HKSAR v. HON MONK CHUN

HCMA 1134/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1134 OF 2001

(ON APPEAL FROM ESCC 27/2001)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy of one charge of Going Equipped For Stealing, contrary to S. 27(1) of the Theft Ordinance (Cap. 210). He now appeals against that conviction.

2. The Appellant was charged jointly with two other men, who were D1 and D3 at trial. The prosecution evidence showed that the police stopped a taxi at a road block. Inside the taxi were the female driver and 4 males. The Appellant was sitting in the front passenger seat. The taxi was searched and the police found what seemed to be a mobile burglary unit. In a bag behind the driver's seat were screwdrivers, 3 pairs of labour gloves, a camera, a video camera, and its manual. Behind the headrests of the rear seat was a black handbag containing 4 crow bars and another pair of labour gloves.

3. The glove compartment at the front passenger seat contained a "Nokia" mobile phone and a radio transceiver with a headphone. The Appellant was searched but nothing suspicious was found. He was arrested for the offences of going equipped for stealing and assisting an illegal immigrant. Later at Happy Valley Police Station he was searched again and a piece of paper (Ex. P11) was found in a concealed pocket of his jacket. The Appellant elected to remain silent.

4. Police from the Telecommunications Branch examined the transceiver and found it had been programmed with 15 channels, 14 of which were police frequencies and was in operating order. The piece of paper found on the Appellant was a list of 14 programmes, listed in the same order as they had been for the transceiver. A piece of paper (Ex. P10) had also been seized from the glove compartment in front of where the Appellant sat. This was a chart showing police radio frequencies. All the police districts were correctly marked with their frequencies, except the police districts relating to Airport 1 and Airport 2, which were restricted information. The Appellant's fingerprints were found on both pieces of paper.

5. The Appellant gave evidence. He said he was a tourist guide. The driver was a friend who took him to the Peak that evening, 31 December, to look at the tourist facilities. He heard the noise of the transceiver but had not seen it. He identified Exhibit P10 as a piece of paper given to him by the driver, which he was going to give to his girlfriend so she could avoid speed traps. After looking around the Peak, the driver told him she was going to pick up some passengers and when he returned from having a cigarette, he found 3 passengers he did not know in the back seat of the taxi. He boarded the taxi which was stopped soon after at the road block.

6. The Magistrate rejected the Appellant's account. He found it artificial and contrived specifically to try to get around the evidence implicating him. He found that Appellant's explanation for his possession of the piece of paper was untruthful. He found as a compelling and irresistible inference that the Appellant did know the other occupants of the taxi. He rejected the Appellant's account of how his fingerprints came to be on the pieces of paper and how the other persons came to be in the taxi. He was satisfied on the evidence that the 1st Appellant was in joint possession with the 3rd defendant of all the items in the charge.

The grounds of appeal

7. It was submitted that the Magistrate erred in finding the Appellant was in joint possession with the 3rd defendant of the items in the charge, when the Appellant's evidence that he did not know the passengers in the taxi was unchallenged. Further, the 3rd defendant's Record of Interview, inadmissible as evidence against the Appellant, was said to be used against him. It was submitted that the Appellant did not give evidence and any other evidence to support the allegation that he was in possession of the items in the charge, except for the pieces of paper (Exhibit P10 and P11), was so tenuous as to insufficiently discharge the standard of proof which lay on the prosecution.

8. The second ground was that although the Magistrate advised himself that the 3rd defendant's Record of Interview was inadmissible against the Appellant he erred, as he did so only in the context of considering the case against the Appellant and, it was submitted, there must be a real possibility he wrongfully took into account matters in that Record of Interview, prejudicial to the Appellant.

9. Having considered the grounds of appeal and the Magistrate's Statement of Findings, I am satisfied that there was ample evidence from which the Magistrate could conclude the Appellant was in possession jointly with the 3rd defendant of the various items.

10. The circumstances of the road block, the amount and nature of the equipment in the car, and the number of passengers in the car, were all matters which raised an inference that the equipment was specifically for the purpose of stealing. It was a large quantity of material capable of being used for burglaries and thefts. The Appellant was in possession of one piece of paper containing the radio frequencies of the transceiver and a piece of paper also marked with the receiving stations, with his fingerprints on it, was found in the glove box in front of him. He gave evidence, which the Magistrate rejected, as to how he obtained possession of Exhibit P11. The Magistrate drew the inference that the items could be used for theft and that the pieces of paper were to assist in the use of the transceiver.

11. There is no substance in the ground that the Magistrate had taken into account prejudicial matters related by the 3rd defendant as relating to the Appellant. It is quite clear from the Statement of Findings that the Magistrate dealt with the defendants separately when considering his verdict. The Magistrate's exchange with prosecuting counsel (B 83) also shows his awareness that admissions by the 3rd defendant were not evidence against Appellant.

12. The appeal is dismissed.