HKSAR v. NIP KWAI WING

CACC 117/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 117 OF 2000

(ON APPEAL FROM DCCC 1185/1999)

__________________

______________

J U D G M E N T

______________

Hon Stock JA (giving the judgment of the Court):

Background

1. This applicant was charged in the District Court with an offence of handling stolen goods. He pleaded not guilty. The charge was that on 21 April 1999 he dishonestly received a stolen crane lorry knowing or believing it to have been stolen. He was convicted by HH Judge Wright and sentenced to two years and nine months' imprisonment. He now seeks leave to appeal against conviction and also against that sentence.

2. It was common ground that the truck belonged to a Mr Leung and was left on the night of 20 April 1999 in a compound in Kam Sheung Road, Yuen Long. But at 8.15am the next morning, when Mr Leung returned to the compound, the truck was gone and a padlock which had been on the gate was missing. He reported the matter to the police.

3. The evidence against this applicant came from two sources: admissions made by him when arrested and when interviewed by the police, and the evidence of a man called Suen Chung Yan, also referred to as PW4. In October 1999, Suen pleaded guilty to handling the same vehicle knowing it had been stolen, and was sentenced to 18 months' imprisonment. He had actually driven the truck from the compound to the Mainland. The prosecution case was that this applicant was engaged by the thieves, a gang specializing in the theft of expensive vehicles for sale on the Mainland, and that his job was to take Suen to the place where the vehicle was, and to hand him an envelope which contained documents to facilitate his entry, and the importation of the vehicle, into the Mainland.

Arrest and interviews

4. On 18 September 1999 the applicant was arrested at the border, and taken to the Border District Headquarters. The evidence was that in the detention room of Lok Ma Chau Police Station he had said, when the allegation of the theft of the vehicle was put to him, that he had not stolen the truck, but that "it was Sai Fai and the others who stole it and told me to drive a Che Sau to collect it." The reference to a 'Che Sau' was apparently a reference to the driver, or a driver who drives crane trucks.

5. At the police headquarters to which the applicant was taken from Lok Ma Chau there was conducted an interview, the record of which was produced and it is the exhibit P2 in this case. That interview took the form of a question and answer session. In this record, signed by the applicant, the applicant is recorded as saying that he knew that the truck was stolen, that Sai Fai was the boss of a gang of vehicle thieves, and that he, the applicant, owed him money, and that, for performing the function with the crane driver which he described, his indebtedness would be reduced by $3000. He there says that he met Sai Fai on the night in question, and was given this envelope and told what to do. Sai Fai had said to him that the vehicle had already been dealt with by a man called Fei Chai Chow who would be waiting for them. He understood 'dealt with' to mean that Fei Chai Chow had already stolen the vehicle. He then waited for the driver, took him to the compound, gave him the documents needed for customs purposes, and told the driver to drive the vehicle to the Mainland. When they arrived at the vehicle, the engine of that vehicle was still running. There was no one else with him when he drove the driver to the compound. He, the applicant, then left the scene.

6. He said that he was a small potato in the organization and received his $3000. According to this evidence, he then said that he was willing to take the police to the places that he described in the interview, though his recollection of those places was vague.

7. The admissibility of this record of interview was challenged but that challenge failed. The evidence was that after this first statement (P2) was recorded the applicant was taken to look for the vehicle which he used to transport the crane driver to the compound, but they could not find the vehicle, and the applicant was then taken to Lok Ma Chau Police Station where he was released on police bail.

8. Put very broadly the grounds of challenge to the admissibility of P2 included allegations that the applicant had been assaulted and threatened, that inducements had been made in the knowledge that he, the applicant, suffered from some heart condition and was most anxious to be released, and that he had been told that he could not have a lawyer present despite the fact that he had asked to see one.

9. There were two other statements allegedly made by the applicant which are relevant to this application. After the statement in September, the applicant was released on bail and not then charged. Later in the year, two further statements were made. They are P3, made on 19 October 1999; and P5 on 9 December 1999, the day on which he was charged and at the time when the police knew that he was going to be charged.

10. P3 contained nothing inculpatory. Indeed, the applicant was asked to take the police to the scene of the crime, but he said that he was not willing to do so. Nor was he willing to discuss photographs of a vehicle which the police then showed him. All this was recorded. It is common ground that when this short interview was conducted the applicant had the advantage of the presence of a lawyer.

11. According to P5, however, he was willing to say something on 9 December in the course of the interview, of which P5 is said to be a record. The police asked the applicant why his name had been written incorrectly a few times in the September interview, and he was also asked about one other suggested error in the September statement. The evidence of the police officer who took the December statement was that before he took it he knew that the applicant was that day going to be charged with the handling offence. The admissibility of that statement was also challenged. It was contended that the applicant had said that he wanted his lawyer present, and that his lawyer was indeed on the way but that that facility was nonetheless denied. It is common ground that he was not at the time of that interview told that he was going to be charged. Since it was known that he was to be charged this failure to inform him of that intention is said to have constituted a clear breach of the rules for interviewing witnesses. It is also suggested in this regard that there was more than sufficient with which to charge the applicant before this statement was taken, and that he ought to have been charged well before he was in fact charged. Had he been charged timeously, it would have been improper, according to his argument, to ask the further questions which he was asked, and that, therefore, the record of this interview should also be excluded.

12. The applicant gave evidence on the voir dire in which he explained the course of his treatment at the hands of the police, making the assertions of improper behaviour to which we have referred.

The ruling on admissibility

13. The trial judge admitted the challenged statements, and he had this to say about the question of their admissibility:

"I am not obliged and do not intend to give reasons for the decisions which I made in regard to the two statements. Suffice it to say that the issue was one of credibility revolving around allegations of assault and the offering of inducements. Three police officers gave evidence. The Accused elected to give evidence. I was satisfied that the prosecution witnesses were truthful and reliable witnesses, upon whose evidence I could safely and should rely. The same could not be said for the Accused. I was satisfied that the prosecution had discharged the onus upon it.

However, I shall say this about Exhibit P5: it would have been better had it not been obtained from the Accused for two reasons - firstly, it was entirely unnecessary to correct what were patently obviously bona fide errors and, secondly, it was obtained in breach of the Rules and Directions for the taking of statements. The decision had already been made to charge the Accused before it was obtained and he should have been informed of this fact. In the circumstances of this particular matter I was of view that that single breach did not adversely affect the issue of admissibility."

The evidence of Suen

14. The prosecution then called a witness, the man Suen, the driver of the crane truck. He gave evidence about being taken to the compound and on arrival being given identity documents and boarding the truck and then driving across the border where he was promptly arrested, detained and in due course returned to the authorities in Hong Kong. He said that he had attended an identification parade at which he had identified the man who had driven him to the compound. He was not, however, according to his testimony, able to identify the applicant in court. He accepted that it was common to drive vehicles across the border at night even when doing so quite legitimately and, when ultimately it was put to him in cross-examination that all he could say about the man who drove him to the compound was that that man had merely introduced him to a person who wanted a long distance lorry driver, and that that man merely dropped him off at the site, Suen agreed.

The judge's findings

15. Then the judge found that there was a prima facie case for the applicant to answer. The applicant decided not to give evidence on the general issue. The judge was not at all impressed by the evidence of Suen. He says in his full and very clear Reasons for Verdict that the witness contradicted himself on important issues. He states that there were contradictions between that evidence and the evidence contained in P2, in particular on the question whether the two men had ever met before. He noted that Suen said in chief that he had no previous convictions, whereas this was demonstrably untrue; and he did not believe that Suen could not identify the applicant in court.

16. The judge took the view that the witness was prepared to agree with almost anything put to him. In short, save where the evidence of Suen was supported by other evidence the judge was simply not prepared to accept it.

17. He noted that he had been invited to revisit the question of the admissibility of the statements of the applicant in the light of the evidence of Suen which to a degree supported a case consistent with the applicant's suggested innocence, and contradicted certain assertions in P2. But, given the dim view that he took of the evidence of Suen, he concluded that that evidence gave him no qualms about the admissibility of the applicant's statements.

18. The judge said that it was evident that the vehicle in question had been stolen, and had already been appropriated by the time the applicant arrived at the compound. The applicant's handling of the vehicle which he found proved, as control of it by the applicant jointly with the thieves, was other than in the course of stealing. The judge clearly placed considerable weight on the statements made by the applicant, most particularly on P2. He was satisfied beyond reasonable doubt that the applicant knew or believed the vehicle had been stolen at the time he took Suen to it for the very purpose of driving it away and, accordingly, he convicted the applicant.

Ground 1: Admissibility

19. The first ground of appeal put forward by the applicant is that the trial judge erred in ruling the statements admissible. That is because, it is said, there were irreconcilable differences and inherent improbabilities in the prosecution evidence; clear breaches of the rules for the taking of statements; and insufficient to justify the court preferring the prosecution evidence to the defence evidence on the voir dire. It is further said that the evidence of Suen should have caused the judge to review his ruling on admissibility and to resolve that review in the applicant's favour. Further, because of the breach of the rules he ought to have excluded the statements in the exercise of his discretion.

20. As for the suggested inconsistencies we do not intend to refer to all of them. An example or two will suffice to illustrate the nature and strength of the arguments put forward.

21. Mr Jenkyn-Jones who appears on appeal for the applicant as he did at trial, and who has said on this application for leave to appeal against conviction all that can reasonably be said on behalf of the applicant, points to the evidence that the inspector in charge of the case instructed his subordinates to record the interview with the applicant on video, that is, the interview on 18 September. We know that that was not done. In other words, the applicant was not interviewed on video. The inspector gave evidence before the trial judge that he had issued that instruction and as to where the instruction was given. But Mr Jenkyn-Jones asserts that the interviewing officer (PW2) made no reference in his evidence in chief to the video instruction save when prompted. The point is bad. He was indeed prompted to recall the video question in the course of examination in chief but, looking at the questioning as a whole and the detail he then went into as to the instructions given and why the interview was not taped on video, we see no inconsistency. We see nothing ominous, in the context of the questions put, in the initial omission of the officer to mention the video instruction.

22. Then Mr Jenkyn-Jones asserts in his skeleton argument, which he adopts today, that there is another significant inconsistency, namely, that PW2 said that he took the applicant to room 305A because he wanted first to ascertain whether the applicant would consent to a video interview; whereas another officer (PW3) who accompanied the applicant to that room, said that it was natural to go to that room because that room was a room used to interview suspects. Yet one notes that that officer, PW3, was not given any instruction as to what to do with the applicant and, in saying that it was a room in which interviews were conducted, and that it was a natural room to go to, we see no inconsistency with the evidence of PW2. Indeed PW3's evidence was that he could recall no detail of any instruction given by the inspector. That being so, one would not necessarily expect him to be aware of any intention on PW2's part to video an interview, or of PW2's reason for taking the applicant to room 305A.

23. We note that the whole question of the video interview plan; where the applicant was first taken upon arrival at the police headquarters and why; why he was not interviewed on video in accordance with the instruction, - these were questions canvassed extensively in the course of examination and cross-examination before the judge. We think that it is idle to suppose that the judge could have been anything other than fully aware of the points that counsel for the applicant was seeking to make; and idle to think that the judge did not address the points in coming to his decision on the question of admissibility.

24. We see nothing in the evidence to show that the judge must have erred in the view he took about the reliability of the police evidence. The burden is on the applicant to show the judge's conclusion was not one which he could reasonably have reached and it is a burden which is nowhere nearly discharged in this case.

25. As for inherent improbability, it is said that it is highly curious for the applicant to have been released on bail after the statement of 18 September, especially when it was known that he resided on the Mainland. Mr Jenkyn-Jones says that his release demonstrates that the police were in fact aware of, and concerned about, the effect of that conduct on the applicant's heart condition. Again, these are matters which the judge must have had fully in mind, because they were canvassed extensively before him. It may be, for all we know, that the police wanted legal advice. There would have been nothing odd about that. The offence, though serious, was not of the most heinous kind and the applicant's release on bail suggests nothing to us which is startling or which casts serious doubt on the judgment of the trial judge as to the credibility of the police evidence.

26. It is said also that in the light of errors made in writing down the applicant's name it is highly improbable that the record of interview was read out. Again, the judge must have had this in mind. It was canvassed before him at great length. It was open to the judge to take the view, for example, that the text of the statements were read nonetheless and that the errors were not of so such significance, at the time of reading over, to require attention there and then. Whether this is the precise view he took we cannot say, but it may well be a view he could have taken. We do not see this to be anything like the devastating point which is suggested.

27. Other improbabilities are referred to. We see no reason to deal with each. None has real merit whether individually or collectively.

28. Then it is said that there was no basis upon which the judge could properly conclude that the applicant was not a reliable witness. It is said that there is nothing on the face of the transcript to indicate unreliability or untruthfulness. We disagree. Cross-examination of the applicant was revealing, and no doubt the judge had in mind points which there emerged; for example, the fact that, despite the beating which the applicant said he had received which left him lying almost prone on the floor, and the heart condition which was worrying him so, he did not after his release from the police station go and see a doctor. This applicant admitted that he was given lunch, released on bail, able to sign the statements in many places, provided information for the purposes of antecedent statements, and so on. None of this sat well with the story of abuse at the hands of the police such as then to cause the applicant serious concern for his own health; and it did not sit well with the story of complete disdain by the police for his welfare. The judge saw and heard the witnesses, and was entitled to come to the conclusions at which he in fact arrived.

29. In so far as it is said that the judge should have excluded the evidence in his discretion, the judge acknowledged that there was a breach of the rules, in spirit if not in detail, when P5 was taken. He had the question of discretion well in mind. It is said in the skeleton argument that the breach was indicative of a wholesale disregard of the rules by the police. That is a bald assertion, wholly unsupported by the nature of the breach or breaches to which counsel has been able to point.

30. As for the evidence of Suen and the contention that the judge should have revisited the question of admissibility of the statements, the plain fact is that he did revisit that question. Given that he was left with no respect for the evidence of Suen, his conclusion that that evidence had no impact on the admissibility of those statements was the only reasonable conclusion to which he could come.

31. There is thus no merit in the first ground of this application.

Ground 2: the evidence of Suen

32. The second ground is, with respect, no more meritorious than the first. It again relates to the evidence of Suen. Mr Jenkyn-Jones complains that the judge rejected the evidence of Suen even though the prosecution put him forward as a witness of truth. One is a little surprised that a point of that kind is taken. A judge is entitled to accept or reject the evidence of a witness regardless of the weight a party seeks to place on his evidence. In this case the judge gave full reasons for the view he took on Suen's evidence.

33. In so far as it is suggested then as a further complaint that in wrongly rejecting the evidence of Suen the judge deprived the applicant of the evidential value of Suen's evidence in undermining the admissibility of statements made by the applicant and the weight to be attached to them, the premise of the complaint is bad since the judge did not, as we find, wrongly reject the evidence of Suen.

34. It is said that the judge found contradictions within Suen's evidence which were not there, and that such contradictions as there were did not warrant the dismissal of this evidence. We find that the judge was entitled to take the view of this witness which he did. It is one of those cases, of which there are very many, in which judgments depend heavily on the advantage of being the trial judge seeing and hearing a witness. He was entitled to disbelieve the witness when he said he could not identify the applicant in court, to take a dim view of the inaccurate assertion that the handling conviction was his first conviction; to conclude that there were contradictions, and that the witness was overly ready to accept suggestions put. The judge thought him to be a poor and confused witness. We cannot, nor should not, on the material before us, second guess that assessment.

35. The final point taken is that the judge analysed the evidence of Suen incorrectly in saying that what was suggested to him in questioning was not evidence, whereas the witness had agreed to certain suggestions put to him. What the judge said was this:

"Not only was PW4's evidence self-contradictory but it was also confused. In the end, he appeared to be prepared to agree with almost any suggestion which was put to him. He agreed, in particular, with a number of suggestions put to him on behalf of the Accused: what is suggested or put to a witness is, of course, not evidence. It will be recalled that the Accused elected not to give evidence in this matter on the general issue. The failure of an accused to give or call evidence is no evidence of his guilt. The consequence of doing so is to leave the prosecution case, including, in this matter, his own statements made under caution, uncontradicted by evidence."

36. It can readily be seen that the judge accepted that Suen had agreed to certain suggestions made to him. The judge was not saying that Suen's answer did not constitute the evidence. What the judge was, self-evidently, saying was that Suen was prepared to agree with almost anything; and that suggestions in themselves were of scant use; that once he had rejected Suen's evidence, there was no reliable evidence to contradict the contents of P2. There is nothing wrong in that analysis.

37. Finally, Mr Jenkyn-Jones asserts that the judge was wrong to say that the prosecution evidence remained uncontradicted, given the failure of the applicant to give evidence himself on the general issues. It was contradicted, says Mr Jenkyn-Jones. It was contradicted by the evidence of Suen. If, as was the case, the evidence of Suen was rejected by the judge as valueless then there was nothing of worth to contradict the trustworthy prosecution evidence, and that is all that this judge was saying.

Conclusion

38. This is an unmeritorious application for leave to appeal against conviction, and it is dismissed.

Sentence

39. Upon the hearing of the application for leave to appeal against sentence, we announced our decision to dismiss the application and said that we would give reasons in due course. This we now do.

40. The judge said this about his approach to sentence:

"Chan Sik-ming [1996] 2 HKCLR 154 is authority for the proposition that where valuable motor vehicles are stolen in Hong Kong with a view to being removed from the territory into the Mainland the appropriate starting point for those involved in handling motor vehicles in question is one of 5 years imprisonment. Against that starting point one has of course to take into account the actual role which the Accused played. Looking at the role of the Accused in this matter, I would regard 3 years imprisonment as appropriate. This Accused is in his 30s and has no previous criminal convictions. I will allow a further reduction of 3 months."

41. He therefore sentenced the applicant to two years and nine months' imprisonment. In doing so, he took into account the fact that the lorry in question was worth about $300,000; that the applicant was rewarded some $3,000 for his role; had given false papers to the driver; that his role was the least serious of all those who were engaged in the theft and removal of the lorry; and that the driver was to receive $40,000 for his troubles.

42. It is contended that the sentence was wrong in principle and manifestly excessive, given the allegedly minor role played by the applicant, and also when compared with the sentence passed upon Suen.

43. The sentence, on its face, was neither wrong in principle nor manifestly excessive. The judge had in mind the decision in Chan Sik Ming [1996] 2 HKCLR 154. There, a driver intending to take a stolen 24 ton goods vehicle to the Mainland for a reward of $30,000 was said to merit a starting point of at least 5 years' imprisonment, the court taking pains to refer to earlier authority which emphasized the need for deterrent sentences for offences of this kind. To take a starting point in this case of three years, giving full cognizance to the role played by this applicant was to take a starting point which cannot properly be criticized by us.

44. However, Mr Jenkyn-Jones invited our attention to the disparity in sentence between this applicant and Suen, who was sentenced before a different tribunal upon a different occasion.

45. Suen had pleaded guilty before the Chief Judge of the District Court, HH Judge Hawkes, in October 1999, that is, some five months before the trial of this applicant. The desirability of the same tribunal sentencing accomplices in the same offence, and of doing so at the same time, has often been stressed. By the date of Suen's plea of guilty, this applicant had not been charged and, we suppose, though we do not know, that that is why these two men were sentenced at different times.

46. Suen pleaded guilty before the other tribunal and was sentenced to a term of 18 months' imprisonment for the handling of this crane lorry. The judge in the applicant's case said that he failed to see how, in the light of the tariff suggested by Chan Sik Ming, that sentence on Suen was reached. He added that he was bound, nonetheless, to pass upon the applicant a sentence which he considered to be appropriate for the offence.

47. We have been informed by counsel for the respondent that HH Judge Hawkes took a starting point in Suen's case of three and a half years' imprisonment. Suen had pleaded guilty to a second charge of use of an identity card belonging to another and for that a starting point of nine months' imprisonment was adopted. According to the notes of prosecuting counsel, Judge Hawkes was told in mitigation that Suen had spent two and a half months in custody on the Mainland before his return to Hong Kong; had rendered assistance to the authorities in Hong Kong which had led to arrests, including the arrest of this applicant; had attended an identification parade at which he had identified this applicant; and had given a witness statement to the police, with a view to testifying against the applicant. In those circumstances, Judge Hawkes said that a sentence of 20 months' imprisonment for the handling charge was appropriate, but that he would reduce it further to 18 months to reflect the fact that the applicant had already spent time in custody on the Mainland, for which he would otherwise receive no credit in Hong Kong. That is how the sentence of 18 months imprisonment was reached. For the other offence he was sentenced to six months' imprisonment, a sentence which was ordered to run concurrently with the 18 months' sentence.

48. The general principle, evidenced by such decisions as R v. So Hung Lee [1986] HKLR 1049, is that where different sentences are passed on different occasions on different accused for the same offence the relevant consideration, indeed the only consideration, is whether the sentence passed on the appellant was appropriate. However, Mr Jenkyn-Jones invited us to say that this principle has been doubted, and that the courts are prepared to adjust sentences by a comparison with sentences passed in relation to the same offence but by other tribunals on a different occasion. We do not consider it necessary to examine this argument (or indeed to go into the question of the appropriate starting point for Suen), because it could not in any event avail this applicant, since there is no question in our judgment of the disparity in this case being of the glaringly disparate, or worrying or inappropriate kind which would warrant this court's interference. The man Suen pleaded guilty; this applicant did not. The man Suen gave information to the police which led to arrests and, ultimately, to this applicant's prosecution; this applicant can pray in aid no such mitigation. The judge took into account Suen's intention to give evidence against the applicant, though in doing so he was being generous because matters then were only at the promissory stage. Suen had already spent time in custody in another jurisdiction in respect of the conduct for which he was later sentenced in Hong Kong, and the period spent in custody on the Mainland could not count towards his sentence. No such factor came into play in the applicant's case.

49. It is undoubtedly the case that Suen as the driver took a more prominent and risky role in the escapade than did the applicant. That explains why a starting point of 3 1/2 years' imprisonment was taken in his case as opposed to the starting point of 3 years' imprisonment for the applicant. But the fact that Suen received an 18 month sentence, and this applicant a sentence of two years and nine months, reflected the mitigation available to Suen and the relative absence of any available to the applicant. Thus, the difference in their ultimate sentences cannot in any event and in the light of the factors we have enumerated be said to present an unwarranted disparity of the kind which would justify interference by an appellate court.

50. There is, accordingly, no merit in this application. For these reasons, the application for leave to appeal against sentence was dismissed.