R. v. LIN Kae-tzong

IN THE COURT OF APPEAL

1994, No. 11
(Criminal)

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J U D G M E N T

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

1. The applicant here faced two charges in the District Court. The first was handling stolen goods, namely a Mercedes Benz motor car (the car) DW 765, on 30th April 1992 at Sham Tseng, Castle Peak. The second charge was one of resisting arrest by a police officer acting in the execution of his duty.

2. There was undisputed evidence that the car was stolen on 29th April 1992 from a carpark at the Park Lane Radisson Hotel in Causeway Bay at 10:20 p.m. The doors were broken open and the ignition switch was damaged.

3. Further evidence given by Mr. Hung Ming-ngam, a technician at the Union Carbide Company at Sham Tseng. At about 00:30 a.m. of 30th April 1992, very shortly after the motor car was stolen, he saw it being parked on the waterfront near to his company. Mr. Hung said that there were four men in the vicinity of the car and that they placed material through the windows of the car, apparently preparatory to lifting it up on a crane lorry which was also parked in the vicinity.

4. Mr. Hung, who clearly was a public spirited citizen, decided that the actions of these men in connection with the car and the crane lorry was suspicious and he telephoned the police. As a result of that a police party arrived, led by a sergeant, and they gave evidence of what was then happening which was that the men were apparently about to lift the car by means of the crane. They said in particular that the applicant was standing by the front passenger seat door of the car and was assisting in placing material or ropes through the window. After they had been observing what was happening for some few moments the men became suspicious that they were under observation and shouted out that there were police in the vicinity. Three of them jumped into the sea but the applicant ran away up Sham Chi Street. There was no dispute he was there arrested after being apprehended by a police constable who he undoubtedly resisted. The Judge however found that he was not satisfied beyond reasonable doubt that the applicant must have known that this constable was in fact a police officer and he therefore dismissed that charge. He did however find that at the time the applicant was in possession of a portable telephone which he threw away.

5. There was a conflict in the evidence between that given by Mr. Hung and by the police officers and that found the first ground of appeal. The police officers said that they saw the men, including the applicant, actually preparing to lift the car by means of the crane. Mr. Hung said that he had seen the men doing that but by the time the police party arrived the car had in fact been hoisted into the air.

6. Mr. Mullick, who appears here for the applicant here, suggests that if the true facts were that the vehicle was already hoisted when the police party arrived, the evidence against the applicant was much weaker than contained in their version which was of him actually putting the material through the windows of the car in order to hoist it. If the vehicle was already hoisted when the police party arrived the only evidence against the applicant would be that he was in the vicinity of the car plus the evidence of his flight and the trial Judge had found that he was not satisfied that the applicant knew he was being pursued by police officers. He was in possession of a portable phone but so are many people, even on the water-front at 00:30 a.m.

7. The trial Judge considered that Mr. Hung while obviously an honest and good public spirited citizen may have been mistaken when he said that the vehicle was already hoisted when the police officers arrived.

8. While clearly this was an important disparity the judge was fully aware of it and of the implication that the police officers had given false evidence of the applicant actually taking part in the preparations made to hoist the car. There was some cross-examination on the basis that their statements on this point were strikingly similar. We are satisfied however that the judge was entitled to find, as he did, that Mr. Hung was mistaken in his evidence that the car was hoisted when the police arrived. He said that he accepted the evidence of the police officers and he was entitled to do so. This ground of appeal must therefore fail.

9. The other ground of appeal is that the applicant gave evidence which the trial Judge did not accept but in reaching that decision he did not direct himself clearly that the applicant's clear record should have been a matter the Judge should have considered in relation to whether he should accept the applicant's evidence and also as to whether the applicant was the sort of person who would commit this offence.

10. The applicant's evidence was that he had been in the vicinity where the car was found on 29th April, the previous day. He was there with his girl friend fishing with tackle he had purchased but apparently discarded after use. He took a taxi to go home at about 7:00 p.m. He dropped his girl friend off on the way but when he arrived he found that he had lost his wallet containing his money and identity card. He then phoned a friend, Kon Wai-kit, and explained his situation and Mr. Kon met him and lent him enough money to pay for the taxi. He then went with the friend and had a meal together. He borrowed another $500 from Mr. Kon after that he returned to the scene of his fishing expedition. He did not take a torch with him but considered that the lighting in the vicinity would be sufficient for him to look for his wallet. He was doing so at 12:30 in the morning when suddenly there was shouting and, as he had previously seen people in the vicinity who had spoken very rudely to him, he panicked and ran away.

11. This evidence was, to say the least, an extraordinary story but nevertheless, it was for the judge to consider and to see if it was worthy of belief. This he did and he certainly was aware, and said that he was aware, that the applicant had no previous convictions. He did not however specifically give himself a direction along the lines which had been laid down in the now well-known authorities of R. v. Berrada (1989) 91 Cr App R 131 and R. v. Vye [1993] 1 WLR 471.

12. These authorities were considered by this court recently in R. v. Cheng King Ho Crim. App. No. 255/93. That was a case involving the question, which so often arises, of whether a person was aware of the contents of a parcel found in his possession which contained dangerous drugs. There Macdougall V.P., giving the judgment of the court, said:

"Moreover, we wish to make it plain that it by no means follows that a failure by a judge in a jury trial to give a Berrada or Vye direction in a case where a defendant has properly presented himself as a man of good character will result in this court automatically quashing a conviction. In such a case this court will quash a conviction only if it comes to the conclusion that in all the circumstances it is unsafe or unsatisfactory.

We think that we should also indicate for future guidance that this court does not require a District Judge or a Magistrate to state in his or her Reasons for Verdict that he or she has given himself or herself a Berrada or Vye direction."

13. We would reiterate that opinion. Here however strong reliance is placed on an earlier decision in R. v. Chan Wu-nam, Crim. App. No. 274/92 where the judgment of this court given by Mortimer J.A. There the evidence was that goods had been stolen and the applicant was found in recent possession of some of those goods. They were garments and it was the Crown's case that he had purchased these garments at a very low price and the general circumstances were such that he must have known they were stolen. The defendant gave evidence that the garments had not been purchased at a low price and were being sold perfectly openly, indeed from the very boxes in which they had been stored by the owner. He was a dealer in clothing who was 37 years of age and had no previous convictions.

14. The court considered that it was on the facts of that case essential that the judge should very carefully evaluate the applicant's age and previous good character in deciding whether he knew the goods had been stolen that he had failed to do so. That made the conviction unsafe. Mortimer J.A. however, went on to say:

"We are not to be taken as saying that it is incumbent upon a Judge to give himself and to articulate what is called a Berrada direction in each case."

15. We consider that Chan Wu-nam is example of a case in which character and age of the defendant was such as to be a matter to be carefully analysed by the trial Judge or a Magistrate and possible failure to do so will cause anxiety as to the safety of a conviction. The facts of the case here were very different to those in Chan Wu-nam where the honesty and knowledge of the defendant was crucial. The same sort of situation would arise where a man of mature years with a clear record and good family background is charged with a sexual offence.

16. Here the defendant gave evidence of innocent presence at the scene of a crime. He was entitled to point to his clear record and the judge was aware of it. He was not however required to give that clear record the emphasis it called for in the other cases mentioned. We do not consider that this ground of appeal has been made out. We do not regard this conviction as unsafe or unsatisfactory and application for leave to appeal against conviction is therefore refused.

Sentence

17. The applicant was sentenced to two years and nine months for handling a very valuable stolen motor-car in circumstances where clearly it was intended to smuggle it out of Hong Kong.

18. While this type of offence is not as prevalent as it was at the time the offence was committed we consider the sentence passed was not excessive. The application for leave to appeal against sentence is therefore also refused.