THE QUEEN v. SIU KAI MING

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JUDGMENT

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Silke, J.A. :

1. The applicant was charged with, and convicted after trial, of the offence of handling stolen goods. The Particulars of that offence alleged that:

"On a day unknown between the 29th day of September 1983 and the 9th day of May 1984, in Hong Kong, he dishonestly handled certain stolen goods, namely a private car registration number BH8188, belonging to CHAN Shing, knowing or believing the same to be stolen goods."

2. On the 30th September 1983, a red Toyota Celicia car, registration number BH8188, was stolen. Some time in 1983, a white Toyota Celicia car, registration number CZ8019, was severly damaged in an accident. It was brought to the Foon Far Motors who sold it to a purchaser who in turn sold it to the applicant's Kwong Ming Garage in Tai Kwok Tsui on the 4th October 1983.

3. On the 9th May 1984 a car, being a red Toyota with the registration number CZ8019, was give given by the applicant to a customer while that customer's car was being repaired. In some fashion which is unclear, that car came to the attention of the police. Upon subsequent examination, the red car with the registration CZ8019 was identified as being the original stolen red car BH8188. There had been, as well as a different registration plates, an alteration to the chassis number.

4. Sometime after the 4th October 1983 the applicant borrowed the identity card of one Cheung Chiu Yee,  passed it to another person ostensively so that the white car CZ8019 could be registered in Cheung Chiu Yee's name. There was an agreed computer print out which showed that the Registration Documents for a car registration number CZ8019, the colour of which was described as red, were issued on the 20th October 1983. None of the facts which I have just recited were denied.

5. The trial 'was to a large extent conducted on paper. There was one oral Crown witness who gave evidence peripheral to the main issue. There was. also before the trial judge a cautioned statement, uncontested, taken from the applicant on the 18th March 1985. The applicant gave evidence.

6. Paper trials, except in the most simple circumstances, are never desirable. They caused complications both at the hearing and subsequently and this is a classic example. This Court has condemned the practice before and would wish to reiterate its condemnation yet again. Counsel should be very careful of the circumstances in which they asked a judge to try issues on admitted facts and judges should be wary in the extreme of acceding to such an application.

7. In arguing the application for leave to appeal against conviction, Mr. Westbrook who appeared for the applicant in this Court, advances one main ground: that that conviction was unsafe and unsatisfactory. He particularizes four specific matters which, he submits, should bring us to the conclusion that the verdict cannot stand. These are:

It is counsel's contention that as the knowledge and belief of the applicant was the major aspect of the trial, these four matters Brought the trial judge not only to a wrong conclusion as to that knowledge and belief but further took away from the applicant a proper consideration of the somewhat flimsy defence raised by him. Dealing with those points in a reverse order, the trial judge had stated on the matter of "mortgage" :

"I also disbelieve the accused's story about trying to get a mortgage the white car he bought. For on his own story he paid first $4,500 for it in cash, and then he paid another $8,000 in cash for its repair."

I find it difficult, as indeed as did Mr. Newall who appeared for the Crown, to fully understand what was intended to be conveyed in this passage. It seems to me that the fact that the applicant paid $12,500 in all for the white crashed car bears little relation to any attempt the applicant might have made in the course of his trade as a garage owner to obtain a "mortgage" as he described it, by which I think him really to mean a form of hire-purchase.

8. As to the hearsay evidence point, this had come from a police constable who had attempted to trace a person. Ah Shing mentioned by the applicant in his cautioned statement as being a person who had repaired the white crashed car for him. As this repair took place some 18 months before the tracing attempt, if the applicant were to be believed, the relevance of this piece of evidence seems somewhat remote. The constable had gone to the area indicated by the applicant and had asked in several garages, "Is a person Ah Shing working here? Was a person Ah Shing ever working here?" He was given the reply by those to whom he put these questions "No person called Ah Shing."

9. In evidence, the applicant had said that he had been unable to locate Ah Shing of whom he seemed to know very little. The trial judge commented as follows:

"But P.W.1, who took the accused's statement, was also unable to locate Ah Shing and he was told that there was no one with that name in any garage in the vicinity."

This was an additional point which caused the trial judge to disbelieve the applicant's story relating to Ah Shing, As I have said, the evidence of the searching constable was of little assistance to the Crown and should have added little weight to any disbelief engendered in the mind of the trial judge as to Ah Shing's existence.

10. The next point has somewhat greater moment. For what had happened was this: It was the applicant's defence that he had sent the white crashed car CZ8019 for repairs. to Ah Shing. About, and I stress that word, three weeks later, he received back a car with the same registration CZ8019 but now coloured red. He denied all knowledge that this was the stolen red car BH8188. As to the alteration of the chassis number, he suggested that Ah Shing must in some fashion have transferred the engine of BH8188 into the crashed car CZ8019. In his cautioned statement, he was asked what was the colour of the car when he collected that car from Ah Shing. His answer was "Crimson". He said that he towed the car away and tie was then asked the following questions:

11. Having concluded his examination-in-chief with the statement "I suggested it should be resprayed red", the applicant was then asked in cross-examination questions as to that passage in his statement to which I have just referred. It was suggested to him that his answers in the statement were different to his answers in Court and he was asked which version was true. To that question, he made the following reply:

                "The nature of questions is different.

I was asked if any extraordinary difference in the crashed white car. No difference."

He accepted that he had not told the police that he himself had suggested that the car be sprayed red. The trial judge of this apparent conflict said:

"       When the accused was first questioned by the police, he claimed that he collected the car from Ah Shing at dusk, and that he did not look at it carefully then or appreciate that it had been repainted red.

 

        However he changed this part of his story, when he gave evidence, and he testified that he saw it was red when he collected it. In cross-examination he admitted this was a different version from what he told the police, but be claimed that it was not an extraordinary difference; that he never thought it necessary to tell the police officer about his suggestion to respray the car red, and that this was because he was never asked such a question!

 

        I cannot believe this. Indeed seeing that this red car had never been white in colour, the story cannot be right."

12. With respect to the trial judge, the passage in the cautioned statement at its very highest could be considered ambiguous. In my view, there is not a direct contradiction as between that said in the statement and the evidence given at the trial. The emphasis of the statement question appears to me to be that when sent the car was white, when collected it was red and did he find this red collected car with any other differences from the white car. The answer which the applicant gave did not amount to a statement that he did not "appreciate that it had been reprinted red". As a ground for disbelief of the defendant's denial of knowledge, which as I have said was the main issue in the case, it is not a reason which commends itself.

13. The major issue, however, is that relating to the misdirection on the evidence. The Summary of Facts, which became, with amendments, the agreed facts and the case for the Crown, after reciting the evidence that the applicant had taken possession of the white crashed car CZ8019 on the 4th October, went on in a new paragraph:

It will be remembered that the prosecution themselves had proved, by way of agreement, that the registration documents for CZ8019 in the name of Cheung Chiu Yee were issued on the 20th October. The trial judge at various parts of his Reasons for Verdict, starting on the second page, made reference to:

"On about 6/10/83 "

as the date upon which PW3 had been shown the red CZ8019. He referred to the prosecution case as being that this was the stolen car with the chassis number altered and with the new number plates placed upon it, plates which had come from the wrecked white car"sold to the Defendant's garage 2 days earlier." In coming to his conclusion as to the guilt of the applicant, he again made reference to the two-day gap as between the 4th October when the white crashed car came into the possession of the applicant and the 6th October when the red car with the white crashed car's number plate was seen in the possession of the applicant, and he concluded:

"In view of all this, and particularly the switching of the number plates, between 4th and 6th October, I infer that when he was handling the stolen car at that time, he knew it was stolen, and the Prosecution have satisfied me so that I am sure of this inference beyond all reasonable doubt."

These references to, and the great reliance upon, the two-day gap were clearly misdirections. There was no mention in all in the evidence before the trial judge of the date "the 6th October". This highlights the danger of this form of paper trial. There is a clear addition by the trial judge to the evidence which that evidence did not justify. If anything the actual evidence went to show that the borrowing of the identity card would have been somewhere around the 20th October, the time the registration documents were issued. Had the two-day gap been in evidence, and Mr. Westbrook indeed concedes this, then there would be difficulties in arguing this application.

14. There is considerable suspicion but had the judge not misconstrued the agreed facts on a point which was evidently of pivotal importance to his conclusion, he might well have hesitated to come to a conclusion of guilt. Without this mistaken gloss the applicant's explanation has a substantially greater claim to credibility.

15. In these circumstances, this conviction cannot stand. We do not think that this is a proper case in which to order a re-trial. The application for leave to appeal will be granted. The hearing of the application treated as the hearing of the appeal. The appeal allowed and the conviction quashed.