HKSAR v. LIU WAI HONG & ANOTHER

HCMA1121/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1121 OF 2003

(ON APPEAL FROM TWCC 1770 OF 2003)

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Dates of Hearing : 30 June and 26 August 2004

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J U D G M E N T

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1. Both appellants were, on 13 October 2003, convicted of conspiracy to pervert the course of public justice and, on the same day, the 1^st appellant was also convicted of one charge of dangerous driving.  On 27 October 2003, each was sentenced to six months’ imprisonment in respect of the charge of conspiracy to pervert the course of public justice, and the 1^st appellant was sentenced to two months’ imprisonment in respect of the charge of dangerous driving, one month of which was to be served consecutively with the sentence in respect of conspiracy to pervert the course of public justice.  Both of the appellants now appeal their convictions.

2. At 5:20 a.m. on 22 September 2002, a car with two passengers was proceeding along Tsing Tsuen Road towards Tsing Yi at a speed of about 30 to 40 km/h.  Approaching them on the same side of the road from the opposite direction at a speed of between 70 and 130 km/h was a vehicle numbered KS8295.  A head-on collision took place between the two vehicles and both persons on board the first vehicle suffered serious injuries.  Two men were seen to leave KS8295 which was later found to be registered to the father of the 1^st appellant but was in the course of the trial admitted to have been used habitually by the 1^st appellant.

3. Sixteen minutes after the accident, at 5:36 a.m., a person using the name of the 2^nd appellant reported the theft of the 1^st appellant’s car to the police by telephone.  The two appellants arrived at Tsuen Wan Police Station at 6:00 a.m. to give details of the alleged theft of the car. 

4. The conspiracy alleged by the prosecution against the 1^st and 2^nd appellants was that they had colluded to make a false report about the 1^st appellant’s car having been stolen and that in fact the 1^st appellant had been the driver of that car at the time of the accident I have described above. 

5. After the accident, the vehicle KS8295 was forensically examined.  The magistrate accepted that there were no signs of prizing open of the doors or tampering with the ignition switch.  Two protruding air bags were cut from the car for further forensic examination.  Examination of the air bags revealed that the DNA found on the air bag cut off from the driver’s side of the car could have come from the 1^st appellant.

6. Each appellant made a number of witness statements during the course of the investigation.

7. The 1^st ground of appeal in the grounds filed jointly by the appellants was that the magistrate was wrong in inferring a conspiracy from the inconsistency between the witness statements given by the two defendants to the police in the incident.  Further that the magistrate did not give proper weight to evidence favourable to the defendants when he considered the evidence.  That one of the takers of the witness statements admitted that he used his capacity as the superior officer of the 1^st appellant to cause the 1^st appellant answer his questions.  That the same position existed with regard to the 2^nd appellant.  That the appellants were taken to the scene where the car was stolen and the restaurant where they claimed to have been that night and that their identification there by staff members was an improperly conducted identification parade.  That the DNA on the air bag may have been contaminated.  That the injuries on the appellants did not match injuries that would be sustained in a car collision.  That no broken glass was ever found on the clothing of either appellants.  That the prosecution had not negatived the possibility of someone using a second set of keys to drive the car.  That there were contradictions in the evidence of the staff of the restaurant where the appellants said they had been drinking.  That the magistrate found the appellants were not at the restaurant where they said they were on the night in question was not evidence from which it could be inferred that the car was not stolen and that where the court had drawn inferences, they were not the only inferences which could necessarily and reasonably have been drawn from the circumstances. 

8. In respect of first matter raised by the appellants, they quote of the Statement of Findings of the magistrate where he said this :

“… Moreover if I was to be satisfied beyond reasonable doubt that D1 had lied to the police about his car having been stolen and the circumstances of what happened on the night in question I cannot rely on the lies to establish guilt.  I must look at the totality of the evidence which I do accept excluding the evidence of D2 to ascertain if that establishes the guilt of D1 to the required standard.”

This quotation relates to the analysis by the magistrate of the 2^nd charge on the charge sheet which was one which the 1^st appellant alone faced.  That was the charge of dangerous driving.  The magistrate in that passage was stating that he could not rely upon lies which he found to have been told to establish guilt and that he had to look at the totality of the evidence, excluding the evidence of the 2^nd defendant, to see whether the guilt of the 1^st appellant was established.  That was a perfectly proper approach for the magistrate to take and specifically excluded any consideration of the statements by the 2^nd appellant in respect of the charge faced solely by the 1^st appellant.  There is nothing in this ground of appeal.

9. In respect of the next matter complained of, the magistrate did take into account that the appellants were being questioned in the first instance as police officers by senior officers and also that the statement takers at that time had their suspicions that this was not a case of theft but a case where the appellants were conspiring together to pervert the course of public justice.  Whilst they had those suspicions the evidence was that they had no evidence which would have required them to have cautioned the appellants, with that the learned magistrate agreed.  Both the appellants were at trial represented by very experienced counsel who did not suggest at any time that it would have been appropriate for the appellants to have been cautioned at the time of the giving of those statements.  The magistrate was further satisfied that the appellants were never given the impression that they were either required to answer questions or that they had to give an answer when they were uncertain about the subject matter that they were addressing.  Had there been any evidence to indicate the statements were taken unfairly, one would have expected it to have been raised by experienced counsel and been a matter of argument at trial. 

10. Further, in the facts admitted under section 65C of the Criminal Procedure Ordinance and placed before the magistrate at trial, both of the appellants admitted that they had given these statements to the police voluntarily.  I accept the argument that on the face of the acceptance by both of the appellants of the truth of the fact that the statements were given voluntarily, the issue of whether or not they were taken by senior officers or the position of the appellants vis-à-vis those senior officers makes no difference.

11. The next matter was the complaint that when the appellants were taken to the Co Co Duck Restaurant where they said they had been on the evening of the accident, they alleged that they were identified by the staff of the restaurant and that it was an improperly conducted parade.  The fact is that the magistrate did not rely upon any evidence of identification at the restaurant.  The evidence of the two witnesses from the restaurant was no more than the fact that the appellants had not, as they had alleged, occupied a particular table at that restaurant for the time they said they had occupied it.

12. The complaint in respect of the DNA being contaminated has no force inasmuch as the magistrate did not rely upon the DNA evidence in reaching his verdict.  The magistrate said this in his findings : 

“The evidence about the air bags was equivocal as the bag might have been touched by D1 in the vehicle pound or could have been contaminated by the steering wheel.”

The magistrate did not, therefore, rely upon that evidence.

13. The next matter complained of by the appellants concerns their injuries found upon them.  The magistrate said this :

“The evidence of the injuries found on the defendants was equivocal.  Certain injuries might have been sustained during the same time frame as the accident but the forensic pathologist stated that it was not possible to determine the significance of the injuries in relation to the offences under investigation.”

The statement by the magistrate that the evidence was equivocal of course means that he did not take it into consideration in reaching his verdict. 

14. The appellants argued that no broken glass was ever found on the clothing of the defendants after the accident.  The magistrate said this about it :

“… There was also no glass on the defendants as might have been expected given the glass fragments observable in the photographs.”

Given that passage in the Statement of Findings, it is obvious that the magistrate considered the fact that no glass was found on the clothing of the appellants in their favour.  Having considered it, he nonetheless went on to consider the whole of the evidence and to find them guilty of the charges notwithstanding that fact.

15. The appellants argued that the magistrate drew an inference that the car was stolen because the 1^st defendant was in possession of the car keys and that he was the habitual user of the car and did not allow others to drive.  They argued this was an inference that the magistrate was not entitled to draw.  The appellants argued that someone might have used the second set of keys kept in the 1^st appellant’s home to drive the car away and that no inquiries were made by the prosecution of other family members as to whether they had removed the car from where it had been parked by the appellant and had a traffic accident later. 

16. The case of the appellants in respect of this trial was that they approached the car where it was parked after having been drinking at the Co Co Duck Restaurant at the time when it was stolen.  They said that the car door was opened and the engine started without using keys and was taken away by an unknown person.  The magistrate clearly disbelieved that case as put by the appellants but did accept that the 1^st appellant was in possession of the car keys, was the habitual user of the car and did not allow others to drive it.  Given those circumstances it was open to the magistrate to infer upon all the facts that the allegation was the car had been stolen by a person not using the keys and not being a person permitted to use it. 

17. The appellants complained that the evidence of the staff of the restaurant was not correct in that they admitted on the night in question many people had a lot to drink.  The case for the appellants was that they had been at the Co Co Duck Restaurant at Tsuen Wan from about 3:00 a.m. to some time after 5:00 a.m. when they went to collect the 1^st appellant’s car and saw an unknown male stealing it.  Their case was that in the statements that they had given the police they said they occupied table 11 and consumed a dozen bottles of Budweiser beer.  The evidence of the witnesses from the restaurant was that the table No.11 was occupied by regular customers of the restaurant on that evening at the time stated by the appellants and those regular customers were not the appellants and that there were only two bottles of Budweiser sold in the premises on that night.  That point was supported by their business records.  That was the evidence relied upon by the magistrate.  It was not successfully attacked in any measure and he was entitled to accept and rely upon it.

18. The next complaint by the appellants was that the finding by the magistrate that they were not at the Co Co Duck Restaurant on that night did not irresistibly lead to the inference that there was no car theft.  The appellants in their statements to the police which were produced by the prosecution alleged that they were both at the Co Co Duck Restaurant for the period that I have stated above and that when they went to leave they contacted another policeman for assistance, saying that the 1^st appellant had consumed beer and could not drive.  They said that they saw the theft of the car when they were on the way to collect it and then reported it to the police as stolen both by telephone and in person.  There was ample evidence from the telephone records of the appellants and from the evidence by the restaurant staff that the appellants were not in the restaurant at the time they claimed to have been there.

19. Each changed their versions a number of times in the statements they gave to the police as to the circumstances of the theft, the magistrate was entitled to infer as he did that firstly, the appellants had not been in the restaurant as they claimed and secondly, the car had not been stolen as they alleged.

20. The magistrate properly considered the inferences available to him.  He properly considered that they were the only inferences that could be reasonably drawn and considered whether or not there were competing inferences that should be drawn in favour of the appellants.  I cannot fault his approach and his analysis of both fact and law in respect of all the matters complained of by the appellants were properly pursued.  There was nothing in the grounds of appeal in respect of the 1^st charge of conspiracy to pervert the course of public justice.

21. In respect of the 2^nd charge which relates to the 1^st appellant alone, it was submitted by the 1^st appellant that the magistrate having convicted on the 1^st charge proceeded to automatically convict on the 2^nd charge.  In fact he did not do so.  In arriving at his verdict in respect of the 2^nd charge, the magistrate considered the whole of the applicable evidence.  He approached it properly both as to fact to law and there is nothing in this ground of appeal.

22. Given that the appellants are unrepresented, I have considered this matter carefully and looked for any matters in respect of the approach by the magistrate which may have been in their favour.  I can find none.  The magistrate approached this difficult and complicated set of facts entirely properly.  His analysis is careful and considered.  His findings of fact are logical and unassailable.  His application of the law is proper and there is nothing in either of these appeals against conviction.  Both appeals against conviction are dismissed.