HKSAR v. CHUNG MIU MAN

DCCC 166/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 166 OF 2012

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BETWEEN

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Reasons for Verdict

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Introduction

1.  The defendant is charged with the offence of theft, contrary to section 9 of the Theft Ordinance, Cap.210. The Particulars of Offence read:

“CHUNG Miu-man, on the 14^th day of November, 2011, at Lot 163, DD79, Ping Yeung, Ta Kwu Ling, New Territories, in Hong Kong, stole 3 drums of electric cable, the property belonging to Gammon Construction Ltd.”

2.  The prosecution called five prosecution witnesses, namely Mr Aguilar Leo Dilema (“PW1”), Mr Ali Tariq (“PW2”), Mr Yuen Kwok Wah (“PW3”), Mr Leung Yiu Kwok Gabriel (“PW4”) and Mr Chan Kwok Yin (“PW5”). A number of exhibits, including a set of Admitted Facts (Exhibit P5) and the video-recording of the cautioned interview with the defendant conducted on the evening of 17 November 2011 (Exhibit P3), were produced. It is stated in the Admitted Facts that the defendant has a clear record. I bear that in mind when I analyze the defendant’s evidence and this case.

3.  The defendant testified. A set of nine photographs was produced collectively as Exhibit D1. No other defence witness was called. The gist of the defence case is that the defendant did remove 3 drums of electric cable (the “Subject Cable”) from the warehouse of Gammon Construction Limited (“Gammon”) situated at Lot 163, DD79, Ping Yeung, Ta Kwu Ling, New Territories (the “Warehouse”), that he removed the Subject Cable from the Warehouse for the purpose of lending it to his friend PW5 who promised to return the same to the defendant within one to two days, and that the defendant did not have the intention of permanently depriving Gammon of the Subject Cable.

Prosecution’s case

4.  At the material time, the defendant was a site supervisor of Gammon whilst PW1 worked for Gammon as a construction worker.

5.  At about 9 am on 14 November 2011 while PW1 was working at one of Gammon’s construction sites located in North Point, the defendant asked for PW1’s assistance to go with him to the Warehouse to cut cables. PW1 agreed to help. The two of them therefore went to the Warehouse.

6.  The defendant and PW1 arrived at the Warehouse on the same morning. PW1 helped moving the cables to outside and then cutting the cables to the length of 20 metres. PW1 also saw 3 drums of electric cable, amongst others, being placed 5 metres away from the entrance of the Warehouse. Meanwhile, there was a crane inside the Warehouse. PW1 saw the defendant ask the controller of the crane to move those 3 drums of cable to the entrance.

7.  Later that day, PW1 saw a truck with a closed cargo compartment (the “Truck”) arrived at the Warehouse. There were 2 unknown men on board the Truck. The Truck was not Gammon’s vehicle. The defendant instructed PW1 to help the 2 unknown men load the Subject Cable originally kept inside the Warehouse onto the Truck. After the Subject Cable was loaded onto the Truck, the 2 unknown men drove the Truck away. The defendant and PW1 also left the Warehouse and returned to the construction site in North Point.   

8.  PW2 and PW3 were respectively the watchman and the keeper of the Warehouse. On 14 November 2011, PW3 was not working at the Warehouse, thus leaving PW2 behind guarding the Warehouse. At about 3 pm on 14 November 2011, PW2 saw the Truck carrying 2 unknown men enter the Warehouse. The Truck bore the vehicle registration number RA1688. It was PW2 who, upon the defendant’s request, opened the gate for the Truck. PW2 saw that the Subject Cable was loaded onto the Truck. Thereafter, the Truck was driven away from the Warehouse. PW2 made a record on the security log book (Exhibit P1) stating that the Truck entered the Warehouse at 15:00 hours and departed from the Warehouse at 15:16 hours. At no time did the defendant produce any delivery order for the Subject Cable. PW2 did not ask for it because he knew the defendant was a supervisor of Gammon and that the defendant had the key to open the main gate of the Warehouse.

9.  On 15 November 2011, PW2 reported to PW3 that on 14 November 2011, the defendant and two men loaded the Subject Cable onto a vehicle and the defendant did not produce any delivery note for the Subject Cable. Upon learning of the aforesaid, PW3 made a phone call to the defendant and asked the defendant where he had sent the Subject Cable. Over the phone, the defendant told PW3 that he had sent the Subject Cable to Gammon’s construction site in Wan Chai (the “Wan Chai Site”). At around 10:30 am on 15 November 2011, the defendant went to the Warehouse, filled in and signed on the Gate Pass (In/Out) dated 14 November 2011 (Exhibit P2) in front of PW3. The defendant was referring to the contents in Exhibit P1 when he wrote down “RA1688” in Exhibit P2 as the vehicle’s registration number.  

10.  PW4 was the senior site supervisor of Gammon. Having learnt that the defendant had claimed that the Subject Cable was sent to the Wan Chai Site, PW4 went to the Wan Chai Site to look for the Subject Cable at 5 pm on 16 November 2011 but none could be located there. At around 6:30 pm on the same day, the defendant also arrived at the Wan Chai Site. The defendant and PW4 looked for the Subject Cable inside the Wan Chai Site but in vain. The defendant then told PW4 that he had lent the Subject Cable to his friend and he agreed to return the Subject Cable to Gammon in 4 to 6 weeks.

11.  Mr Choi Kwong Fai (“Mr Choi”) was the executive officer of Gammon. His duty was to buy construction materials and he was also responsible for the logistics management for Gammon. On 17 November 2011, Mr Choi discovered that the defendant had sent him an email at 7:39 pm on 16 November 2011. In that email, the defendant said that he had lent 3 drums of cables to the Gragagrs Company, and that he would return the cables to Gammon. Upon the instruction of Gammon, Mr Choi reported the matter to the police.

12.  No one of Gammon has ever authorized the defendant to lend any of Gammon’s property to any third party. No authorization has ever been given to the defendant to lend the Subject Cable to anyone. According to Gammon’s rules, Gammon’s property, including all construction materials, is to be conveyed between Gammon’s construction sites and warehouses by Gammon’s vehicles only.

13.  At 6:10 pm on 17 November 2011, PC 6861 arrested the defendant at Gammon’s site in North Point. Under caution, the defendant said that he had no intention to steal the Subject Cable, and that he just lent the same to his friend.

14.  The defendant took part in a cautioned video-recorded interview voluntarily on 17 November 2011 from 21:33 hours to 22:06 hours (the “VRI”). In the VRI, the defendant said, inter alia, that:

(i) Under verbal caution, he had said, “I do not intend to steal the three rolls of cable of the company. I just gave the three rolls of cable to a friend for urgent use.”

(ii) The name of his friend was Chan Kwok Yin, i.e. PW5.

(iii) He had lent the Subject Cable to PW5 because PW5 was in urgent need of the Subject Cable.

(iv) The Subject Cable belonged to Gammon. When the defendant took the Subject Cable, he had not obtained Gammon’s consent.

(v) On 14 November 2011, the defendant went to the Warehouse to do some work. After lunch time, he received a call from PW5 who said that he wanted to borrow some cables urgently. On that occasion, PW5 mentioned that he would return the cables to the defendant in 4 to 6 weeks. The defendant agreed to help PW5 and loaded 3 rolls of cables of the total length of 600 metres onto a vehicle which was driven to PW5’s place.

(vi) Right before his arrest, he had discussed with PW5 about returning the cables to Gammon. He had telephone conversations with PW5 on the evening of 16 November 2011 two to three times asking him to arrange for the supplier to return the cables to Gammon as soon as possible.

15.  PW5 denied ever having borrowed the Subject Cable from the defendant. 

16.  The Subject Cable has not been recovered yet.

17.  The value of the Subject Cable was HK$337,755, when new.

Defence case

18.  The defendant testified that he came to know PW5 back in 2007/2008 when both of them worked in Macau. They worked together in Macau for about 18 months until around November 2008 before the financial tsunami. After that, PW5 helped the defendant find a job at the Hong Kong International Airport. After PW5 had found the defendant a job at the Hong Kong International Airport, the defendant’s relationship with PW5 became very good. The defendant trusted PW5 very much and treated PW5 as his brother and benefactor. When the defendant was in financial difficulty, PW5 lent him money.

19.  After the defendant had joined Gammon in February 2009, there were many occasions where they lent/borrowed tools to/from each other. For example, the defendant had lent Gammon’s fluorescent tubes and testers to PW5, and PW5 had lent cable brackets to the defendant. PW5 had returned the fluorescent tubes and testers he borrowed.

20.  On 14 November 2011, the defendant and PW1 arrived at the Warehouse at about 11:30 am to do some work. At approximately 3 pm that day, the defendant received a phone call from PW5 who said that the electrical system of his construction site was in trouble and he needed 600 metres of old 95 mm cables for urgent use. In that telephone conversation, PW5 promised the defendant that he would return the cables to the defendant in one to two days and he would send the cables to the Wan Chai Site. As PW5 had helped the defendant before and the defendant treated PW5 as his benefactor, the defendant agreed to lend the cables to PW5 without hesitation. The defendant agreed to do so because he considered PW5 a very trustworthy person and he trusted that PW5 would return the cables to him.

21.  Soon after the telephone conversation between the defendant and PW5, a vehicle arrived. The defendant arranged for the Subject Cable to be loaded onto that vehicle. After the vehicle had left the Warehouse, the defendant called PW5 to confirm that PW5 had already received the Subject Cable.  

22.  The defendant testified that he had not obtained any prior approval from any of his superiors about the lending of the Subject Cable; but he believed that his superiors would have allowed him to lend the Subject Cable. The defendant testified that he did not have the intention of permanently depriving Gammon of the Subject Cable. The defendant testified that from his 10 to 20 years working experience at construction sites, there were unwritten rules for lending construction materials out, and that so long as one could trust the borrower, one could make the decision on his own discretion. In cross-examination, the defendant testified that because of the trade practice and because he trusted PW5 so much, even if the value of the materials PW5 asked to borrow was as high as $1 million and although the defendant was not the owner of those materials, the defendant would still lend it to PW5.

23.  On the morning of 15 November 2011, the defendant went to the Warehouse again. On that occasion, PW3 gave the defendant a blank Gate Pass (In/Out) to fill in. The defendant therefore filled in the particulars of the Subject Cable he removed on 14 November 2011. The Gate Pass (In/Out) the defendant filled in is Exhibit P2. When the defendant filled in Exhibit P2, he had called PW5 who told the defendant that he (PW5) would return the three drums of cable to the Wan Chai Site.

24.  The defendant went to the Wan Chai Site at about 6:30 pm on 16 November 2011. He went there because PW4 wanted to check whether three drums of cable were in the Wan Chai Site. The defendant and PW4 toured around in the Wan Chai Site to look for the three drums of cable. At that time, the defendant still believed that PW5 would return the cable to the Wan Chai Site. However, they failed to find the three drums of cable in the Wan Chai Site. After the defendant failed to find the cable, he made a number of calls to PW5 but they were not answered or they were diverted to voicemail. Eventually PW5 answered the defendant’s call once. During that telephone conversation, PW5 had 180º switch in his attitude – PW5’s attitude turned bad and he became evasive. At that stage, the defendant realized that what PW5 had told him was not true. The defendant realized that he was in a trap. He then told PW4 that he had lent the Subject Cable to his friend.

25.  Thereafter, the defendant had contacted cable suppliers to see if they had stock to supply to PW5 as soon as possible so that PW5 could in turn return the cable to Gammon as soon as possible. The cable suppliers replied that it would take 4 to 6 weeks for the supply of the cable. The defendant was unable to discuss that with PW5 as the defendant failed to reach PW5 since his telephone conversation with PW5 on 16 November 2011.

Analysis of evidence

26.  I bear in mind that the defendant has a clear record. I have the following observations on the defendant’s evidence:

(i) (a) The defendant testified in examination-in-chief that in the telephone conversation with PW5 at approximately 3 pm on 14 November 2011 when PW5 asked to borrow 600 metres of cables, PW5 had said that he would return the cables to the defendant in one or two days. During cross-examination, the defendant testified that at about 8:20 am on 15 November 2011, he had contacted PW5 who told the defendant that the cables would be sent to the Wan Chai Site soon afterwards. The defendant testified that he reckoned that the cables would be sent to the Wan Chai Site by 6 pm on 15 November 2011.

(b) On the other hand, in the VRI, the defendant said that when PW5 called the defendant and asked to borrow some cables for urgent use, PW5 said he would return the cables to the defendant in 4 to 6 weeks: paragraphs 347 and 348 of Exhibit P3B.

(c) I find that the defendant’s testimony regarding PW5’s promise on when to return the cables (i.e. in one or two days) inconsistent with the defendant’s answer in the VRI (i.e. 4 to 6 weeks).

(ii) (a) At trial, the defendant testified that on 16 November 2011, he had called PW5 many times but PW5 only answered the defendant’s call once.

(b) In the VRI, the defendant said that on the evening of 16 November 2011, he had spoken with PW5 on the phone for 2 or 3 times: paragraphs 332 and 334 of Exhibit P3B.

(c) The defendant’s testimony regarding how many times he had spoken with PW5 on the phone on 16 November 2011 is inconsistent with the defendant’s answer in the VRI.

(iii) (a) In the VRI, the defendant said that in those 2 or 3 times telephone conversations with PW5 on 16 November 2011, the topic they discussed was mainly about asking PW5 to arrange for the supplier to return the cables to Gammon as soon as possible: paragraph 340 of Exhibit P3B.

(b) At trial, the defendant testified that on the only one time he managed to talk to PW5 on the phone on 16 November 2011, PW5 had 180º switch in his attitude – PW5’s attitude turned bad and he became evasive. At that stage, the defendant realized that what PW5 had told him was not true. The defendant realized that he was in a trap. The defendant had an argument with PW5 in that telephone conversation. The defendant did not testify that in that telephone conversation with PW5, they had discussed about arranging for a supplier to return the cables to Gammon as soon as possible.

(c) The defendant’s testimony in this respect is also inconsistent with his answer in the VRI.

(iv) (a) In his evidence-in-chief, the defendant testified that he had lent Gammon’s fluorescent tubes and testers to PW5 many times.

(b) During cross-examination, when asked about how many times he had lent the fluorescent tubes and testers to PW5, the defendant said “once per item”. I take it that the defendant had lent Gammon’s fluorescent tubes to PW5 once, and lent Gammon’s tester to PW5 once.

(c) The defendant’s evidence-in-chief that he had lent Gammon’s fluorescent tubes and testers to PW5 many times is inconsistent with his evidence in cross-examination that he had lent fluorescent tubes and testers to PW5 two times in total.

(v) (a) In his evidence-in-chief, the defendant said that it was October 2011 when PW5 borrowed Gammon’s testers from the defendant.

(b) In cross-examination, the defendant said that PW5 borrowed Gammon’s fluorescent tubes and tester in June 2011.

(c) The defendant’s evidence-in-chief as to when PW5 borrowed Gammon’s tester from the defendant is inconsistent with his evidence in cross-examination.

I bear in mind that the defendant has a clear record. However, in light of the aforesaid observations on the defendant’s evidence, I do not find the defendant credible or reliable. I refuse to accept the defendant’s evidence, including his evidence that there were unwritten rules for lending construction materials out to a third party without the approval from the owner.

27.   Despite I have refused to accept the defendant’s evidence, the prosecution still has the burden to prove beyond all reasonable doubts all the requisite elements required in the charge. In this connection, I have the following comments on the prosecution witnesses:

(i) Cross-examinations on PW1, PW3 and PW4 did not reveal anything which rendered their evidence incredible or unreliable. I find PW1, PW3 and PW4 truthful and honest witnesses. I accept their evidence.

(ii) (a) In examination-in-chief, PW2 testified inter alia that on the afternoon of 14 November 2011, he had asked the defendant where he was going to take the Subject Cable to. The defendant said “Wan Chai”. The defendant also told PW2 that Gammon’s vehicle was busy. In this connection, I note PW2’s evidence that he came to Hong Kong in 1986 and was able to speak some Cantonese.

(b) During cross-examination, it was put to PW2 that the aforesaid conversation between PW2 and the defendant was not recorded in PW2’s witness statements. It was put to PW2 that such conversation never took place. PW2 disagreed. PW2 testified that he had told the police about the aforesaid conversation. PW2 testified that he was the security guard and he had the right to ask the defendant to where the goods were to be taken.

(c) Having carefully considered PW2’s evidence, I am prepared to accept PW2’s explanation as to the absence of the aforesaid conversation in his witness statements. I find PW2 credible and reliable. I accept PW2’s evidence.

(iii) (a) Despite PW5 testified in his evidence-in-chief that during the week commencing 14 November 2011 (a Monday), the defendant had not called him, PW5 corrected himself in his very first answer during cross-examination and testified that the defendant contacted him at about 6 pm on 16 November 2011. I do not find this inconsistency, which was corrected by PW5 almost immediately, material to affect PW5’s credibility or reliability.

(b) (1) During cross-examination, it was revealed that PW5 had stated in his first witness statement made at 14:20 hours on 21 November 2011 (the “1^st Statement”) that the defendant had called PW5 on 14 November 2011 when PW5 was on his way to attend a class at the University of Hong Kong. PW5 testified that when he gave the 1^st Statement, he was under the mistaken impression that he had attended the class at the University of Hong Kong on 14 November 2011, hence he stated in the 1^st Statement that the defendant had called him on 14 November 2011. PW5 continued and testified that it was not until later on on 21 November 2011 (after he had given the 1^st Statement) he recalled that the class originally scheduled for 14 November 2011 was cancelled, and that he did not attend the class on 14 November 2011 but on 16 November 2011. PW5 informed the police of such mistake on the following day, i.e. 22 November 2011. PW5 also testified that the mistake was rectified in his second witness statement.

(2) During PW5’s cross-examination, it transpired that PW5 stated in the 1^st Statement that after attending the class on 14 November 2011, PW5 had telephone conversations with the defendant for two to three times. PW5 testified that he had said so in the 1^st Statement because at the time he gave the 1^st Statement, his mobile phone did not have the call record showing the dates and times of calls. PW5 testified that it was not until he had downloaded an “App” to his mobile on the evening of 21 November 2011 (after he had given the 1^st Statement) that he found out that he had one telephone conversation, not two to three times as stated in the 1^st Statement, with the defendant after class on 16 November 2011.

(3) It also transpired during PW5’s cross-examination that PW5 stated in the 1^st Statement that the defendant had called PW5 on the morning of 15 November 2011. PW5 testified that the correct date and time should be the morning of 17 November 2011. PW5 explained that when he was giving the 1^st Statement, he remembered that after the defendant had spoken to PW5 on the phone on the evening when PW5 had to attend a class at the University of Hong Kong, the defendant had called him the following morning. As PW5 was, when he was making the 1^st Statement, under the mistaken impression that he attended the class on 14 November 2011, he stated in the 1^st Statement that it was the morning of 15 November 2011 (the day after 14 November 2011) the defendant had called PW5. PW5 testified that he had already rectified such mistake in his second witness statement that it was on the morning of 17 November 2011, the day after 16 November 2011, he received the defendant’s phone call again.

(4) PW5 confirmed during cross-examination that he had stated in the 1^st Statement that the defendant had also called him on the evening of 17 November 2011 but PW5 did not answer the defendant’s calls. PW5 testified that the defendant did call him on the evening of 17 November 2011, and that there was no mistake in the 1^st Statement in this respect.

(5) PW5 also confirmed during cross-examination that on the evening of 19 November 2011, PW5’s friend CK Chung called telling PW5 that the defendant had been detained by the police for 48 hours. The defence counsel did not put to PW5 that PW5 also made a mistake in the 1^st Statement in this respect.

(6) From PW5’s evidence during cross-examination, it can be seen that PW5 did make the following mistakes in the 1^st Statement:

· PW5 mistakenly stated that the defendant called him on 14 November 2011;

· PW5 mistakenly stated that after attending the class at the University of Hong Kong on 14 November 2011, he had two to three telephone conversations with the defendant; and

· PW5 mistakenly stated that the defendant called him on the morning of 15 November 2011.

Nonetheless, PW5 testified that he had informed the police of those mistakes on 22 November 2011 and those mistakes were rectified in PW5’s second witness statement. I accept PW5’s explanations as to how he had made those mistakes in the 1^st Statement. In light of PW5’s explanations as to how he had made those mistakes in the 1^st Statement and in light of the fact that those mistakes were rectified in PW5’s second witness statement, I do not think those mistakes affect PW5’s credibility or reliability.

(c) During cross-examination, it was revealed that in the 1^st Statement, PW5 stated that PW5’s construction site also used the cables in question but it did not fit the progress because the works there (PW5’s construction site) were about to complete. The defence counsel put to PW5 that the reason why PW5 knew the cables in question could be used at PW5’s construction site was because the Subject Cable was in the hands of PW5’s men. PW5 disagreed. PW5 testified that the Singaporean supplier of that type of cables had once made a wrong delivery of that type of cables to PW5’s company when the same should have been delivered to Gammon. Because of the wrong delivery of that type of cables on that occasion, PW5 knew that Gammon had that type of cables. In closing submissions, the defence counsel submitted that:

“The reality is PW5 knew too much of the subject matter (i.e. cables) to be innocent:

· he knew these cables were from Singapore;

· he knew these cables had been previously sent to his site by mistake.

Submit: Unless the actual goods end up in his men’s hand, PW5 won’t know they were the previously misplaced ones.”

I have carefully considered PW5’s evidence and the closing submission by the defence counsel. I do not agree with the defence counsel’s closing submission in this respect. In this connection, Mr Choi reported the case to the police on 17 November 2011. The defendant in the VRI also mentioned the specifications of the Subject Cable. PW5 made the 1^st Statement on the afternoon of 21 November 2011. I am sure by the time when the police made enquiries with PW5, they must have mentioned the specifications of the Subject Cable to PW5. I am not convinced that PW5’s knowledge of the specifications of the Subject Cable renders PW5’s evidence suspicious, incredible or unreliable. As PW5 is someone who has worked in the same industry for a number of years, it is not surprising or suspicious that once the specifications of the Subject Cable were made known to him, he was able to tell that the Subject Cable came from a Singaporean supplier. I also do not find anything suspicious about PW5’s evidence that the Singaporean supplier had once made a wrong delivery of that type of cables to PW5’s company when the same should have been delivered to Gammon. In short, I do not find PW5’s knowledge of the specifications of the Subject Cable or his knowledge of the origin of the Subject Cable suspicious.

(d) Having carefully considered PW5’s evidence and the closing submissions by the defence counsel in relation to PW5’s evidence, I am of the view that PW5 is an honest and truthful witness. I find his evidence credible and reliable. I accept PW5’s evidence.

(iv) The defendant’s statements contained in the VRI are mixed statements. In light of my aforesaid observations on the defendant’s inconsistencies between his testimony and his answers in the VRI, I attach no weight to the exculpatory statements contained in the VRI. In particular, I attach no weight to the defendant’s statement that he did not intend to steal the Subject Cable, or that the Subject Cable was lent to PW5. I also attach no weight to the defendant’s answer under verbal caution stated in paragraph 13 of the Admitted Facts. I attach full weight to the inculpatory statements contained in the VRI.

The law

28.   Section 2(1) of the Theft Ordinance provides that a person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

29.   In determining whether the defendant was acting dishonestly, I bear in mind the principle laid down in R v Ghosh [1982] QB 1053.

30.   I also bear in mind the provision in section 3 of the Theft Ordinance regarding the term “dishonestly”. As I have already refused to accept the defendant’s testimony and his exculpatory statements contained in the VRI, there is no factual basis for the defendant to rely on section 3(1) of the Theft Ordinance.

31.   Section 4(1) of the Theft Ordinance provides that any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

32.   As the defendant admitted that the Subject Cable belonged to Gammon: paragraph 1 of the Admitted Facts (Exhibit P5) and the VRI (Exhibits P3 and P3A), I find that the Subject Cable was property belonging to Gammon.

33.   With regard to the requisite intention, section 7(1) of the Theft Ordinance provides that a person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating if, but only if, the borrowing or lending of it is for a period and in circumstances making it equivalent to an outright taking or disposal. In HKSAR v Chan Chin Hung Anders and another CACC 163/2003, the Court of Appeal said:

“83. The effect of the English equivalent to section 7 of the Theft Ordinance (section 6 of the Theft Act, 1968) was considered in R v Fernandez [1996] 1 CrAppR 175. The English Court of Appeal decided, as a matter of general interpretation, that the section should not be given a restricted interpretation when saying (at p. 188):

‘In our view, section 6(1), which is expressed in general terms, is not limited in its application to the illustrations given by Lord Lane CJ in Lloyd [1985] 81 CrAppR 182. Nor, in saying that in most cases it would be unnecessary to refer to the provision, did Lord Lane suggest that it should be so limited. The critical notion, stated expressly in the first limb and incorporated by reference in the second, is whether a defendant intended ‘to treat the thing as his own to dispose of regardless of the other’s rights’. The second limb of subsection (1), and also subsection (2), are merely specific illustrations of the application of that notion. We consider that section 6 may apply to a person in possession or control of another’s property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss.’”

Discussion

34.   It is a rule of Gammon that Gammon’s property, including all construction materials, is to be delivered to and from between Gammon’s construction sites and warehouses by Gammon’s vehicle only: paragraph 12 of the Admitted Facts. Using a non-Gammon’s vehicle, the defendant removed the Subject Cable, property belonging to Gammon, from the Warehouse in the afternoon on 14 November 2011 without having obtained any prior approval/consent from Gammon or any of the defendant’s superiors and without leaving any note to PW3 informing PW3 of the removal of the Subject Cable. According to paragraph 3 of the Admitted Facts, the value of the Subject Cable was HK$337,755 when new. (Even according to the defendant, the Subject Cable was worth around a hundred odd thousand dollars: paragraph 352 of Exhibit P3A.) According to PW3, when a staff member was to take Gammon’s materials away from the Warehouse, the proper procedure was for that staff member to submit a delivery note recording that certain materials were taken away. Indeed, when PW3 learnt that the defendant had taken away the Subject Cable without producing any delivery order, PW3 chased up the defendant by calling him asking him where he had sent the Subject Cable: paragraph 9 of the Admitted Facts. I note that on 14 November 2011, PW3 was not working at the Warehouse and the proforma delivery note/Gate Pass (In/Out) was not available for the defendant to fill in. However, in light of (i) the aforesaid rule (i.e. use of Gammon’s vehicles only for delivery of Gammon’s property) and procedure (i.e. the submission of a delivery note for record purpose) adopted by Gammon, (ii) the value of the Subject Cable, and (iii) the absence of prior approval/consent from Gammon or the defendant’s superiors to remove the Subject Cable from the Warehouse, one would expect that prior to the removal of the Subject Cable from the Warehouse on the afternoon of 14 November 2011, the defendant would have at least written a note (on a piece of paper) to PW3 recording the taking away of the Subject Cable by the defendant or called one of the defendant’s superiors seeking a prior approval. Indeed, looking at the contents in Exhibit P2, i.e. the Gate Pass (In/Out), I am sure it would only take about 1 minute for the defendant to complete writing a simple note to PW3 on the afternoon of 14 November 2011 recording his taking away of the Subject Cable. From the defendant’s failure to do so, I draw an irresistible inference that he was then dishonestly assuming the rights of Gammon, the owner of the Subject Cable. Indeed, the defendant did not make the initiative to inform PW3 or the defendant’s superiors that he had taken away the Subject Cable – the defendant did not tell PW3 that he had sent the Subject Cable to the Wan Chai Site until PW3 called the defendant and asked the defendant where he had sent the Subject Cable: paragraph 9 of the Admitted Facts.

35.  In light of my aforesaid observations on the defendant’s conduct and/or omission in the Warehouse at the material time, I also find that on the afternoon of 14 November 2011 when the defendant had the Subject Cable driven away from the Warehouse by a non-Gammon’s vehicle, the defendant intended to treat the Subject Cable as his own to dispose of regardless of Gammon’s rights. In light of section 7(1) of the Theft Ordinance and the English Court of Appeal’s interpretation of section 6 of the Theft Act 1968 which is the equivalent to section 7 of the Theft Ordinance in R v Fernandez [1996] 1 Cr App R 175, I find beyond all reasonable doubt that at the material time, the defendant had the intention of permanently depriving Gammon of the Subject Cable.   

36.  I have already refused to attach any weight to the exculpatory statements contained in the VRI. In particular, I refused to accept the defendant’s exculpatory statement that the Subject Cable was removed from the Warehouse for the purpose of lending it to PW5. I find that when the defendant:

(i) told PW3 that he had sent the Subject Cable to the Wan Chai Site and filled up Exhibit P2 stating the Subject Cable was delivered to the Wan Chai Site (paragraph 9 of the Admitted Facts);

(ii) told PW4 that the defendant had lent the Subject Cable to his friend and he agreed to return those cables to Gammon in 4 to 6 weeks (paragraph 10 of the Admitted Facts); and

(iii) sent an email to Mr Choi at 7:39 pm on 16 November 2011 saying that he had lent 3 drums of cables to Gragagrs Company and that the defendant would return the cables to Gammon (paragraph 11 of the Admitted Facts),

the defendant was just trying to cover up the fact that he had stolen the Subject Cable at the Warehouse from Gammon on the afternoon of 14 November 2011.

Conclusion

37.   In light of the aforesaid analysis, I find that the prosecution has proved beyond all reasonable doubt all requisite elements required in the charge. I therefore find the defendant guilty of the charge.