taken the steering wheel along and told him to page him to come and collect it. That evening PW3 did page him.
6. He also admitted under cross-examination that he had a criminal record which started in 1978 when he was convicted of robbery and was sentenced to a detention centre. He had pleaded guilty. His second conviction was in the 1980s, about six to seven years ago, for gambling, again he pleaded guilty.
7. So his evidence was in effect that the appellant had told him that he would deliver the steering wheel to the garage of Lam Tin and that he himself had made an arrangement with the PW3 to collect it from the garage when it was delivered by the appellant and that the PW3 would page him at this time. That PW3 did so and he subsequently collected it from PW3. PW2's earlier testimony that the appellant gave the wheel to him three or four days before his arrest must be looked at in the light of his subsequent testimony.
8. PW3, Mak Pak tam, a motor mechanic testified that the steering wheel was given to him at the garage to give to PW2. He identified the appellant as the person who gave the steering wheel to him and he confirmed that PW2 was the person who collected it from him. Under cross-examination he admitted that he had a criminal record in 1984 for driving without a licence to which he pleaded guilty. He admitted that the police told him that, he may be charged and that he was worried that he would be charged. He admitted also that the police did say that if he could give a satisfactory explanation for the steering wheel, he would not be charged.
9. When the PW3 had finished giving his evidence, the charge was amended to read "one day between 27th March and 11th April 1989". At this stage, the prosecution closed their case and the appellant elected to remain silent and call no witnesses.
10. Mr Wong who appeared for the appellant before the magistrate then made a submission drawing the magistrate's attention to the fact that PW2 and PW3 were suspect witnesses, both of whom had criminal records and both of whom had feared that they may be prosecuted and therefore had a motive to frame the appellant.
11. The magistrate immediately after the recording of the submission has recorded his decision and also that the appellant was convicted and oral reasons given therefor.
12. In his statement of findings, he said "having considered all the evidence and observed the demeanour of all the prosecution witnesses I have no difficultly in accepting their evidence." And later:-
"As to PW2 and PW3, I rejected the submission that they framed up the defendant in order to avoid trouble. There are some minor discrepancies in their evidence, for example, whether PW2 and PW3 met to have night snacks. I do not consider this as material so much so that it would create a reasonable doubt in my mind. I have considered that the time they gave evidence was a few months after the time of the incident.
I have no doubt that the defendant was in possession of P2 (the steering wheel) and he gave it to PW3 who in turn gave it to PW2. I believe PW2 that he got Exh. P2 a few days before the 11th of April, one day after the defendant brought it to PW3's garage. I have considered that it was only after about ten days after PW1's car had been stolen that the defendant brought Exh. P2 to PW3's garage. Putting all the evidence together I have no doubt that the defendant stole the steering wheel, Exh. P2, and I convicted him accordingly."
13. Mr Joseph Tse who represents the appellant on this appeal bases it on three main grounds:-
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(1)
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That the Magistrate erred in that he failed to consider whether the second and third prosecution witnesses might have been accomplices.
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(2)
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If he had considered that question, he might have come to a conclusion that they might have been accomplices and therefore he ought to have given himself the accomplice warning which he had not done.
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(3)
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If he had considered that question but had come to the conclusion that these two prosecution witnesses might not have been accomplices, nevertheless, he should have come to the conclusion that they were witnesses who might have some personal interest or reason in giving false evidence against the appellant. In these circumstances the Magistrate ought to have given himself a warning that he should proceed to consider the evidence of these two prosecution witnesses with caution before he could convict. |
14. Mr Tse has referred to the first two categories of accomplices referred to in Davies v. Director of Public Prosecutions [1954] A. C. 378 by Lord Simonds L.C. who stated in the course of the judgment of the House :-
"On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category :-
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(1) |
On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors). This is surely the natural and primary meaning of the term "accomplice". But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz.:
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(2) |
Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny." |
15. The third category is not of any relevance in the present appeal. Mr Tse submits that PW2 and PW3 could have been accomplices within the first two categories referred to above. He emphasises the evidence of PW2 that he did not pay the appellant any money for the steering wheel. Neither did he ask any questions about the source of the steering wheel. Mr Tse submits that although the Magistrate did not refer to the doctrine of recent possession, he nevertheless must have based his decision on the evidence that the appellant was in possession of the stolen property a very short time after the offence had been committed. Indeed, he found that it was only after about ten days after PW1's car had been stolen that the appellant brought the steering wheel to PW3's garage.
16. Mr Stanley Lee who represents the Crown submits that neither of these two prosecution witnesses were or might be accomplices in the legal sense as laid down in Davies's case. He submits that it is a question of law for the judge to decide if there is evidence which suggest that the prosecution witness might be an accomplice and that whilst it is clear from the factual situation that both PW2 and PW3 were in possession of the stolen steering wheel a short time after the theft of it, nevertheless possession alone was not enough to make each a possible accomplice. He submits that PW3 was definitely not an accomplice, because he had a commercial relationship with the appellant and in fact did repair work for him. That is why the item was passed to him at the garage. Thus, he argues, PW3 could corroborate the evidence of PW2.
17. Mr Tse retorts that failure to give the accomplice warning in respect of even one prosecution witness was enough to vitiate the conviction.
18. I think it is reasonably clear from the cross-examination of PW2 and PW3 and from the final submission of defence counsel, that an issue arose as to the possibility that these 2 witnesses might themselves be guilty of the crime charged and were persons who might have their own interests to serve by giving false evidence against the appellant.
19. It is of concern to me that the record is silent as to whether the magistrate considered these questions. Furthermore, I do not think in this situation that I should assume that he did so, or that he gave himself any accomplice warning or indeed any warning to proceed with caution.
20. In the circumstances I cannot allow the conviction to stand.
21. The appeal against conviction is allowed and the conviction is set aside.
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(N.B. Hooper)
Judge of the High Court
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Representation:
Mr Joseph W.Y. Tse (Clifford Yeung & Co.) for Appellant
Mr Stanley Lee, Crown Counsel, for the Crown
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