HKSAR v. LAU WAN

CACC177/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 177 OF 2009

(ON APPEAL FROM DCCC 50 OF 2009)

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REASONS FOR JUDGMENT

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Hon Saw J (giving the judgment of the court) :

Introduction

1.  On 13 May 2009, the applicant was convicted after trial by Deputy Judge Dufton in the District Court of one charge of robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 (Charge 1) and 11 charges of theft, contrary to section 9 of the same ordinance (Charges 2 to 12).

2.  He was sentenced to a total term of four years’ imprisonment which was ordered to be consecutive to a term of imprisonment he was then serving. 

3.  On 1 June 2010 we dismissed his application for leave to appeal the convictions.  We said we would hand down our reasons in due course.  These are our reasons.

The trial

4.  The principal prosecution witness in the trial was Tsoi Shing Tuen (PW1).  He was aged 22 and employed by a real estate company.

5.  The prosecution’s case was that at approximately 11 a.m. on 9 October 2008, PW1 at the request of his friend Lau Chi Ho (PW2) went to Room 1027 Kui Yat House, Yat Hung Estate, Tung Chung, Lantau Island (“the flat”) to obtain repayment from the applicant of a debt owed to PW2 in the sum of $2,400. 

6.  PW1’s evidence was that the applicant was a person known to him by his nickname “Hak Chai”.  On that morning he telephoned the applicant to make arrangements to collect the debt.  He was requested by the applicant to meet him at the flat.

7.  After he arrived, the applicant invited him to sit down and from a wooden box beneath the table took out a large knife which he brandished in PW1’s direction, saying at the same time : “Do you believe I would chop you?” and “I could also bring trouble to your family”.  Having done this he produced an axe and began striking the table surface, albeit with the blunt side down.  This display of aggression frightened PW1 who attempted to explain that he was only there to collect the debt owed to his friend PW2.  The applicant insisted that PW2 come to the flat and that the money would only be repaid if he came personally to collect it.  PW1 attempted to convey this message to PW2 by using his mobile telephone but this was to no avail.  Despite several attempts to call PW2 he only spoke to him briefly.  He said that he asked PW2 to come to the flat but PW2 refused as he was too tired.  Eventually he suggested to the applicant that he would go to find PW2 and bring him back to the flat.  The applicant agreed albeit that he sent with PW1 a young woman who was also in the premises.  The applicant and the young woman left the flat.  They went downstairs in the direction of the bus stop.  Within a matter of minutes he received a telephone call from the applicant insisting that he returned to the flat.  This he did, he said because he was in fear of the applicant.  He felt that he had no choice but to do as the applicant demanded.  They both lived on the same housing estate and threats had been made to him and his family. 

8.  On his return to the flat, the situation degenerated further.  The applicant denied that he owed PW2 any money and asserted that PW2 owed him $9,000 which was repayable immediately.  He said to PW1 that as he was PW2’s representative he was liable for that debt.  PW1 refused.  The applicant then produced to him a hand-written document which purported to be an acknowledgement that he owed $9,000 to the applicant.  He was told to write onto this his name and ID card number.  In fear of the applicant he did as he was instructed.

9.  The applicant then forcibly took from him his shoulder bag which contained amongst other items the ATM card for his Bank of China savings account and his Bank of East Asia Visa card (Charge 1).

10.  Thereafter PW1 was detained in the flat against his will until he made good his escape the following afternoon.  Whilst detained the applicant demanded that he revealed the PIN numbers of his ATM card and his Visa card.  In fear of the applicant he provided that information.

11.  In the period from when he returned to the flat and his escape, a withdrawal of cash of $10,000 was made from his Bank of China savings account and seven cash advances amounting to $30,000 were obtained from his Bank of East Asia Visa account (Charges 2 to 8).  In addition, there were four purchases made from retail outlets and payments made by EPS, in the sum of $17,555 using his Bank of China ATM card (Charges 9 to 12).  PW1 did not authorize the cash withdrawals or the purchases.

12.  The applicant was arrested some six weeks after the events of 9 and 10 October 2008.

13.  It was the defence case put in cross-examination and reinforced in part by one defence witness that PW1 had on the morning of 9 October 2008 gone to the flat occupied by the applicant to attend a party where the drug ketamine was to be consumed.  It was suggested to PW1 that not only had he consumed drugs that day but had left the premises in the company of a young woman who had also been attending this party for the express purpose of purchasing more drugs.  This proposition was rejected by PW1.

14.  It was also put in cross-examination that as to two of the cash withdrawals (Charges 2 and 3) in the sums of $10,000 and $6,000 respectively, that PW1 had agreed to repay the debt owed by PW2 to the applicant in the sum of $9,000 and in addition had agreed to lend to the applicant’s friend, Kai Hung, the sum of $6,000.  To give effect to this, he had voluntarily given his ATM and Visa card to the applicant together with the PIN numbers.  He had done this because he himself was so affected by the drugs he had consumed that he was in no fit condition to make the withdrawals.  This suggestion was also rejected by PW1.

15.  As to the other amounts withdrawn in cash and the purchases made, it was the defence case that the applicant knew nothing of those transactions. 

16.  The applicant did not give evidence.  The one witness called in the defence case Cheung Hoi Fu (DW1) did not give evidence directly referable to the charges but he gave an account of the behaviour of PW1 whilst in the applicant’s flat that day.  It was his evidence that he had gone to the flat on the night of 8 October 2008 to meet his girlfriend.  He had fallen asleep and did not wake up until 2 p.m. the next day.  When he awoke he saw PW1 was acting in what he described as “a very bizarre manner” — he was jumping around and shouting, saying that he wanted to hit someone.  He was told by one of the girls in the flat that PW1 had earlier taken ketamine.  He himself did not see PW1 take drugs but he did see powder on the tip of his nose.

17.  As will be apparent from the above the evidence of PW1 was critical to the prosecution’s case.  That there had been withdrawals in cash from his accounts and purchases made using his ATM and Visa card in the period 9 and 10 October 2008 was not in issue.  What was in issue was who had made those withdrawals and purchases and in what circumstances had that person or persons come into possession of the cards and the PIN numbers.  The evidence in this regard came entirely from PW1.

18.  The judge accepted the evidence of PW1.  He disbelieved the evidence of DW1.  

Perfected grounds of appeal

19.  The perfected grounds of appeal dated 23 October 2009 can be summarized thus :

(1)	that the judge improperly concluded that PW1 was a credible witness; and
(2)	that there was insufficient evidence to convict the applicant on Charges 2 to 12 because there was no direct evidence that the applicant effected the transactions.

D iscussion

(1)    Ground 1

20.  It should be observed at the outset that the judge was alert to the fact that the prosecution’s case was dependent upon the credibility of PW1.  Equally it must be observed that he was alert to the fact that there were inconsistencies in his evidence and discrepancies between parts of his evidence and the evidence of PW2. 

The inconsistencies

21.  It is suggested that the judge failed to give proper consideration to the fact that PW1, when giving statements to the police, did not advert to the fact that at one point in time he left the flat to look for PW2.  It is said in the circumstances that this casts doubt upon the credibility of PW1 because this was clearly an opportunity for him to escape and report the matter to the police.  The fact that PW1 could have escaped is undoubtedly correct.  However it is important to note this evidence emerged not in cross-examination but in his evidence-in-chief.  In cross-examination PW1 explained why it was that he had omitted to mention this to the police.  He said :

“Because earlier he made a threat against my family members I was really scared. At that time had I thought about reporting it to the police. I would surely have done so. But that idea did not occur to me at that time. Since I was very scared and I worried that if I did not do what he asked me to, he would harm my family, so I followed his words.”

22.  The fact that he did not make good his escape was addressed by the judge who said this : 

“36. Mr Bedford submits PW1’s evidence when he left the flat that he did not try run away and report to the police he had earlier been threatened by a knife but instead returned to the flat is utterly unbelievable. Whilst in the cold light of day one might expect a person having been threatened in the way described by PW1 to have taken the first opportunity to flee and go to the police, I accept the explanation of PW1 that he returned to the flat because at the time he was at a loss as to what he should do and all that was in his mind was the picture of Hak Chai demonstrating the force, an explanation PW1 repeated in cross-examination when accepting he had the ability to run away saying he was scared if he ran away Hak Chai may go to his home and cause trouble to him and his family.”

23.  It must be remembered that PW1, PW2 and the applicant all lived in close proximity to one another.  PW1’s evidence was that he was in fear of the applicant having been threatened by him with weapons.  He said that his state of mind was such that when he was summoned to return to the premises by the applicant he did so.  This was not an inconsistency.  It was a matter which cried out for an explanation.  One was given and accepted by the judge.  We do not consider that any criticism can properly be made of the judge in this regard.  Like the judge we see nothing inherently improbable or unbelievable in this explanation.

24.  Another matter which is relied upon on behalf of the applicant is the fact that in the course of giving evidence PW1 stated that because he was not wearing a watch that day he had only a vague idea of the time between the various events he had described.  As it transpired, having been shown the CCTV tape of him re-entering the premises after he had gone downstairs to look for PW2 (which showed that he was wearing a watch), he gave an explanation as to why it was that subsequently he said he was not.  This was a matter canvassed extensively in re-examination.  The judge also took it upon himself to ask PW1 a number of questions about it.  In his reasons for verdict the judge said this :

“33.

… When first asked in cross-examination how he was able to give various times to the police PW1 replied that he was unable to tell exactly when it was and only estimated the time by the light coming through the curtains. When asked why he did not look at his watch PW1 said he was quite sure he did not wear a watch when he went there. Later when the CCTV (exhibit D1) was shown to PW1 he confirmed he was wearing a watch when he went to the flat.

34.

In re-examination PW1 explained that when Hak Chai snatched his bag there was a lot of pulling and pushing causing his left wrist to hurt and therefore he took off his watch.  As Hak Chai had by then opened his bag PW1 placed his watch in the bag.  Hak Chai then took the wallet out of PW1’s bag and immediately placed the bag on the wardrobe, after which PW1 did not have the chance to touch his bag.  Although this account was somewhat convoluted I accept what PW1 said about the watch.  There is no reason for him to make up such an elaborate story unless it was true when he could easily have said he forgot he was wearing a watch at the time.  Furthermore whether or not PW1 could remember various times or had a watch are in my view not material and this evidence in no way causes me to doubt PW1’s description of the events inside the flat.”

25.  It is clear from the above passages that the judge was alert to the possibility that this might impact on PW1’s credibility.  He considered the matter and concluded that it did not. 

26.  We are satisfied that the judge’s assessment of this part of PW1’s evidence is sensible.  As the judge said — there was no need for PW1 to lie about this matter.  There was no issue as to the length of time that he spent in the flat, that was established by the CCTV cameras which captured his entry and leaving the flat.  The times of withdrawals made from his bank accounts and the purchases made by EPS were established by the bankers’ affidavits.  The criticism now made of the way the judge dealt with this aspect of PW1’s evidence is without merit.

27.  It is suggested that PW1 was not a witness who could be relied upon because he said in evidence-in-chief that he was unable to speak to PW2 on the telephone when he tried to ring him from the flat.  In cross-examination he corrected this and said that he had managed to speak to PW2 once only and had requested him to come to the flat but he refused saying that he was too tired.

28.  PW2 recalled that he did receive such a call from PW1 and confirmed that PW1 had said to him words to the effect that the applicant would only return the money owed if PW2 personally went to the flat.  This account was consistent with that given by PW1.

29.  The evidence of PW1 and PW2 on this matter was consistent one with the other.  The fact that PW1 corrected the account he gave in evidence-in-chief did not, as is suggested, undermine his credibility.

30.  There were discrepancies between the evidence of PW1 and PW2 as to who contacted who before a report was made to the police.  PW1’s evidence was that he had made no contact with PW2 before going to the police.  PW2’s evidence was that he went to the police with PW1 and that he was the first person that PW1 contacted after his escape.

31.  The judge was not concerned with this and nor are we.  The critical issue as the judge emphasized was what had happened inside the flat, not what had happened subsequent to PW1’s escape. 

32.  We have read the transcripts of the evidence of PW1 and PW2.  Insofar as PW1’s evidence is concerned there is a compelling frankness and credibility to it.

33.  As we have indicated, the judge was clearly mindful of the fact that it was PW1’s credibility that was critical to the prosecution’s case.  He was, we are satisfied, aware of the discrepancies that there were.  He properly, in our opinion, considered they were not material and did not give him cause to doubt the credibility of PW1. 

(2)    Ground 2

Discussion

34.  In support of this ground of appeal it is said that :

“10. Charges 2-12, as framed, accused the Applicant personally of having perpetrated each theft. As the Deputy Judge frankly acknowledged, there was no direct evidence that the Applicant appropriated any of the sums withdrawn from ATM machines or effected any EPS transfers.”

This is correct.  The judge was satisfied that the only inference to be drawn from all of the evidence was that the applicant arranged for the money to be withdrawn from the ATM machines and the EPS purchases to be made.

35.  In his written submission Mr Bedford on behalf of the applicant submits that “The prosecution evidence taken to the highest had not discharged the burden required for the offence of theft, namely the prosecution had not proved that the applicant appropriated the cash or chose in action in relation to Charges 2-12.”  It is also suggested that the prosecution had cast its case against the applicant on the basis that he was a secondary party to the theft charges.  This, it is said, is because the prosecution’s written opening contained the following :

“(9) The Prosecution case is, that it was this Accused who, additionally, organized and orchestrated the withdrawing of the sums of cash from ATM’s and the EPS, as detailed in Charges 2-12.”

36.  This ground of appeal is misconceived.  It was the prosecution’s case that the applicant was the person who had threatened PW1 at the outset.  It was the prosecution’s case that the applicant had sent PW1 downstairs to find PW2 to bring him to the flat, and it was the applicant who telephoned PW1 and instructed him to return to the flat.  It was the prosecution’s case that it was the applicant who had robbed PW1 of his belongings and forced him to reveal the PIN numbers of his ATM and Visa card.

37.  It was the prosecution’s case that in those circumstances a proper inference to be drawn was that the applicant arranged for the cash withdrawals and the EPS purchases to be made.  Whether he physically inserted the cards into the ATM machines or physically attended to the purchases at the retail outlets did not alter the fact that he was organizing and orchestrating the thefts as the prosecution opening indicated.  He was a principal and that is what the judge found.  Whether there were other persons present when the cash was withdrawn from the ATM machines and the purchases made is not a matter of any moment.  The prosecution set out to prove that the transactions were done on the applicant’s behalf.  The judge put the matter this way :

“44. Mr Bedford submits that there is no evidence to support these charges. It is correct to say that there is no direct evidence as to who made the actual withdrawals and EPS transactions. Mr Bedford places specific reliance on the photograph (exhibit D2), which shows that a person of fair complexion was the person carrying out the EPS transactions at Fortress (charges 11 &12). I accept on the face of the photograph this person cannot be the defendant who has a dark complexion.

45. Taking into account, inter alia, that the defendant was the person who took the bag containing the wallet inside which was the two cards and first demanded from PW1 the pin number for the Bank of China card and later demanded the pin number of the Bank of East Asia card (see paragraphs 18 & 20) I am satisfied the only inference to draw is that the defendant was a party to the taking of the money from the ATM machines and to the EPS transactions, whether or not he was the actual person who withdrew the money or made the EPS transactions. The fact others may have heard the pin numbers does not cause me to doubt this is the only inference to draw.

46.      In reaching this finding I have also taken into account that the first of the withdrawals were not until some hours after PW1 first disclosed the Bank of China pin number and the later transactions subject to charges 4-12 were some 12 hours after the cash withdrawals subject of charges 2 and 3.  These time lapses do not cause me to doubt the only inference to draw is that the defendant was a party to the taking of the money from the ATM machines and to the EPS transactions.  Nor does the fact that the EPS transactions took place after PW1 left the flat at 14.09 on the 10^th October cause me to doubt this is the only inference to draw.”

38.  The applicant may have used others to give effect to his intention but that does not alter the fact that he was acting as a principal intending to appropriate PW1’s property.  (There was evidence that two of the EPS purchases were made by a person who could not have been the applicant.)  Those others may have been aiding and abetting him.  It is to be remembered that the defence case was that the withdrawals in Charges 2 and 3 were made with the permission of PW1.  It was a fundamental premise to this that it was the applicant who made those withdrawals.  The suggestion in the written submission that the prosecution’s case was that the applicant was a secondary party to these charges is without substance. 

39.  The suggestion made in this ground of appeal that “From the Prosecution Opening to the delivery of the Verdict, it was never made known to the Applicant in relation to Charges 2 to 12 what specific crimes he was accused of, and subsequently found guilty of” is likewise without substance.

40.  In the final address by the applicant’s counsel there is no suggestion that the applicant’s legal representative in the trial were under any misapprehension as to how the prosecution advanced its case against the applicant on Charges 2 to 12.  

41.  There was only one matter which gave rise to concern in this application.  Charge 2 reads as follows :

“	Statement of Offence
	Theft, contrary to section 9 of the Theft Ordinance, Cap. 210.
	Particulars of Offence
LAU Wan, on the 10th day of October, 2008, in Hong Kong, stole a cash sum of $10,000 Hong Kong currency, the property belonging to TSOI Shing-tuen.”

The evidence in support of this charge was that the cash had been withdrawn from PW1’s Bank of China savings account using the ATM card and PIN number.

42.  The particulars of the charge are wrong.  The cash obtained did not belong to PW1, it belonged to the bank.  The applicant had stolen PW1’s chose in action against the bank which was created when he deposited the funds.

43.  The particulars of the charge, as Ms Vinci Lam, SPP for the respondent submits, should have been :

“ LAU Wan, on the 10^th day of October, 2008, in Hong Kong, stole a close in action, namely a debt in the sum of $10,000 Hong Kong currency, owed to TSOI Shing-tuen by Bank of China (Hong Kong) Limited, the property belonging to the said TSOI Shing-tuen.”

or :

“ LAU Wan, on the 10^th day of October, 2008, in Hong Kong, stole a cash sum of $10,000 Hong Kong currency, the property belonging to another.”

44.  We considered that the second option, which was the way in which the particulars were described in Charges 3 to 8 where cash advances were obtained from PW1’s Visa card,was acceptable.

45.  We were satisfied that the proper course was to permit the respondent to amend the particulars of Charge 2 and to substitute for the expression the property belonging to the said Tsoi Shing Tuen the expression the property belonging to another pursuant to the powers given to us by section 83A of the Criminal Procedure Ordinance, Cap. 221.  This was the course adopted by the Court of Appeal in HKSAR v Li Ting Kit [2000] 2 HKLRD 129, 144; a course which Mr Bedford on behalf of the applicant did not oppose.

46.  We were satisfied that there was no merit in any of the grounds of appeal and dismissed the application for leave to appeal the convictions.