HKSAR v. CHOY KWAI CHUN

DCCC 354/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 354 OF 2011

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Reasons for Verdict

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The Charge and the Course of Trial

1.  The defendant was charged with one count of theft, contrary to section 9 of the Theft Ordinance, Cap 210.  He pleaded not guilty to the charge on arraignment and was represented by Mr Armand Souyave.

2.  The subject matter of the stolen properties was said to be about 38 tons of recycle metal, some computer hard disks and some gilt plates.  The stolen properties belonged to one Mr Luk Wang (PW1) who at the material times operated a recycle shop located at DD125, Lot 1521, Ha Tsuen Road, Tin Shui Wai, New Territories. (“Recycle Shop”) The stealing incident allegedly took place between 11 February, 2011 and 24 February, 2011.

3.  In this trial, the prosecution sought to produce into evidence of an audio recording (PP6) which allegedly captured what the defendant had said about the stealing incident during a meeting which was also attended by PW1 and some other people including the two other prosecution witnesses, namely Mr Zhang Chunhong (PW2) and Mr Tang Kwan-shing (PW3) together with its transcript (PP7) and certified English translation (PP7A).  They also wanted to produce a written declaration (PP8) and its certified English translation (PP8A) signed by both the defendant and PW3 following the said meeting.

4.  The defence objected to the production of PP6 to PP8A on the grounds that they were involuntary.  A Voir Dire was held and the alternative procedure was adopted to determine the admissibility of these exhibits.

5.  A schedule of Admitted Facts was admitted into evidence pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221 which dealt with a number of uncontested issues such as the production of a photo album (P2) and the sketch (P3) of the recycle shop; the fact that the defendant was identified by both PW1 and PW2 in two identification parades and the production of the relevant identification book (P1).

6.  In the special issue, neither the defendant testifies nor did he call any witness.  In the end, I ruled that the prosecution has failed to satisfy the court that the statements of the defendant concerning the stealing incident either before or at the meeting and also later in the written declaration were made by him voluntarily.  Those provisional exhibits were thus excluded as evidence in this trial and the prosecution closed its case.

7.  There was no half-way submission in respect of the charge as amended, I then went on to hold that there was a prima facie case in respect of the charge against the defendant.

8.  The defendant elected not to testify as before.  He also did not call any witness to testify on his behalf in the general issue.  After hearing all the evidence and the submission that have been made by the defence, I adjourned the case for my careful consideration of my verdict.

General Directions

9.  In arriving at my verdict, I direct myself that the prosecution must prove beyond a reasonable doubt that the defendant is guilty of the charge he faces and he does not have to prove anything.  I further direct myself that I have to be sure of the defendant’s guilt on the charge before I can convict him of it.  That is the same thing as being satisfied beyond reasonable doubt.  The defendant elected not to give evidence and this is his undoubted right.  I direct myself that every defendant is entitled to require the prosecution to prove its case against him and I must certainly not assume that an accused person is guilty because he had chosen not to give evidence.  The fact that he has elected not to do so proves nothing, one way or another. It did nothing to establish his guilt.

The Prosecution Case

10.  At all material times, PW1 was the owner of the Recycle Shop. PW2 was a friend of PW1 and he resided in Mainland China.  PW1 had given keys to the entrance of the recycle shop to PW2 so that he could stay in the Recycle Shop when he visited Hong Kong.  PW3 was the landlord from whom PW1 rented the land for the Recycle shop.  The Recycle Shop was adjacent to an empty storage (“Empty Storage”) which was owned by PW3.  The Recycle Shop and the Empty Storage were separated by a fence.  The fence was made up of metal sheets and with metal wire on the top of the fence as depicted in the photo P2(6).

11.  PW3 knew the defendant for two to three years.  According to PW3, the defendant was the owner of a truck which was fitted with a crane and a clip.  PW3 had employed the defendant to use the truck to move things for him in the past and as the defendant had no place to park his truck, he allowed the defendant to park his truck in the Empty Storage.  There was nothing inside the Empty Storage and PW3 had left it unlock.

12.  PW1 testified that the stolen properties and some other 20 odd tones of recycle metal arrived at the Recycle Shop on 31 January, 2011 which was two to three days before the Lunar New Year.  They were all put into 17 to 18 big plastic bags which were all placed on the ground.  The value of the stolen properties was estimated to be about RMB 1.4 million.

13.  PW1 last saw the stolen properties on 11 February, 2011 in the Recycle Shop before he went to Mainland China to celebrate the Lunar New Year.  He next returned to the Recycle Shop on 24 February, 2011and found the stolen properties were missing.  The locks of the main entrance were found to be intact but he also found that the fence and the metal wire on top of the fence, between the Recycle Shop and the Empty Storage, were broken.

14.  PW1 immediately called PW2 who informed him that he saw a male person working in the Recycle Shop on the day before.

15.  According to PW2’s testimony, he entered the Recycle Shop at around 9:30am on 23 February, 2011 using the keys given to him by PW1.  After he entered into the Recycle Shop, he saw a male working there and picking up recycle metals from a plastic basket into a big plastic bag.  PW3 asked this male what he was doing there and the male said his boss asked him to work there.  The male was standing up and facing PW2 when they talked to each other. The male then stayed at the same location and continued with his work.  After observing the male for a while, PW2 went into the common room.  PW2 last saw the male again at about 11:00am when the male was washing his hands at a water tap near the common room. PW2 left the recycle shop at 12:00 noon.  On the next day, he related what he saw about the male to PW1 when he was asked about the missing of the stolen properties.  He also went to the Recycle shop and described the appearance of the male to PW1.

16.  PW1 then called his landlord PW3 and informed him that somebody have stolen goods from his Recycle Shop. He also asked PW3 to come over which PW3 did.  PW1 then told PW3 the details of the stolen properties including the numbers of bags stolen and the estimated value of the missing properties.  He also asked PW2 to describe the appearance of the male he saw to PW3.  As PW2 said the male was wearing glasses, PW3 immediately thought of the defendant as he was also wearing glasses.  PW3 then called the defendant and told him to come over to be identified by PW2.  As the defendant was engaged in other works, they finally agreed to meet at a café on the following day.

17.  On 25 February, 2011, PW1, PW2, PW3 and the defendant met at the café as appointed.  PW2 identified the defendant as the male he saw in the Recycle Shop.  During the meeting, the defendant told PW1, inter alias, that:

(a) He had entered the Recycle Shop and took some copper coins and a copper ladle from there;

(b) He said it was his casual staff, one Shek Man-kit (“Shek”) who had stolen the stolen properties. Shek had admitted to him over the phone that he had used his truck to steal from the Recycle Shop and transferred to another vehicle. Shek also said the stolen properties have already been sold to someone for about HK$50,000;

(c) Shek could not be contacted again over the phone but he did not have the Identity Card number or the address of Shek;

(d) He undertook to repay for the loss of the stolen properties but he could only first repay HK$50,000. PW1 rejected the proposition and insisted that at least HK$500,000 has to be repaid to him first before there was any discussion of settlement.

18.  PW1 used his mobile phone to record the above conversation.

19.  After the meeting, PW1, PW2, PW3 and the defendant went to the office of PW3 to discuss a solution of the matter.  The defendant wanted more time to look for Shek but PW1 only agreed to give him two to three more days.  PW3’s secretary typed a declaration which also contained the photocopy of the Identity Card of the defendant.  The declaration stated that the defendant entered into the Recycle Shop without permission and Shek stole the stolen properties.  The declaration was signed by the defendant, with PW3 signed as a witness.

20.  Later, the matter was reported to the police and on 1 March, 2011, the defendant was arrested.

Evaluations & Findings

– The Special Issue

21.  As said, I ruled that the prosecution has failed to satisfy me that the statements of the defendant concerning the stolen properties either before or at the meeting on 25 February, 2011 and also later in the written declaration were made by him voluntarily. The following is my assessment.

22.  The defence complained that the statements made by the defendant regarding the stolen properties were obtained from him as a result of threats and inducements. It is trite law that the prosecution must establish that the confession was voluntary in the sense that it had not been obtained from the accused either by: fear of prejudice or hope of advantage excited or held out by a person of authority; or oppression, namely conduct by a person in authority which tended to and did sap the will of the accused. (see Secretary for Justice v Lam Tat Ming & Another [2000] 2 HKLRD 431) Here, there is no dispute that PW3 was the employer of the defendant at the material times and thus falls within the legal definition of “person in authority”. (see R v Moore (1852) 2 Den 522 and R v. Ho Chi-hung (unrep., Crim App No 1195 of 1981) It also follows that if the court accepts that what PW3 had testified about what he had said and done to the defendant prior to his making the statements is true or may be true, those statements were involuntary and have to be excluded. In summary, what PW3 said (which also became part of the prosecution case) was as follows:

23.  Firstly, PW3 agreed under cross-examination that he was angry with the defendant as he allowed him to park his truck and he was causing troubles for him.  He insisted that the defendant should take full responsibility.  He said he had also told the defendant that unless the defendant cooperated and came out to settle the matter, PW1 would cause troubles to him and to the defendant.

24.  Secondly, before the meeting at the café, he also told the defendant to be careful as PW1 told him the day before that he was going to exaggerate his losses from HK$200,000 - HK$300,000 to HK$1,000,000.

25.  Thirdly and more importantly, PW3 also agreed that during the meeting at the café, at one point, PW1 told the defendant that unless he repaid him, to make full compensations or told them where the stolen properties were, he would be beaten up.  Also, later in the journey to his office, PW3 said he also received complaints by the defendant about the threats by PW1’s men during the time when he was away.  In the office, PW3 said he had asked PW1 about the threats uttered by his men to the defendant earlier in the meeting and according to him, PW1 explained that his men may have just “over-heated”.

26.  Finally, PW3 admitted that he had persuaded the defendant to sign the declaration so that he had a few days to “sort things out”.

27.  PW3 was an important witness and his role was neutral in the matter.  Although the defendant worked for him and he also knew him for two to three years as a friend, he had also known PW1 for nearly ten years and PW1 was also his long-time tenant as well.  There was no suggestion that there was any animosity between PW1 and PW3.  PW3 was not implicated by anyone in the stealing incident, I judge that there was no conceivable reason why he had to protect the defendant in this matter and concocted a story against PW1.  What PW3 had said to the defendant might well be motivated by a desire on his part to resolve a dispute between his two friends and to facilitate an amicable settlement.  However, based on what he had said and done to the defendant prior to the meeting at the café and the signing of the declaration, there was already ample evidence for me to conclude that the statements made by the defendant about the stealing incident was or might be as a result of threats or inducement held out by PW3, albeit unintentional.

-The General Issue

28.  As said, following my ruling on the special issue, the defendant elected not to give evidence; nor did he call any witness to testify on his behalf.  Such is certainly his right and no adverse inference can be drawn.

29.  With all the statements made by the defendant about his role in the stealing incident being excluded as evidence, what was left in the prosecution case was the evidence of PW1, PW2 and PW3.  In order to prove the charge, the prosecution has to satisfy the court beyond reasonable doubt that:

(a) the theft incident took place between 11 February, 2011 and 24 February, 2011 inside the Recycle Shop resulted in the missing of the stolen properties as described in the charge; and

(b) the defendant took part in the theft.

30.  In relation to the first issue, Mr Souyave submitted that there is no direct evidence when exactly the goods were stolen and by whom and by what means.  In relation to the second issue, there was evidence from PW2 that the defendant was seen inside the Recycle Shop on 23 February, 2011 shoveling copper and taking it to some plastic bags.  However, PW2 also said that the defendant took nothing away and nothing seemed to be missing both in terms of the numbers of the big plastic bags and the size of the heaps of the loose copper inside the Recycle Shop.

31.  In my analysis, if  PW2’s observation was correct, the theft should have taken place well before the day he saw the defendant in which case, the presence of the defendant inside the Recycle Shop, even if accepted, might have nothing to do with the theft.  The defendant did not give evidence but it was put to PW2 during cross-examination by Mr Souyave that the defendant did enter the Recycle Shop through the gap of the metal fence and washed his hands at a water tap positioned at the lower right corner of  photo P2(8).  Both PW1 and PW2 denied that there was a water tap at that particular position.  I was reminded that PW1 even went further and said he knew there was water source at the Empty Storage. PW3 contradicted them flatly on both aspects by saying that there was no water source at his Empty Storage and there was a water tap at the position referred to them in P2(8) and he had in the past also washed his hands there by passing through the gap between the metal fence.

32.  Given my earlier remarks about the independence of PW3 as a prosecution witness in this case, I am unable to say that he deliberately told lies to protect the defendant in this particular aspect.  The result was that there were internal and material inconsistencies between the evidence of PW1 and PW2 on one hand and the evidence of PW3 on the other hand. While the identification by PW2 of the defendant may not be an issue in this case, the evidence of PW2 in relation to what the defendant was seen doing inside the Recycle Shop became very much a live issue.

33.  The credibility of PW1 and PW2 was heavily criticized by Mr Souyave.  It was pointed out to me that both PW1 and PW2 denied that PW2 worked for PW1 at the Recycle Shop.  Obviously as PW2 was a mainlander and he was not allowed to work when he stayed in Hong Kong and was thus unemployable.  It was put to PW1 and PW2 that PW2 drove a forklift truck inside the Recycle Shop but both strenuously denied.  PW3 however agreed that he had once seen PW2 use the forklift before.  That explained why PW1 would give the keys to the main entrance of the Recycle Shop to PW2 and why he would stay and indeed slept over in the Recycle Shop.  More importantly, both PW1 and PW2 had denied that PW1’s father was present in the meeting at the café; both said the Person D, who was very agitated and speaking as a concerned party in the transcript, was just a person sitting in the next table and happened to be there. PW3 once again contradicted their evidence by agreeing to the suggestion that PW1’s father was there and there was simply no reason why he had to lie on this aspect of the evidence.

34.  I therefore found it difficult to exclude the possibility that PW2 was indeed employed by PW1 and his evidence was very much influenced by PW1.  In particular, PW2 may have embellished his evidence when he said he saw the defendant shoveling copper into a basket and then transferred it into plastic bags but took nothing away.  I agree with the submission that PW2 might have seen the defendant washing his hands but it is doubtful that he saw the defendant shoveling the copper.  His account that the defendant still remained in the Recycle Shop for at least one and a half hour after being questioned by him was indeed so bizarre and illogical to say the least and I found it very difficult to believe.

35.  With these findings in mind, I do not lose sight of the evidence from PW3 that PW1 had mentioned that he would exaggerate his loss so that he could account for his business partner in the mainland.  I also paused to observe that the actual 38 tons of goods as mentioned in the charge was at its most an educated guess on the part of PW1.  The number was arrived by subtracting the actual weight of the goods which was found inside the Recycle Shop on 24 February, 2011 from the weight which was referred to in the delivery documents which must also be an inadmissible hearsay figure.  PW1 also frankly admitted that the figure as stated in the delivery documents was not in any way verified by any weighing process after the delivery of the goods.

36.  Based on the above analysis, even if there were indeed a theft from the Recycle Shop happened between the period as mentioned in the charge, there was a reasonable doubt as to the exact amount of the quantity which has been stolen.

37.  In relation to the second issue, given my earlier finding, the presence of the defendant in the Recycle Shop on 23 February, 2011 without more, was innocuous and there was even evidence from PW3 that there were instances (himself included) where people from the Empty Storage did enter the Recycle Shop through the gaps on the fence to get water supply before the stealing incident.

38.  As the locks to the main entrance of the Recycle Shop remained intact, if there were indeed a theft of the goods from the Recycle Shop, I accept that it was highly likely that the culprit would have to use a similar truck of the defendant with also a crane and a clip to remove the goods from the adjacent Empty Storage.  However, even if that was the case, there was simply insufficient evidence for me to draw the irresistible inference that it must be committed by the defendant.  Although the defendant did not give evidence, PW3 had said in evidence that he had seen people other than the defendant driving the truck before.  What is more, PW3 had also said he had not locked the entrance to the Empty Storage for the simple reason that there was nothing there.  Effectively therefore PW3 did not allow the defendant to park his truck there to the entire exclusion of the others.  Thus, apart from the possibility that it was the other drivers working for the defendant who might have committed the theft, any interested party might also be able to use a similar truck of the kind owned by the defendant and drove into the Empty Storage to steal the goods from the neighbouring shop.

Order

39.  Based on the above, the defendant is acquitted of the charge accordingly.