HKSAR v. WU YAT KWONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.40
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one charge of handling stolen goods. That charge alleged that he, in February 1997, dishonestly received certain stolen goods, namely two Toyota vehicles, knowing or believing the same to be stolen. He pleaded not guilty to that charge but was found guilty after trial before Judge Toh and sentenced to imprisonment for three years. He now seeks leave to appeal against that conviction.

2. It was the prosecution case that the applicant was a dealer in used vehicles and that the Toyota motor vehicles were stolen in the United States and sent by his United States contact Yip Kwok-wah to the applicant in a container. The prosecution relied upon a cautioned statement to prove knowledge on the part of the applicant and upon documents which were tendered under s.19A(2) of the Evidence Ordinance to prove that the vehicles were stolen. The trial judge accepted that the document proved that the vehicles were stolen and relied upon the cautioned statement to establish knowledge on the part of the applicant.

3. The part of the cautioned statement upon which reliance was placed reads as follows:

"Q.16:	How many times have you cooperated with Yip Kwok-wah in business?
A.16:	Many times. In these two years, there were an average of four to five containers of vehicles transported to Hong Kong every month.
Q.17:	Did the vehicles which Yip Kwok-wah transported to you have any problem?
A.17:	For these two years in which I cooperated with him, at first the vehicles had no problem and the prices were reasonable. However, over half a year ago, after he separated from Kwan Wai-kwong's company and began to do business separately, the quality of the vehicles which he transported to Hong Kong was not alright. They were old and worn-out. They could not even be sold at their cost in Hong Kong. I did tell him that the quality of the vehicles was very poor. However, he still transported them to Hong Kong as usual. Until the tenth-odd days of this Lunar New Year, I made a phone call to the U.S.A. to contact him to complain. I told him to return to Hong Kong to have a look at the vehicles.
Q.18:	Did Yip Kwok-wah return to Hong Kong to have a look at the vehicles?
A.18:	Yes. On the twentieth-something day of the Lunar New Year, he returned to Hong Kong and look at the vehicles. He did agree to compensate me with vehicles. However, he went back to the USA on the four day of the Lunar New Year.
Q.19:	Did Yip Kwok-wah compensate you with vehicles?
A.19:	Yes. The three suspected-to-be U.S. stolen vehicles, which were found at Fei Hung Yard C by the police on 17th, were the compensation given to you by Yip Kwok-wah. "

The officer then again cautioned the applicant and the questioning went on:

"Q.20:	When did you learn that Yip Kwok-wah would compensate you with vehicles?
A.20:	Around the ninth day of the Lunar New Year, Yip Kwok-wah phoned me from the USA, saying that he would compensate me with a container of vehicles. However, he told me that the vehicles inside the container were US stolen vehicles. He told me to find someone to collect the container in Hong Kong. At first I told him that I would not find anyone to collect the container as they were US stolen vehicles. However, Yip Kwok-wah told me that he could not find anyone to collect the container. Seeing this, I did not wish to suffer any loss. If I did not accept this container of vehicles with which Yip Kwok-wah compensated me, I would suffer some loss. So I gave Yip Kwok-wah the portable phone number of Yuen Wing-kwong, telling Yip Kwok-wah to instruct the tractor driver to contact Yuen Wing-kwong for collection of the container. I also contacted Yuen Wing-kwong, telling him to go to Fei Hung Yard C to unload the container if any tractor driver approached him for collection of a container. Yuen Wing-kwong did not know that inside the container were US stolen vehicles."

4. Three grounds were argued by Mr. Macrae for the applicant. We shall deal firstly with the third ground, which was:

"The judge found as follows:

"The case against the 2nd defendant, first of all, is the eight documents in P45 and I therefore accept that the cars have been proven to have been stolen. It remains for the court to consider if he had the requisite knowledge."

Exh.P45 was inadmissible in law since none of the documents therein was a 'foreign document' within the meaning of s.19A(2) Evidence Ordinance, Cap.8. Accordingly, there was no admissible evidence at all that the vehicles, the subject matter of the 2nd charge, were stolen goods."

5. Section 19A(1) and (2) of the Ordinance reads:

"(1) Any document purporting to be signed by the Chief Secretary and certifying that any foreign document attached thereto has been received by him in connexion with any criminal proceedings shall be admitted in evidence in those proceedings together with the documents attached thereto, on production without further proof, as prima facie evidence of the facts contained in such documents.

(2) In this section 'foreign document' means a document purporting to be -

(a) a true copy or extract from -

(i) any record, book or document of a public nature kept or maintained in any place outside Hong Kong; or

(ii) any document filed in or issued out of an office kept or maintained in any place outside Hong Kong for the purpose (whether the sole purpose or not) of registering companies or business names or the ownership of property; and

(b) signed and certified as a true copy of or extract from any such record, book or document by a person having custody or control thereof."

6. Mr. Macrae's principal submission is that the documents were not, as required by the section, signed or certified as a true copy by a person having custody or control thereof.

7. This, when the documents are examined, is clearly correct. There is no material to indicate that anyone has ever certified them. Mr. Pang, for the respondent, agreed that the documents were not properly admissible under s.19A. He did not seek to argue that there was any other evidence that could have established that the vehicles were stolen. We shall turn later to consider the submission which he did make as to the proper course to be followed.

8. Before so doing, we return to the grounds argued by Mr. Macrae.

9. The first of his grounds was that:

"The applicant gave unchallenged evidence that he had been deprived of sleep during the 34 hours he had been in custody prior to the inception of Exh.P15, which evidence the learned Judge appeared to accept. Moreover, she accepted that the applicant 'may have been tired on 18 February', the date on which Exh.P15 commenced. In view of the circumstances of the applicant's detention, during which he had given a number of exculpatory cautioned statements lasting more than 9 hours, and the learned judge's findings, Exh.P.15 should not have been admitted into evidence as voluntary. Alternatively the learned judge should have excluded Exh.P15 from the evidence in the exercise of her residual discretion."

10. Let us say immediately that we were not impressed by this submission. The judge gave the most careful consideration to all of the matters placed before her which related to the admissibility of the confessional statement. She exhaustively examined them and, in our view, her finding that the statement was given freely and voluntarily, cannot properly be challenged. There is nothing in this ground.

11. The other ground argued by Mr. Macrae was that the judge did not, on the general issue, properly consider the applicant's evidence and the exhibits referred to in his evidence and did not properly evaluate his evidence as to whether he knew of believed the vehicles, the subject of the charge, to be stolen goods.

12. Mr. Macrae here refers to the evidence of the applicant in which he said that the vehicles could have been recovered stolen goods which were then sold at public auction. We have no doubt that the judge had this evidence in mind when she came to her conclusion. She acted, however, upon the basis, and she was entitled to do so, of the clear admissions made by the applicant that his American agent had told him that the goods in the container were stolen cars.

13. There is nothing in this ground.

14. We turn finally to the submission made by Mr. Pang that pursuant to s.159G of the Crimes Ordinance we should convict of an attempt to receive stolen goods. That section provides in subsection (2):

"A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of this offence is impossible."

15. Mr. Pang submits that, given there was no evidence that the goods were stolen, this is a case in which this court could say that "the facts are such that the commission of the offence is impossible". We have some doubt as to whether that section has application where the evidence simply fails to establish the true position. There are arguments both for and against such an application. However that may be, it is not necessary for us so to decide as we are satisfied that this is not a matter in which the section, even if applicable, should be applied. We would, however, entertain an application that the matter be sent for re-trial.

16. The application is granted. The hearing of the application is treated as the hearing of the appeal. The appeal is allowed and the conviction is quashed.

(After hearing counsel on an application for retrial.) We are satisfied that this is a proper matter in which to order that there be a re-trial upon a fresh indictment.