HKSAR v. YUEN KWAI YAM

CACC 370/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 370 OF 1999

(ON APPEAL FROM DCCC 391 OF 1999)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 7th July 1999, the applicant was convicted by H.H. Judge Toh in the District Court of one count of theft. The allegation was that the applicant between 5th and 12th March 1999 in Hong Kong stole 1,460 cartons of polyester textured yarns, the property of CHENG Chiu-hoi.

2. The applicant was sentenced to 3 years imprisonment. He now applies for leave to appeal against conviction.

3. Mr. Cheng was the owner of the yarns in question, the value of which amounted to $340,000. These were contained in two containers with reference numbers CNCU6961379 and GATU8114354. Mr. Cheng wanted to ship these goods to the Mainland and asked a Mr. Lau to obtain the necessary import licence to the Mainland.

4. The applicant offered to do this for Mr. Cheng and to do all the documentation involved in the shipment. Therefore Mr. Lau handed the bills of lading for the goods to the applicant and Mr. Cheng paid a deposit to the container company for the release of the bills of lading. Having obtained the bills of lading, the applicant told Mr. Lau that on 6th March 1999, the goods would be stored at an open space near a restaurant in Shawan, Shenzhen. When Mr. Lau went there on 6th March 1999, he found that the goods were not there and there was no such restaurant as the applicant had told him. The applicant had by then disappeared.

5. In the meantime, on 5th March 1999, the applicant gave the two bills of lading to a Mr. Au Yeung of a transportation company for transporting the containers to Shenzhen. On 7th March 1999, on the applicant's instructions, the goods were taking out from the warehouse of Mr. Au Yeung to a parking lot in Sheung Shui. The applicant then got in touch with Mr. Wong and Mr. Cheung. After they viewed the goods, they agreed to buy the goods for $150,000. The two containers were then transported to Mr. Cheung's warehouse in Tsuen Wan and part of the goods was stored in Mr. Wong's place. Meanwhile, Mr. Wong paid the applicant $50,000 first. According to Mr. Wong, the payment was made in the presence of Mr. Li, but according to Mr. Au Yeung, Mr. Li was then at the time with him and not with Mr. Wong.

6. The next day, the applicant went to see Mr. Wong for the balance of the purchase price but he could not produce any invoice for the goods. The applicant then assured Mr. Wong that he would have the bills of lading relating to the goods at a later date and on that basis, the applicant obtained the balance of $100,000. A week later, the applicant phoned Mr. Wong and told him to lie to anyone making enquiry about the goods and Mr. Wong should tell them the goods were merely stored on his premises.

7. The applicant was arrested on 26th March 1999 when he crossed into the Mainland.

8. The applicant's evidence at the trial was that the goods were merely stored in Mr. Cheung's and Mr. Wong's places. He denied he ever received the sum of $150,000.

9. The Judge did not consider the evidence of the applicant credible and rejected this evidence. She accepted that Mr. Wong had paid $50,000 to the applicant. She was aware that there was no evidence from the bank as to the withdrawal of the money by Mr. Wong to pay the applicant and that Mr. Wong's evidence that he paid the applicant in the presence of Mr. Li could be incorrect. The Judge however, considered that even if Mr. Wong was incorrect or lying about Mr. Li's presence, this did not affect her conclusion that Mr. Wong was a truthful witness. The Judge therefore found the charge proved.

10. The grounds of appeal complain that the Judge should not believe the witnesses when their evidence was inconsistent with each other and when they made mistakes in their evidence. The applicant's other complaint is that there was no evidence other than that of Mr. Wong, that he had received the sum of money from him. He says Mr. Wong was a liar.

11. The applicant before us this morning also says that the Judge sided with the prosecution and did not consider his evidence and that the Judge had convicted him because he was poor.

12. The matters raised by the applicant are all facts which had been considered by the Judge. The evidence of the prosecution against him is overwhelming. On the evidence, the applicant had appropriated that the two containers of polyester yarns by taking away the documents of the title to the goods as well as the goods themselves and then disappeared. He sold them to Mr. Wong and Mr. Cheung as his own for half their value when his mandate from the owner was merely to ship the goods into the Mainland and to obtain the necessary import licence in respect of them. Once this evidence is accepted as the Judge did, the inevitable conclusion could not be anything other than the charge of theft is proved beyond reasonable doubt. The appeal is therefore entirely without merit and the application is dismissed. We order 3 months of the time he has spent in custody shall not be counted as part of his sentence.