HKSAR v. MAK HO YIN

CAC C 46/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 46 OF 2011

(ON APPEAL FROM DCCC NO. 206 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 21 January 2011, after a trial in the District Court before Deputy District Judge Anthony Yuen, the applicant was convicted of the following three offences: possession of false instruments, contrary to s. 75(2) of the Crimes Ordinance, Cap. 200; handling stolen goods, contrary to s. 24 of the Theft Ordinance, Cap. 210, and possession of an identity card relating to another person, contrary to s. 7A(1A) of the Registration of Persons Ordinance, Cap. 177.

2.  The applicant was sentenced to 30 months’ imprisonment in respect of each offence, the sentences to be served concurrently.

3.  The applicant sought leave to appeal his conviction on all three charges.  Having heard submissions, we refused leave to appeal in relation to the first and third charges.  In respect of the second charge, we granted leave but dismissed the appeal.  We said that we would give our reasons later and do so now.

Background

4.  In the early hours of the morning of 17 December 2008, a security guard found a bag in the pump room of a residential building called Sau Shan House in Cheung Shan Estate, Tsuen Wan.  When the guard had inspected the room a few hours earlier the bag had not been there.

5.  The pump room was not open to the public.  It was kept locked by means of a padlock, the keys being in the custody of the management office.

6.  The bag was found to contain a number of items.  These included: first, a series of bank cards in various names, all of which were forged (the subject of the first charge); second, a series of genuine bank cards, business membership cards and the like in various names that had been lost or stolen (the subject of the second charge) and, third, a Hong Kong identity card bearing the name Chu Hong Kan (the subject of the third charge).

7.  In addition, the bag was found to contain a number of SIM card holders, letters, envelopes and sheets of paper with personal particulars written on them.

8.  Certain of the materials found in the bag were related to the applicant.  More particularly:

i.     There was a letter from the Yan Chai Hospital addressed to the applicant at Room 2122, Sau Shan House, that address being several floors above the pump room, and

ii.    the applicant’s fingerprints were found on two papers found in the bag; first, on a letter addressed to a person named Mak Yee Ling and, second, on one of the sheets of paper inscribed with personal particulars, those particulars including the name Man Kwok Leung Ryan.

9.  On the afternoon of 17 December 2008, the police went to Room 2122, entering the premises at about 6.00 pm.  The applicant was inside the premises together with five young women and a young man named Wong Chun Wai, the latter being called at trial as a defence witness.

10.  It was not disputed that at that time the applicant lived in the premises together with his mother and father, an elder sister and Wong Chun Wai.

11.  Two of the rooms in the flat were locked, the keys being in the possession of the applicant’s parents.  Those two rooms could not be searched until the parents returned.  Nothing was found in those rooms.

12.  A search of the rest of the premises resulted in the seizure of a number of items, the following being of particular importance to the prosecution case.

13.  First, on a table in the living area and in the applicant’s bedroom (on top of his computer), three pieces of paper were found inscribed with personal particulars, the papers being similar to papers found in the bag.

14.  Second, on the bunk bed in the applicant’s bedroom a SIM card was found bearing a serial number.  That serial number matched the serial number on a SIM card holder found in the bag.

15.  Third, a computer was found at the end of the bunk bed in the applicant’s bedroom.  Data from the hard disk was reduced into two hard copies, exhibits 100 and 101.

16.  Exhibit 100 gave details of purchases made online by various persons.  One of the names appearing in the exhibit was that of Man Kwok Leung Ryan.  As we have said, that name was to be found on a piece of paper that had been found in the bag, that piece of paper bearing the applicant’s fingerprint.  A second name appearing in the exhibit was that of Lo Ling, that name being inscribed on another piece of paper found in the bag.  A third name appearing in the exhibit, that of Cheng Dellie, was the name appearing on a forged American Express credit card found in the bag.

17.  Exhibit 101 consisted of a number of images.  In respect of them, the judge observed that they included bank cards, Hong Kong identity cards and various types of forms.  However the images were of poor quality, sometimes so blurred that their particulars could not be made out.

18.  A further item of significance found in the premises was a bunch of keys.  One of the keys found on the bunch fitted the padlock to the pump room.

19.  At trial, there was no dispute as to the contents of the bag found in the pump room, the pump room being just a few floors below Room 2122, nor the fact that two of the papers found in the bag bore the applicant’s fingerprints.  Nor was there any dispute as to the items found in Room 2122, those items – for example, the serial number on the SIM card and the data recovered from the applicant’s own computer – establishing a direct link between him and the bag.

20.  The only matter in dispute at trial related to the exact circumstances in which the bunch of keys came to be found by the police. It was the prosecution case that it was in the physical possession of the applicant.  It was the applicant’s contention that, while the bunch of keys had been found in the premises, it had been found on the table in the living area and not in his physical possession.  As the judge expressed it in his Reasons for Verdict:

“There is no dispute that the bunch of keys, one of which fits the padlock of the pump room on the 14th floor, was found inside the defendant's home. The only dispute is whether or not it was found in the defendant's possession.”

21.  The judge came to a finding of fact that the bunch of keys had been seized from the applicant himself.

22.  Before us, for all effective purposes, it was that finding, and that finding alone, that was challenged on appeal.  Both grounds of appeal advanced by Mr Paul Lee on behalf of the applicant were integral to the issue.  It will therefore be necessary to consider the evidence related to the issue and the findings of the judge in respect of it.

23.  Before doing so, however, we are constrained to observe that, on any objective evaluation of the evidence as a whole, even if the judge was in error in finding that the bunch of keys had been in the physical possession of the applicant and should properly have come to a finding that it was found on the table in the living area, the case against the applicant remained an overwhelming one.  On that basis, even if the applicant was successful in his two grounds of appeal, the appeal was still bound to fail.

24.  At trial, the applicant chose to testify and, as we have said, called Wong Chun Wai as a witness for the defence.

25.  The applicant denied going into the pump room at any time or having any knowledge of the bag and its contents.  Although he accepted that they had been found in his premises, he denied any knowledge of the SIM card found on his bunk bed or of the pieces of paper inscribed with personal particulars, two sheets having been found on top of his computer and one sheet having been found on the table in the living area.  He further denied any knowledge of the data found on the hard disc of his computer.  As we have said, although he accepted that the key giving access to the pump room had been found in his premises, he denied any knowledge of it.

26.  How then, if at all, did the applicant attempt to explain the evidence against him?

27.  The applicant testified that in early August 2008 he and Wong Chun Wai (Wong being effectively a family member) had moved from Room 2122 to share an apartment in Tsuen Tak Gardens, Tsuen Wan, with a woman named Mak Yee Ling and her boyfriend.  It had not been a prudent move.  There was an argument over whether Mak Yee Ling’s boyfriend had stolen things from the applicant.  In the result, said the applicant, he and Wong had made the decision – on the turn – to leaveTsuen Tak Gardens and return to Room 2122, Sau Shan House.  This was done, he said, just three or four days before the discovery of the bag in the pump room.

28.  The applicant said that, during his time at Tsuen Tak Gardens he had been working long hours.  He was aware, however, that in his absence Mak Yee Ling had used his computer and it could be that she was responsible for the incriminating data on the hard disk.

29.  It was further the applicant’s case that, when he moved out of Tsuen Tak Gardens, he did so very hurriedly, asking Wong, who was moving out with him, to pack his things.  Wong supported the applicant in this regard, saying that he had simply packed everything without checking if some of it belonged to Mak Yee Ling or her boyfriend.

30.  As to the three pieces of paper inscribed with personal particulars found in Room 2122, the applicant could only presume that they must have been the property of Mak Yee Ling or her boyfriend or of some other third party which Wong had packed by accident in his hurry to depart from Tsuen Tak Gardens.  The same would have applied to the SIM card.

31.  It was equally implicit in the applicant's defence that papers found in the bag in the pump room which referred to him, for example, the letter from Yan Chai Hospital addressed to him at Room 2122, must have been left by mistake at Tsuen Tak Gardens.

32.  As to the two papers found in the bag bearing his fingerprints, the applicant could only presume that, although he knew nothing of them, he must have touched them during his time at Tsuen Tak Gardens.

33.  Implicit in his defence therefore was the suggestion that it may have been Mak Yee Ling, her boyfriend or some other parties connected with them in some way who had packed up the materials that were found in the bag, including papers that the applicant had left by mistake at Tsuen Tak Gardens or had touched while he had been there.

34.  Denying any knowledge of the bag, the applicant was in no position to explain why anybody would wish to place the bag in the pump room in the applicant’s own building.  Equally, denying any knowledge of the bunch of keys, the applicant was in no position to explain how, within 24 hours of the bag being found in the pump room, a key giving access to the room had come to be found in his home.  Mak Yee Ling was not one of the young women found in Room 2122 when the police went to the premises nor was there any suggestion that she or any of her associates had come to the room.

35.  The judge rejected the evidence of the applicant and his witness, Wong, as being “inherently incredible”, setting out in detail why he found it to be so.  It was a finding fully open to him.  At best, the defence case was contrived and threadbare.

The issue of the bunch of keys

36.  Evidence concerning the keys was given by two officers.

37.  D/Sgt Chan Tai Shing testified that, when he entered Room 2122, he spoke to the applicant.  He found a bunch of keys in his physical possession and took it from him.  Although he later recorded that he had found the bunch in the applicant’s physical possession, he had not recorded exactly where.  However, he remembered that they had been in one of the applicant’s trouser pockets.

38.  D/Sgt Chan said that, when he asked whose keys they were, the applicant said that they were his.  D/Sgt Chan admitted that he had failed to record this brief exchange.  The keys were immediately tested to see if they fitted the padlock to the pump room which another member of the police party had brought to Room 2122.  D/Sgt Chan said that he was the one who tested the keys and found that one of them fitted the padlock.  He then arrested the applicant and cautioned him, making mention of the material found in the bag in the pump room.  In reply, the applicant said: “the stuff is not mine”.  Details of the arrest were duly recorded.

39.  D/Sgt Chan said that the arrest took place at 6.15 pm, 15 minutes after they had entered the premises.

40.  In his examination-in-chief, D/Sgt Chan was not asked to account for his handling of the bunch of keys thereafter nor was he questioned as to that issue during cross-examination.  It is significant however that the officer testified that he was able to identify the individual key which fitted the padlock because, for memory purposes, he had put a label on it.  That he had done so was never disputed.  The bunch of keys was given the exhibit number P60.

41.  When the applicant testified, he said that the bunch of keys had not been in his physical possession; he had been wearing a pair of underpants only and not trousers.  He denied making any admission that the keys were his.  He said that D/Sgt Chan’s evidence as to the testing of the keys in his presence and his immediate arrest and caution thereafter was not true.

42.  DSPC Cheung Man Yan testified that it was his duty to seize exhibits found in the premises.  This exercise he said was only completed at about 7.30 pm.

43.  DSPC Cheung said that he was present in the premises when D/Sgt Chan arrested the applicant and was a witness to it.  He denied the suggestion put to him by defence counsel that there had been no arrest in the premises itself.

44.  DSPC Cheung said that during the course of his search he seized the bunch of keys identified by him as exhibit P60, that is, the same bunch as identified by D/Sgt Chan.  The keys, he said, were found by him on the table in the living area.  He was asked nothing further about that matter either in examination-in-chief or in cross-examination.

45.  The judge rejected the applicant’s testimony, supported by Wong, that he had only been wearing underpants without pockets at the time when the police entered the premises.  In so doing, he took into account the uncontested evidence that the applicant had invited the young women found in the premises to come across for a social gathering and was also planning to go with his girlfriend to see a film, the girlfriend in fact entering the premises at the same time as the police.  These circumstances, the judge found, supported the police evidence that the applicant was dressed at the time.

46.  The judge went on to recognise that there was ‘a gap’ in the prosecution case as to what happened to the bunch of keys, exhibit P60, after D/Sgt Chan had arrested the applicant and before DSPC Cheung had found them on the table in the living area.  In this regard, he said:

“There is, indeed, a gap between the evidence of [the two officers] as to where police found the keys. [DSPC Cheung] said they were on top of the table in the living room, while [D/Sgt Chan] said he searched the defendant and found them in the defendant’s trouser pockets. But there is clear evidence that immediately after [D/Sgt Chan] found the keys, he tested them with the padlock seized at an earlier time. Therefore, it is possible that after testing the padlock, [D/Sgt Chan] placed the key on a table inadvertently, and then [DSPC Cheung] seized it from the table later on. In any event, I found that this is only a gap which can be explained by the circumstances and not an inconsistency between the evidence of [the two officers].”

The first ground of appeal

47.  Mr Lee submitted that the difference in the evidence of the two officers concerning the finding of the keys constituted not simply a ‘gap’ in the prosecution case but constituted a direct inconsistency, one that could not be resolved by the judge speculating as to some form of conduct on the part of D/Sgt Chan, namely, “inadvertently” placing the bunch of keys on the table.

48.  While, as the judge recognised, there was a small lacuna in the prosecution case, we rejected Mr Lee’s submission that it constituted a direct inconsistency in that case.

49.  D/Sgt Chan was never questioned by the prosecution or the defence as to what he did with the bunch of keys after he had arrested the applicant.  The evidence was silent on that issue.  Nor was D/Sgt Chan questioned by the prosecution or the defence as to when he put the label on the key that fitted the padlock, whether he did so at the premises or at some later stage.  The evidence was silent on that issue also.

50.  DSPC Cheung testified that during the course of his search, which went on for more than an hour after the applicant's arrest, he saw the same bunch of keys, that is, exhibit P60, on a table in the living area – the prosecution evidence being that the applicant had been arrested in the living area – and that he then seized it.

51.  The missing portion of the prosecution case went to what happened to the bunch of keys after D/Sgt Chan had arrested the applicant and DSPC Cheung found it on the table.  As happens in a great many cases, it was therefore necessary for the judge to determine, in light of that missing portion of the prosecution case, whether he could be sure, on a consideration of all the evidence that was before him, that the keys had been found in the physical possession of the applicant as described by D/Sgt Chan and that the same set of keys at a later stage came into the possession of DSPC Cheung whose responsibility it was to seize exhibits in the premises.

52.  It was submitted that the judge conducted an exercise of impermissible speculation in order to fill the lacuna.  In our view, that was to misread the judge’s reasoning.  The judge did not come to a finding of fact that D/Sgt Chan had inadvertently placed the keys on the table; he said only that it was a possibility.  That possibility was put forward as an example to illustrate how it was that the judge was able to conclude that, having regard to the evidence as a whole, he had no reason to think that the absence of this particular portion of the evidence may itself have indicated an inconsistency.  As he said: “I found that this is only a gap which can be explained by the circumstances and not an inconsistency between the evidence of [the two officers]”.

The second ground of appeal

53.  By way of an extension of his first ground of appeal, Mr Lee submitted that, in determining the issue of whether the applicant had been in physical possession of the bunch of keys, the judge had failed adequately or at all to take into account aspects of D/Sgt Chan’s testimony that revealed him to be an inherently unreliable witness.  Mr Lee submitted that the evidence of D/Sgt Chan should have been found to be inherently unreliable for two reasons.

54.  First, although the officer had made a record of the fact that the bunch of keys had been found on the applicant’s body, he had not made a record of where exactly on the body it had been found.  More than two years after the event, however, when cross-examined, he had purported to remember that it had been in one of the applicant’s trouser pockets.

55.  It was for the judge to consider the evidence in context.  In this regard, he came to a finding of fact that the applicant had been dressed, that is, that he had been wearing trousers at the time and had not been half naked, wearing merely underpants without pockets.  This finding supported the important aspect of D/Sgt Chan’s testimony, namely, that he had found the bunch of keys on the applicant, that is, in his possession.  In this regard, the judge said:

“… the police evidence was supported by the circumstantial evidence and I, therefore, accept the police evidence that the bunch of keys was, in fact, found in the defendant’s possession.”

56.  The judge made no specific finding that the keys had been found in one of the applicant’s trouser pockets.  It was not necessary for him to do so.  The fact that the judge found D/Sgt Chan to be ‘truthful and honest’ did not mean that he had to accept the accuracy of everything he said, especially when, on the officer’s own admission, he was being asked to remember matters not of central importance that had not been recorded in either his notebook or his witness statement.

57.  The second and more fundamental criticism made by Mr Lee was that D/Sgt Chan had failed to make a record of what he said had been a brief exchange between himself and the applicant when the bunch of keys had first been seized, namely, that he had asked the applicant whose keys they were and the applicant had replied that they were his.

58.  Again, however, nothing appears in the judge’s Reasons for Verdict to indicate that he placed any reliance on this particular piece of evidence.  As we have set out above, his finding was limited to the fact that the bunch of keys had been found in the applicant's possession.  Considered in the context of the evidence as a whole, that was sufficient.

Granting leave to appeal in respect of the second charge

59.  The second charge was one of handling stolen goods.  Of the 17 items listed in the charge, the judge found the charge proved in respect of 11 of them.  In doing so, he said:

“… it is clear that they were stolen items and were stolen within 12 months before they came into the defendant’s custody and control, and therefore s. 29 of the Theft Ordinance applies.”

60.  In respect of this finding, counsel for the respondent, Mr Tam, very properly, drew to our attention that, read in context, reference to s. 29 could only be reference to s. 29(3)(a) of the Theft Ordinance which provides that:

“Where a person is being proceeded against for handling stolen goods (but not for any offence other than handling stolen goods), then at any stage of the proceedings, if evidence has been given of his having or arranging to have in his possession the goods the subject of the charge, or of his undertaking or assisting in, or arranging to undertake or assist in, their retention, removal, disposal or realisation, the following evidence shall be admissible for the purpose of proving that he knew or believed the goods to be stolen goods –

a)  evidence that he has had in his possession, or has undertaken or assisted in the retention, removal, disposal or realisation of, stolen goods from any theft taking place not earlier than 12 months before the offence charged; and

b)  (if 7 days notice in writing has been given to him of the intention to prove the conviction) evidence that he has within the 5 years preceding the date of the offence charged been convicted of theft or of handling stolen goods .”

61.  As counsel for the respondent pointed out, s. 29(3)(a) is only to be invoked for the purpose of demonstrating that, within a period of 12 months of the date of the offence charged, either before or after it, other stolen property – that is, property other than that listed in the charge – had been found in the possession of a defendant, or that he had in some other manner ‘handled’ that other property.

62.  Clearly, therefore, the judge misdirected himself in holding, or appearing to hold, that, pursuant to s. 29(3)(a), once it was shown that property, the subject of the second charge, had been stolen less than 12 months before coming into the possession of the applicant, that evidence was admissible for the purpose of proving that the applicant knew or believed that property to be stolen.

63.  It was on the basis of that material misdirection that leave to appeal was granted, though it was not an error alighted upon or prayed in aid by counsel for the applicant.

64.  The issue therefore was whether the proviso should be applied.  Was it inevitable that a judge properly directing himself would have concluded that, in handling the stolen goods the subject of the second charge, the applicant knew or believed them to be stolen?  Considered in the context of the evidence as a whole, we had no doubt that such a conclusion would have been inevitable.  It was on that basis therefore that the appeal in respect of the second charge was dismissed.

Conclusion

65.  By way of conclusion, it is appropriate to mention two matters.  First, Mr Tam must be commended for the professional discharge of his duties as respondent’s counsel.  As we have said, it was he who identified the judge’s misinterpretation of s. 29(3)(a) of the Theft Ordinance.  Second, we must express our concern that an appeal which, on any objective evaluation was demonstrably misconceived and therefore doomed to failure, was advanced before us.  We considered the question of loss of time served but in light of the point drawn to our attention by Mr Tam, decided to make no order.  A case that is wholly unmeritorious is a case which consumes much judicial time, puts back meritorious cases, and wastes public funds.