HKSAR v. YEUNG AH LUNG AND ANOTHER

CACC 506/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 506 OF 2003

(ON APPEAL FROM DCCC 775 OF 2003)

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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):

Introduction

1. On 20 April 2003 these two applicants were convicted of various offences in the District Court by HH Judge Line and they now seek leave to appeal against certain of those convictions.

2. The facts in brief are these. A company in Hong Kong called Intel Semiconductor Ltd entrusted DHL, the couriers, to convey a large quantity of central processing units ("CPUs") to Shenzhen, but there took place on 6 January 2003 a robbery in which the driver of the lorry due to convey the goods was overpowered and the goods were stolen in Hong Kong. The applicants were apprehended on the Mainland and sent to Hong Kong and arrested, and they made statements to the authorities which constituted the sole evidence against them.

3. The first applicant, D1 at trial, said that he had been asked by one Ah Fai to smuggle the CPUs from Hong Kong to Shenzhen for a reward of $60,000 and that he then hired D2 (the second applicant) to assist him and told Ah Fai that he had done so. The goods were duly taken to the Mainland and it transpired, according to D1's account, that Ah Fai had trouble selling the goods and D1 said he would assist. So he went to Shenzhen and there sold the CPUs that had been smuggled and these sales were effected by three separate transactions.

4. In his statement to the police, D1 said that it was only when he read an article in a daily newspaper that he became aware that the goods were stolen and that this knowledge came to him after the first of the three sale transactions. He said further that he received RMB 1.3 million in cash from Ah Fai in Shenzhen for his work and he asked D2 to remit that sum to Hong Kong which he then used in Hong Kong for a variety of purposes.

5. In his statement, D2 said that he was hired by D1 to smuggle goods and he also claimed that it was only after the goods had successfully been smuggled to the Mainland that he came to learn about the robbery. He admitted that in January he was instructed to remit about HK$1.8 million to Hong Kong and he did so and gave the sum in cash to Ah Fai. Two days later he was asked by D1 to send RMB1.6 million to Hong Kong and he then gave cash in that sum to D1 in Hong Kong. A few days later, and this by a time when he appreciated that the goods were stolen, he received HK$1.26 million as his own reward for smuggling the goods and for his help in remitting funds to Hong Kong and he remitted part of this sum to Hong Kong. He said however that it was only towards the end, when he received the sum, that he thought that the goods might have been stolen.

The charges

6. These facts originally resulted in four charges but the fourth charge as we shall see, was amended, and a fifth was added:

(1) The first charge was directed against both applicants and was a charge of handling stolen goods, a charge directed at the assistance given in Hong Kong when the goods were to be smuggled across the border. But because the evidence showed no more than that the knowledge of the theft only came after the goods had been smuggled across the border, the judge acquitted both applicants of that charge.

(2) Charge 2 was a charge against D1 only, and it was that he dealt with property knowing or having reasonable grounds to believe it to be the proceeds of an indictable offence. This related to the receipt by him of just over HK$1 million at a time when he knew or believed the money to be the proceeds of the robbery. He was convicted of this charge and sentenced to a term of two years' imprisonment. There is no application in relation to this conviction or sentence.

(3) Charge 3 related to the first sum of money which D2 was asked to remit to Hong Kong and it was a charge of dealing in monies which he knew or had reasonable cause to believe were the proceeds of an indictable offence. Because of the limited extent of his admission as to the timing of his knowledge, the prosecution did not invite the court to convict D2 of this offence, and he was therefore acquitted of it.

(4) Charge 4 was proffered against D2 only, and was of dealing in property known or having reasonable grounds to believe represented the proceeds of an indictable offence. The precise conduct to which this charge, as amended, was directed became the subject of the debate during the trial and it is to this amended charge and its particulars that we shall have to return, because in essence it was directed at a payment received by D2 whilst he was on the Mainland, for services rendered in helping to smuggle the goods across the border. D2 was convicted of this offence and he was sentenced to a term of two years' imprisonment for it, and he now seeks leave to appeal against that conviction.

(5) Charge 5 was leveled against both defendants and was added at trial once it was appreciated that, according to the evidence available, it was only after the goods had left Hong Kong that the defendants became aware that the goods which they had helped to smuggle were stolen goods. It charged handling of stolen goods and the particulars of the offence were as follows:

"YEUNG Ah-lung and WONG Kin-kwun [D1 and D2], on a day unknown in January, 2003, in Mainland China, dishonestly assisted in the realization of certain stolen goods stolen in Hong Kong, namely C.P.U.'s for the benefit of a person or persons unknown, knowing or believing the same to be stolen goods."

In respect of this, the fifth charge, D1 was convicted and sentenced to four years' imprisonment, and D2 was acquitted. D1 seeks leave to appeal against this conviction.

The First Applicant

7. There is but one ground of appeal in the case of D1 and it is that the court below did not have jurisdiction to try that case.

8. The question is covered by section 3 of the Criminal Jurisdiction Ordinance, Cap. 461 which provides that:

"(1) For the purpose of this section, "relevant event" (有關事情), in relation to any Group A offence, means any act or omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence.

(2) For the purpose of determining whether or not a particular event is a relevant event in relation to a Group A offence, any question as to where it occurred is to be disregarded.

(3) A person may be guilty of a Group A offence if any of the events which are relevant events in relation to the offence occurred in Hong Kong."

9. By virtue of section 2(2)(a) of the Ordinance, handling stolen property is a Group A offence.

10. Section 24(1) and (2) of the Theft Ordinance, Cap. 210 defines the offence:

"(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so.

(2) Any person who handles stolen goods shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years."

11. The argument which is advanced falls within a narrow compass, and it is that the reference in subsection (2) of section 24 to stolen goods is a reference to the status of the goods and not to an event as defined by the Criminal Jurisdiction Ordinance and Mr Tse, who appears on behalf of both applicants, argues that the court should not apply to section 3 of the Criminal Jurisdiction Ordinance a literal interpretation since to do so would he contends result in an absurdity. We see no absurdity resulting from an application of the plain meaning of the words in section 3. The answer to the question posed in this limb of the appeal seems to us to be perfectly clear.

It is trite that in order to prove the offence of handling stolen goods, the prosecution must first prove that the goods were stolen. The theft of the goods is therefore an event "proof of which is required for conviction of the offence". It is therefore a relevant event, and since in this case it was proved that the goods were stolen in Hong Kong, the court below had jurisdiction to try the fifth charge.

12. Accordingly, the first applicant's application for leave to appeal against conviction is dismissed.

The Second Applicant

13. There are two grounds of the appeal in the case of D2: the first goes to the decision of the judge to admit the evidence of a confession made by D2 to the police in Hong Kong after he had arrived in Hong Kong from across the border and was in the custody of the police at the airport station - it is said that the applicant was wrongly denied access to a barrister before or at the time of the interview and that the judge ought in the circumstances that were demonstrated to have excluded evidence of the confession; and the second ground touches again upon the court's jurisdiction, this time to try the fourth charge. We propose to deal first with the issue of jurisdiction.

Jurisdiction

14. The particulars of the offence were ultimately framed as follows:

"WONG Kin-kwun, on a day unknown in January, 2003, in Mainland China, knowing or having reasonable grounds to believe that property, namely the approximate sum of $1,260,000 Renminbi, in whole or in part directly or indirectly represented the proceeds of an indictable offence in Hong Kong, namely robbery, dealt with the said property."

15. The history of the fourth charge has not been easy to follow. Originally, the particulars read as follows:

"[D2] on the 14th day of January 2003 in Hong Kong, knowing or having reasonable grounds to believe that property, namely the approximate sum of $1,040,000 Hong Kong currency, in whole or in part directly or indirectly represented the proceeds of an indictable offence, namely robbery, dealt with the said property."

Again, to which transaction that charge related or was supposed to relate, has not been easy to determine. In his ex tempore Reasons for Verdict the judge said this:

"... the question arose after the special issue had been decided as to what [the original] Charge 4 meant and the prosecution said that it did not refer to the third and last payment made to the 2nd defendant. It clearly should have done and anyone settling the charge sheet at the beginning of the case, if - and I stress that if - if they had read the interviews fully and properly, would have made sure that was the case.

78. The prosecution then wanted to add a 6th charge. I would not let them do that, I just said amend the 4th charge and that is what has happened. Mr Tse did object and he had my sympathy when he said, 'Why can't they get it right at the beginning and why did it have to come late?' But the fact was he could demonstrate no real prejudice and the requirements of justice, which must be the ultimate test in the end, quite clearly demanded that the case proceed on the general issue on the basis of trying the guilt of the 2nd defendant in relation to the third payment he received, by which time he acknowledged he had the relevant belief that the goods were stolen and represented the proceeds of the robbery." (Tr. p 32R-p 33I).

16. The amendment quite obviously gave rise to a jurisdictional question and we have concluded, as indeed the respondent through Mr Zervos, SC, concedes, that the offence as charged was not amenable to the court's jurisdiction.

17. Section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455 provides as follows:

"A person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person's proceeds of an indictable offence, he deals with that property."

Subsection 25(4) states that:

"In this section and section 25A, references to an indictable offence include a reference to conduct which would constitute an indictable offence if it had occurred in Hong Kong."

Section 2(1) of the same Ordinance defines dealing as follows:

"'dealing' (處理), in relation to property referred to in section 15(1) or 25, includes-

(a) receiving or acquiring the property;

(b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise);

(c) disposing of or converting the property;

(d) bringing into or removing from Hong Kong the property;

(e) using the property to borrow money, or as security (whether by way of charge, mortgage or pledge or otherwise);"

18. The dealing to which the particulars of Charge 4 were directed was a dealing expressly stipulated to be a dealing 'in Mainland China'. That is the actus reus of the offence. The status of the property is but an element of the mens rea: see HKSAR v Wong Ping-shui and Another, (2001) 4 HKCFAR 29, 31, the judgment in which makes the further point, it so happens, relevant to the case of D1 on the issue of jurisdiction, that, by contrast, in the case of handling stolen property "the quality and status of the goods being stolen is ... an element in both the actus reus and the mens rea."

19. There is no statutory provision which renders the offence under section 25 justiciable in Hong Kong on the basis that the indictable offence occurred here. Section 25(4) of the Ordinance does not assist the prosecutor because that is merely a provision in the nature of a double criminality provision and is directed at dealing in Hong Kong with proceeds of an offence committed elsewhere.

20. It follows that the actus reus of the offence as charged occurred wholly outwith the jurisdiction and that there is no mechanism in law by which the acts as particularized are justiciable here.

Consequences

21. Mr Zervos for the respondent then invites this Court to amend the charge or to order the applicant to be retried. Now the judge recognizing the arguability, as he saw it, of the jurisdiction point said in his Reasons for Verdict:

"75. ...I can see however that it is not hopeless to argue to the contrary and if it had been me drafting the amendments to the 4th charge I would not have put it like that. I would have thought it would be quite easy to look at the admissions and frame some particulars that went hand in glove with the admissions and brought the matter back over the border and into the area of safety. The prosecution will not have that; they say it produces problems of duplicity. I disagree, but I am not going to debate it because otherwise it looks like I have become the prosecutor, which leads me to dealing with the question of whether it was fair to allow the amendment to the 4th charge in any event." (Tr. p.32C-I).

22. Mr Zervos suggests a number of possible amendments including one apparently encouraged by the judge but deliberately declined by the prosecutor at trial of amending the charge to allege dealing with proceeds once and after they had been remitted to Hong Kong. That was indeed the obvious charge to have proffered in the first place.

23. We are in the event not attracted to the course which we are invited to take. The prosecution first drew a charge that was not justiciable in Hong Kong and then drew an amended charge that had the same flaw; and did not take up the judge's suggestion of drawing a charge which clearly was within the court's jurisdiction. So Mr Zervos is now faced with the difficult prospect of inviting the court to take the course which was previously offered to the prosecution but declined.

24. In addition to this, we take into account the remaining ground of appeal upon which we have not heard oral argument (since it has not been necessary for the determination of the appeal) although we have studied the written arguments. It is directed at the circumstances of the taking of the statement from D2. The effect of this ground is that the judge erred in the exercise of his discretion whether to admit the inculpatory first statement made by the applicant after he was brought to the airport police station, in that, so the argument goes, the evidence showed that the officers deliberately denied the applicant's access to a lawyer who was trying to see him, and thereby in the circumstances of this case denied the applicant the chance of making an informed choice whether to exercise his right of silence. We have read the testimony of the police officers concerned and of the lawyer who tried persistently to gain access to this applicant, and we have to say that it appears to us that there is very strong evidence to suggest that the police were intent on denying that access. The lawyer was making active attempts to contact his client and the failure to achieve that objective was, it seems to each of us, because the police, whilst being astute not positively to mislead the lawyer as to what was happening and where the client was, were nonetheless so conducting themselves, by withholding information from the lawyer as well as from the applicant himself, which they could easily, and should, have revealed as to deny access. There was no operational or other good reason in this case which would warrant such a course, and although the applicant said that he did not need a lawyer, he said that without knowing that one was wishing to see him. The grounds for excluding the statement appear to us to have been very strong indeed, and for this further reason we deem it wrong either to amend the charge or to order a retrial.

25. Accordingly, we grant the second applicant leave to appeal and, treating the hearing of the application as the appeal, we allow the appeal in his case and quash the conviction.