HKSAR v. CHAN TAK KWONG

HCMA945/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.945 OF 1998

--------------------

--------------------

----------------------

J U D G M E N T

----------------------

1. The Appellant was convicted of two charges before a Magistrate, (1) assault occasioning actual bodily harm, and (2) theft. He now appeals against both convictions.

2. Only one witness gave evidence before the Magistrate for the prosecution and the Appellant elected not to testify.

3. According to PW1, the victim of the offences charged, he had a light goods vehicle ("LGV") bearing registration number FC 8094. The LGV was used by him for containing and transporting a large quantity of diesel, about 4,000 liters. He wanted to sell the LGV. The LGV was in such a state that it was to be scrapped. However, he intended to sell it and according to him, if ownership could be transferred, the price should be about $10,000 but otherwise it should be about $8,000.

4. PW1 placed the LGV with an acquaintance of nine months who worked in a garage for the purpose of selling it on 1 April 1998. On 2 April, PW1 was informed by the garage that the LGV had been sold, for $20,000. He went to collect the money, and after $1,000 was deducted for the garage commission, he obtained $19,000 cash. On 3 April, while he was queuing in a bank for paying the cash into his bank account, he received a telephone call from the garage telling him that the new owner of the LGV complained that it had problems and wanted to meet with him. They agreed to meet at the doorway of Kam Sing Bank at Lam Tei.

5. In examination-in-chief, PW1 said that at about 10:30 a.m. on 3 April 1998, he went to Lam Tei. He saw the Appellant with another person. PW1 was told to go to Anderson Quarry, the locus in quo, with them. Upon arrival at the quarry, the Appellant hit him. Foul language was spoken about PW1 making a fool or taking advantage of the buyer of the LGV. The Appellant asked him for money, in the sum of $60,000. PW1 refused. The Appellant took a spade and hit him several times on his left arm, right shoulder and right arm, causing some swelling. PW1 was scared and as it was said that he would not be released before he got some money, he took the purchase money out of his pocket. The Appellant took the money in the sum of $18,000. The Appellant then told PW1 to get the remaining amount of $42,000 before 7 p.m. At the beginning, PW1 intended to give the Appellant the remaining amount, but afterwards since PW1 could not obtain that amount, he reported to the police. He did not consent to giving his money taken by the Appellant at the quarry.

6. That evening, PW1 talked to his wife and decided to go to see a doctor. At the time he saw the doctor, he also reported to the police.

7. In cross-examination, PW1 said he had used the LGV to transport marked oil, i.e., diesel not licensed to be trafficked in Hong Kong. He admitted that he had a previous conviction for being involved in selling marked oil, a conviction of deception and another conviction of assaulting police officers. PW1 intended to end his illegal diesel business and that was why he wanted to sell the LGV. On 3 April 1998, he went to Lam Tei and saw the Appellant and the LGV in a car-park. He helped the Appellant pump out diesel from the LGV into buckets on the floor, because diesel was leaking from the LGV. He did not disclose to the Appellant that he was the seller of the LGV. In the course of the pumping, the Appellant left for about half an hour, presumably talking over the telephone. When he returned, the Appellant appeared to know that PW1 was the seller and was angry with him. The Appellant told PW1 to go to the quarry and PW1 did.

8. From 4 to 23 April 1998, PW1 gave six statements to the police about the matter. In none of his six statements did he mention the incident at the car-park. He also agreed in cross-examination that he intended to pay compensation to the Appellant when he attended the meeting. One of the ways he intended to deal with the complaint about the LGV was to pay the purchase money to the buyer and get the LGV back. Compensation was one of the things raised by himself upon his meeting the Appellant. He also testified that the Appellant told him that the Appellant would get triads to deal with the matter if PW1 did not get the money (the remaining amount of $42,000) for the Appellant. However, this was never mentioned in any of his six statements to the police. On the contrary, in his statement of 4 April, he told the police that the Appellant had not mentioned that he would do something bad to PW1 if PW1 did not pay.

9. PW1 admitted that the Appellant told him that because of the oil leak of the LGV, the Appellant had crashed his Mercedes Benz, had lost the oil leaked and lost business. The Appellant told PW1 that his losses came to a total of $60,000. PW1 agreed at least on two occasions in cross-examination that the incident between him and the Appellant was not theft, but merely the giving back and getting back of $18,000 compensation. However, later, he disagreed that the Appellant had not stolen the money from him. I will deal with PW1's other evidence later.

10. In his Statement of Findings, the Magistrate stated that having carefully considered all the evidence, he found the following :

(a) PW1 was an honest, truthful and reliable witness, and he accepted PW1's evidence;

(b) the Appellant had assaulted PW1 in the manner as described by PW1, and that the injuries as sustained by PW1 were caused by the Appellant;

(c) the Appellant was dishonest when he took $18,000 away from PW1 and the Appellant intended to keep it permanently; and

(d) the Appellant had no rights whatsoever in the circumstances to take away the $18,000 from PW1.

He was satisfied that the prosecution had proved the two charges against the Appellant beyond all reasonable doubt, and convicted the Appellant.

11. Counsel before me, who also acted for the Appellant before the Magistrate, submitted that the convictions were unsafe and unsatisfactory. In the grounds of appeal, a number of complaints are set out, namely, that the Magistrate failed to :

(a) consider the fact that PW1 was a man who had sold a vehicle he knew was fit for scrapping only to the Appellant at an inflated price;

(b) appreciate that it was PW1 who had gone to meet the Appellant on the day in question with the firm idea of paying compensation to the Appellant;

(c) consider the fact that even though PW1 firmly intended to give back money to the Appellant, it was not something which PW1 told the police. In other words, what PW1 intended to do on the day in question and what he told the police were entirely different versions. The Magistrate failed to consider these two versions properly or at all;

(d) consider the implausible evidence of PW1 in relation to giving a witness statement. PW1 stated that he had "no idea what the police wrote down" and that the police did not record what he said. Matters were written down by the police in his witness statement that were not uttered by him;

(e) consider that it was only at the trial that PW1 mentioned a triad-related threat from the Appellant, this despite six separate witness statements in which no such threat was mentioned;

(f) consider the fact that in PW1's cross-examination, he admitted that in his statements to the police that the Appellant had not said that something bad would happen to him if there was non-repayment of the money. This contradicted PW1's earlier evidence in cross-examination that the Appellant had made a triad-related threat to PW1 at the time the Appellant was asking for repayment;

(g) consider carefully that at various times in PW1's cross-examination, he clearly admitted that the incident in question concerned compensation, not theft; and

(h) consider section 3(1)(a) of the Theft Ordinance, Cap.210 when determining whether or not the Appellant was dishonest when he took the $18,000 from PW1. This was especially important when it was the case that the Appellant had been sold a vehicle which was fit for scrapping only and effectively the incident clearly involved the Appellant trying to get back his money.

12. Counsel for the Appellant also complains that the finding of dishonesty by the Magistrate was not the only inference capable of being drawn, nor was it an overwhelming inference. Further, the finding of the Magistrate that PW1 was a reliable witness was wrong, as it is submitted that from the whole of the evidence and the examples shown in the grounds of appeal it is clear that PW1 was certainly not a reliable witness.

13. Although it is clearly shown in the transcript of the evidence and the Statement of Findings that the Magistrate had considered the evidence very carefully, warned himself of the danger to convict on an admitted criminal's evidence, and applied the considerations in R v Ghosh [1982] 1 QB 1053, I am left with considerable anxiety when examining the evidence of PW1, which was the only evidence before the Magistrate.

14. I have little hesitation to agree with counsel for the Appellant that PW1 was certainly not reliable, as the Magistrate found him to be so. There are examples of unreliability. I think it suffices to just deal with a couple of them.

15. PW1 did not tell the police about the fact, which he admitted in cross-examination, of his meeting with the Appellant in the car-park and helping the Appellant pump oil out of the LGV. This is an important aspect of the incident because during the early part of the meeting in the car-park, PW1 did not reveal to the Appellant that he was the seller of the car. He posed as someone who was merely helpful. When the Appellant found out this fact over half an hour later, one would think that there was every reason for the Appellant to be angry. There might have been a number of purposes why PW1 did not tell the police about this encounter in all his six witness statements, made between 4 April and 23 April. I cannot conceive any possible reasoning that could justify PW1's reticence on this matter without affecting his reliability. No can Mr Lam for HKSAR, when invited by me to do so. The Magistrate, however, did not specifically deal with this matter in his verdict or his Statement of Findings.

16. Despite his being specifically asked by the police, PW1 did not mention in any of his six statements that the Appellant had told him that that if he did not pay, the Appellant would have the matter dealt with by triads, which was PW1's testimony. In fact, PW1 answered "No" when asked by the police if the Appellant had said that something bad would happen to PW1 if PW1 did not pay. This is a very significant discrepancy on the issues material to the charge of theft that the Appellant was facing, but the Magistrate accepted PW1's explanation that he was confused when he gave the statements to the police. I consider that insufficient weight had been accorded to this discrepancy by the Magistrate, in view of the totality of the evidence. PW1 admitted having been convicted of three crimes, i.e., selling marked oil, deception and assaulting police officers. He must be a person with at least some experience with crime and with the police. He might well have been scared and confused when he first reported the incident to the police on the night of 3 April. He might be excused for not mentioning the triad-related threat to the police in his first statement of 4 April. But he gave five other witness statements during the following 20 days, in none of which was the alleged threat mentioned. He intended to sell the LGV which he knew to be worth only as a scrap for a grossly inflated price. He was willing to meet the Appellant to talk about the LGV with a view to settle the matter with compensation. It was only when the Appellant told him that the compensation would be $60,000 and that he could not pay the difference between this sum and the $18,000 that was obtained from him by the Appellant that he decided to report to the police. The admitted purpose was to get the Appellant off his back, so that PW1 did not have to pay a further $42,000.

17. The Magistrate also failed to place sufficient weight on PW1's admission on no less than two occasions that the incident was not theft but compensation, although PW1 did say that he did not consent to the Appellant taking the $18,000. I view that the Magistrate did not place sufficient weight on the admission because no reason was given by him why he considered the taking of the $18,000 dishonest according to the ordinary honest man's standard and why the Appellant must have been dishonest in taking that money, although the Magistrate stated that he had applied these two-stage considerations laid down in R v Ghosh. Was the amount too large as for an ordinary honest man to conclude that taking it, which was only part of the price, from the seller of such a broken-down vehicle must be dishonest? In this case, where according to PW1, the LGV was sold for $20,000, and it was admittedly leaking oil, would $18,000 be reasonable compensation? Nor did the Magistrate, when finding that the Appellant was dishonest in taking the $18,000, seem to have considered the Appellant's alleged losses admitted by PW1 to have been mentioned when the Appellant wanted $60,000 as compensation. Mr Lam for HKSAR submits that the linchpin was the demand for $60,000, apparently implying that as that sum was three times the amount of the price as understood by PW1, the taking of $18,000 with a remaining balance of $42,000 must be dishonest. That, however, would depend on whether the Appellant's alleged losses consequent upon the use of the LGV were true, which was not specifically considered by the Magistrate. For my part, I cannot say for sure that against both of these considerations in respect of the question of dishonesty laid down in Ghosh that the Appellant must have been dishonest. The Magistrate was in no better position than I or anyone else in judging the dishonesty or the lack of it on the part of the Appellant, because dishonesty is according to the standard of a reasonable honest man and relates to the subjective state of mind of the accused. The Appellant did not testify before the Magistrate. All the Magistrate could rely on was the evidence of PW1 and his evidence is set out fully in the transcript. It is therefore not a matter of believing or not believing PW1 for the Magistrate to come to the conclusion of dishonesty. Rather, it is by the examination of all the evidence for an inference of dishonesty or otherwise being drawn.

18. Having considered all the evidence, despite my not having the advantage that the Magistrate had in observing PW1 in the witness box, I must say that this case left me with a lurking doubt whether one could be sure that the Appellant was guilty of the charge of theft. This doubt relates to whether he was dishonest when he took the $18,000 from PW1. PW1 and the Appellant agreed to meet to talk about the LGV which was obviously hardly usable, and both of them intended to talk about compensation. If the losses suffered by the Appellant were in fact higher than the price, it does not appear to me that the compensation he sought would have made him dishonest. The claimed losses being true is not something that can or should simply be brushed aside, although the Appellant did not give evidence. PW1 admitted that the Appellant told him the three heads of damage caused by the LGV. That is a matter that should be carefully considered, and when considering it, I cannot be sure that all the three heads of damage must be untrue. The evidence of PW1 that oil was leaking from the LGV inside the car-park and he had to help pump out the oil, on the contrary, shows that there must be oil lost with the use of the LGV, whereby at least one of the three heads of damage claimed by the Appellant is true. In all the circumstances, I think I am bound to allow the appeal against the conviction of theft.

19. I now turn to the conviction of assault occasioning actual bodily harm. PW1 testified that upon his arriving at the quarry, he was assaulted by the Appellant. It is not clear from the record if by this assault, PW1 meant a different occasion from that with a spade by the Appellant when PW1 expressed that he did not wish to pay. In one of his statements to the police, he said that upon his arrival at the quarry, he was punched by the Appellant, and he confirmed that in evidence. There may or may not therefore be a discrepancy relating to the evidence on the assault or assaults. Counsel for the Appellant formally admitted before the Magistrate that PW1 was examined by a doctor in Tuen Mun Hospital at 11:00 p.m. on 3 April 1998 with findings of multiple abrasions over both shoulders and an abrasion on the right forearm. It was never suggested to PW1 that he created these abrasions or that the abrasions were not the result of the assaults by the Appellant. What Mr McGuinniety challenged before the Magistrate was that there was no evidence of the age of the abrasions, and therefore there was no link between the assault alleged by PW1 and the abrasions suffered by him. That argument is repeated before me. As Mr Lam points out correctly, the medical evidence can be used to show consistency of PW1's evidence. Mr McGuinniety surely cannot argue that the medical findings are inconsistent with the evidence of the assault.

20. Mr McGuinniety also submits that since the Magistrate based the convictions on his accepting PW1 as an honest, truthful and reliable witness, if I find that the Magistrate was wrong in that, PW1's evidence of the assault cannot be a sound basis for a conviction. Nonetheless, it is not challenged, nor can it be challenged, that the evidence of each charge must be considered separately. The Magistrate's finding of PW1 to be honest and truthful was based on PW1's frank and straightforward admissions that he had used the LGV to transport diesel illegally, that he overcharged for the LGV, and that he reported the matter to the police in order to get rid of the Appellant. I do not consider that the Magistrate made any error in doing that. The only thing in which I find the Magistrate erred was regarding PW1's reliability. The doubts that I express earlier on the reliability of PW1 do not, in my opinion, give rise to any reasonable doubt in respect of the charge of assault, the evidence in support of which was very simple and straightforward. PW1's evidence being unreliable regarding the charge of theft can properly be considered separately from his evidence of the assault. Counsel has not been able to persuade me that the Magistrate erred in any manner in respect of his convicting the Appellant on the assault charge, nor can I find anything sufficient to justify disturbing that conviction.

21. In the result, I allow the appeal only in the part against conviction of theft which is quashed, but dismiss that part of the appeal against conviction of assault. The sentence based on the conviction of theft must be set aside.