R. v. LAW HOI FU

IN THE COURT OF APPEAL

1996, No.154
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant faced three charges: one of going equipped for stealing and two of handling stolen goods. The first read that he on 17th February 1995 in a private motor vehicle registered number GH 523, outside Block 14, Lower Ngau Tau Kok Estate, Kowloon, not being at his place of abode, had with him articles for use in the course of or in connection with theft, namely one radio transceiver, one set of new number plates FE 4282, one hammer, one saw, one spanner, eight screw drivers, three pliers, one green plastic stripe, three pairs of cotton gloves, one electric drill, one wire cutter, one roll of green adhesive tape. The first of the handling of stolen goods charge read that he and one Lee Ping-yiu, on 18th January 1995, in Hong Kong, dishonestly received certain stolen goods, namely four private motor vehicles, BMW sedans registered numbers BW 192, the property of Choi Ying-yiu, ED 908 the property of Wong Ting-fong, FK 5181, the property of Ng Ping-kin and FB 9291, the property of Wai Hon-keung, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods. I shall not particularize the third charge as he pleaded not guilty to all charges and was found guilty only of the first and second charges. He was tried before Judge Pang who sentenced him to six months on the first charge and to four and a half years consecutive on the second charge. He now seeks leave to appeal against both conviction and sentence. However today he has offered no argumernt in relation to sentence and that application is dismissed.

2. The four cars particularized in charge 2 were all BMWs. On the evening of 18th January PC16973, who was PW10 at trial, was on observation duty on the 9th floor of the Po Shing Industrial Building which is opposite to the Dorway Godown. He was carrying out observations at 7:12 p.m. and gave evidence to the following effect in relation to those observations. This is of some importance and I will therefore set it out in full:

"Q. Go on, please, what happened then?

A. Then at about 12 minutes past 7 I heard noises of some rollers or pulleys being pulled at, coming from Dorway Godown.

Q. Yes?

A. Then I saw a person walking out from beyond the Dorway Godown.

Q. Where did he -- where did that person go?

A. He walked out and then he stood next to a pile of bricks near Dorway Godown.

Q. Yes?

A. I saw this person, and then at 15 minutes past 7 I saw a total of four persons walked out to the entrance of Dorway Godown situated at Ko Fai Road.

Q. Now at that stage what happened to the first person you saw?

A. The first one I saw together with the other three, together walk out to the entrance at Ko Fai Road.

Q. Right. So they walked out to the -- Ko Fai Road, and then what happened?

A. They walked up to next to the side of a white private car which was outside the Po Shing Industrial Building, and they stood there.

Q. What did they do?

A. They stayed there, standing there for a short while. They dispersed, they left.

Q. Go on. This is not what they do.

A. One person, wearing something green in colour, walked along Ko Fai Road and walked in the direction of the fire station.

Q. Yes. What about the other ones?

A. A person wearing something dark in colour and a person wearing a dark-coloured jacket together walked back into behind the Dorway Godown.

Court:Sorry, how many were there?

A. Two of them.

Q. Right. So what happened to the last one?

A. The last one, the one wearing a red jacket or coat ............ and went into the driver's seat of the white private car.

Q. Now, it's about that point of time that you received some instructions from Sergeant 17920, is that right?

A. Yes.

Q. What did you do as a result?

A. I immediately went down to the ground floor of Po Shing Industrial Building.

Q. Yes?

A. And I find a position and I sit down there. I mean, I sit down at some low-rising stone structure.

Q. Now what do you do?

A. After I had sit down there, I started to pick an eye to make observation on the white private car.

Q. Now, officer, in that vicinity ...

Court:How far away were you from the car?

A. About 10 metres.

Q. Now, was that the same white private car you saw from your observation post or a different white private car?

A. I believe it was the same vehicle.

Q. How many cars were there in the vicinity, do you still remember?

A. I cannot remember.

Q. Now, go on. You were looking at these private cars. What happened next?

A. And I also make observation on the person who was in the car, wearing something red.

Q. Yes. Did you notice what sort of white -- what sort of private car was it?

A. Toyota.

Q. Yes, and were you able to see its registration number?

A. Yes, GG 2716.

Q. Yes, what happened next?

A. [Answer not translated]

Q. What did you do next?

A. I pay attention. I sat there and kept on making observation.

Q. What did you see?

A. I saw the male person in the car was in the driver's seat, did not move.

Q. Now, from your position, were you facing the front of the private car or were you facing the back of it -- of the private car?

A. The front of the private car.

Q. Were you able to see this driver?

A. Yes.

Q. Right. How was the lighting condition like where this driver was?

A. Very sufficient lighting.

Q. Where from?

A. Street light and the light of the warehouse which was next to me.

Q. Have you seen this person before?

A. Have seen his photograph."

He then goes on to deal with other matters which are not relevant to the present appeal but continues at p.62 of the record:

"A. From the time I made observation till 7.45 the same evening, I saw a white dual-purpose van travel in Ko Fai Road, turn right into Dorway Godown -- Dorway Godown.

Q. Right. Now, up to 1945 hours, right, how long have you .......... What time did you arrive at the ground floor and sat on that device of yours to observe the white vehicle and the person inside?

A. It was about 7.18.

Court: When you saw a white dual-purpose van turning into the godown?

A. Yes.

Court: From there you made observation until about 7.45, is that right?

A. Yes.

Court: But how many persons, apart from the person in red, were inside the Toyota private car?

A. One person.

The witness then went on being asked:

"Q. Now, were you able to see the registration number of that van you just mentioned"

A. Yes, I could see.

Q. What's the number?

A. GG 2812.

Q. Now, what happened after it went in ?

A. About four minutes later, at about 7.49, I saw the van coming out.

Q. What happened to that driver on the Toyota?

A.. All along he did not move, he was staying in the driver's seat.

Q. Now what next happened?

A. Then I saw the driver of the white van park the van to the left-hand side of the entrance to Dorway Godown, and then he alighted from the van and he walked into Dorway Godown.

Q. Yes, go on from there.

A. And then at 7.50 I saw a black BMW sedan car, car plate number ED 908. That car was travelling along Ko Fai Road, turn right into the entrance of Dorway Godown and it stopped.

Q. Yes?

A. Then I saw the male person who was wearing a red jacket and who was in the driver's seat of the white private car alighted from the private car.

Q. And what did he do ?

A. After he alighted, he walked up to beside the driver's seat of ED 908 which was a BMW. Then he stood there.

Q. When he did that, was he walking away from you or towards you?

A. Further away from me.

Q. Right. Now, what happened after that?

A. After he had walked up to besides the driver's seat of ED 908, he stood there. I saw him stoop his back and according to what I saw, it seemed that they were talking.

Q. Yes. Go on, please.

A. And the talking lasted for about 10-odd seconds.

Q. Mm'm.

A. I saw the man in red pointed with his right hand in the direction of the seafront next to Dorway Godown.

Q. And what happened to that BMW -- well, so what happened?

A. After he had pointing that direction out, he walked back in the direction of the white private car, while ED 908 started to drive into the Dorway Godown.

Q. As he was walking back to the private car, was he walking towards you or away from you?

A. When he walked back to the private car he was getting nearer and nearer to me.

Q. Now, he got back to the car, and what happened?

A. And he went into the driver's seat.

Q. Yes?

A. Then at about 7.53 I saw a male person wearing a green jacket, walk out from Dorway Godown.

Q. Yes?

A. This person walked along Ko Fai Road and not in the direction of the fire station.

Q. Yes, go on please.

A. Then at about 4 minutes past 8, I saw a grey colour BMW, car plate number BW 192. At that time this car was travelling also in Ko Fai Road, also turned right into the entrance of Dorway Godown and also stopped there.

Q. Yes?

A. And I saw the male person who was driving this BW 192 was also wearing something green and who was the same person I earlier mentioned who walked out of the godown and in the direction of the fire station.

Q. Yes?

A. After this BW 192 had stopped at the entrance of the Dorway Godown, I again saw the male person in red and he was inside the white private car, again alighted from it and walked towards this BW 192.

Q. Yes.

A. Again the male person in red talked with the driver of BW 192 for a short while and then he pointed with his right hand in the direction of the seafront near Dorway Godown.

Q. Yes?

A. Then the male person wearing a red jacket went back into the white private car and the BMW switched off its lights and went into the Dorway Godown.

Q. Yes, what next happened?

A. It was at 8.29. I saw three male persons walk out from -- three male persons walk out from the area of the Dorway Godown. They were stood outside the entrance of Dorway Godown. They were standing on the road near the pavement.

Q. Right. Go on.

A. Then I saw the white private car GG 2716 started to drive to where those three persons were.

Q. Yes.

Court: Who drove?

A. The one wearing a red -- a white jacket, but for sportswear.

Q. And what did the three persons at this -- outside the godown do?

A. They all boarded the car.

Q. Right. Go on.

A. Then the car drove along Ko Fai Road and went away.

The last question to which reference need be made is:

"Q. Right. Now, during the whole course of the observation, approximately how long did you have the driver of the white vehicle in your observation? Approximately.

A. About 80 minutes."

It can be seen from that by the time the three males were being driven away all of the material transactions as far as this application is concerned had taken place. This witness identified the applicant as the driver of GG 2716.

3. PW11 then gave evidence as to what hapapened. I take this evidence from the Reasons for Verdict of the trial judge. He said:

"In the evening of the 18th, he and a party of police officers raided the Dorway Godown shortly after 8.32. The police proceeded to the seafront of the godown and this witness saw a 40-foot container bearing number 7615449. When he opened the container doors, he saw four BMW sedans inside. Two vehicles were placed inside the container at ground level with the other two suspended on top and secured by ropes and pulleys. The registration numbers of the four cars were ED 908, BW 192, FB 9291 and FK 5181, all of which were reported stolen earlier on the same day."

4. The trial judge stated finally:

"I find it to be an inescapable conclusion, from the evidence, that the cars were being loaded into the container for illegal storage and eventual shipment out of Hong Kong, and that D1 had taken an active part in this process."

5. I turn now to the first charge. The evidence in that charge, in which the applicant is referred to as D1, was set out by the trial judge in his Reasons as follows:

"According to PW10, at around 10.25 on 16 February, he proceeded to the Mei Lim Candy Wholesale Store in the Ngau Tau Kok area, together with a number of police officers. On arrival, he saw five men seated in front of the store. He approached the 1st defendant and asked to search him. Two bundles of car keys were found on the 1st defendant. The keys were produced as exhibits P5 and P6. At this point of time, he received instructions from PW30, Chief Inspector Crowther, to arrest the 1st defendant who was then taken to the Ngau Tau Kok Police Station.

This witness went on to tell the court that Chief Inspector Grant and a party of officers took D1 to the carparking area between Block 10 and Block 11 of the Lower Ngau Tau Kok Estate. PW9 was one of the officers who was present at the car park, guarding a black Mitsubishi sedan, FV450, when PW1 arrived with other officers. His evidence was that, at the car park, he used a bundle of keys - exhibit P6 - which was seized on the 1st defendant earlier, by PW10, to open the door of the black Mitsubishi sedan, registration number FV 450. He found a Pioneer car amplifier - exhibit P3 - and an ignition block - exhibit P4 - inside the car and he seized them as exhibits.

I would like to note here that these two items are not items particularised in the present charge. In approaching the evidence of this charge, I would therefore exclude from my mind the incident relating to the seizure of these two items, in order to avoid any possible prejudicial on the defendant.

PW9 then went on to tell the court that, from the car park at Block 11, D1 then led the party of police officers to the car park outside Block 14 of the estate. PW10 used exhibit P5 to open a Ford sedan, GH 523. A search was conducted and the items specified in the charge were found in the car and they were later seized by PW29, DPC 19079, the exhibits officer who produced exhibits P29 to P47.

Exhibit P29 is a pair of new car number plates and when examined by officers from the Identification Bureau, D1's fingerprint was found on one of the plates. Exhibit P47 is a radio transceiver and, when it was examined by PW32, a Mr. Woo from the Police Telecommunication Branch, whose evidence I accept, the transceiver was tuned into ther police frequencies and it was in good working order at the time of the examination.

The evidence of PW22, Chief Inspector Grant, was this: he was with the 1st defendant when the items referred to above were seized from the car in the presence of D1. He asked D1 in Punti what the items were, and the defendant was heard to have said that the car belonged to one Golden Duck, and that the tools belonged to the defendant himself.

I accept and find that the defendant had the keys to this vehicle on him when he was searched by PW10, and that the defendant did admit to the chief inspector that the items seized belonged to him. I further find that, at the material time, he had those items with him in law. From the nature of the items seized, I find that they are capable and suitable for use to steal motor cars, and I also find that the defendant had intended to use those articles in the future for theft of motor cars.

The trial judge was also satisfied to record a finding of guilty against the applicant on that charge.

6. The applicant is represented today by Mr. Grounds who has argued a number of grounds of appeal. The original Ground 1 was not argued and we turn then to Ground 1A. The first of the matters particularized under Ground 1A was also, althought argued, not, in the outcome, pursued as the argument was shown to have relied upon a corruption in the record which has now been corrected.

7. We turn then to Ground 1A.(2). This read as follows:

"The learned Trial Judge wrongly failed to assess or evaluate the following salient matters which the Defence were advancing in cross-examination as tending to show that PW10 was not a reliable witness:

(a) that PW10 never stated in a witness statement, and in particular his witness statement of 17.2.95, that the man he arrested on the night of 16/17.2.95 was the same man he had observed driving the Toyota car on the night of 18.1.95;".

We are satisfied that this cannot properly be regarded as a salient matter and that the trial judge was not required to make any reference thereto. Indeed we find it understandable that when making a statement following the arrest of a person on a particular charge a police officer would not insert therein information which suggested that he might be guilty of another charge.

8. The second of the matters to which reference is made is that PW10 never made any reference to the facial descriptions of anyone he had observed on 18th January in his witness statement which he made on 19th January.

9. The witness in cross-examination agreed that he did not do so and nothing more was then made of this matter. This again, we are satisfied, was not a salient point to which the judge was required to make reference in his findings.

10. We turn then to Ground 2 in that it is submitted:

"The learned Judge erred in law and wrongly failed to consider whether those items particularised in the 1st charge were with the Appellant at his place of abode, so that the Appellant was not guilty of the offence charged."

The ground goes on to refer to the following statement from Smith and Hogan Criminal Law :

"place of abode connotes a place, that is a site, where (the Applicant) lives .... but the place of abode is apt to cover the whole of the premises where (the Applicant) lives so that (the Applicant) does not commit the offence by having the articles in his garage or even in his car while that is on his premises."

It is submitted by analogy the car parked at a block of flats remains within the definition of a place of abode and that there was no evidence that the applicant's place of abode was not Block 14 of the Lower Ngau Tau Kok Estate and that the Crown had therefore failed to prove the charge laid against him. We cannot agree with this contention. A car parked in a person's garage on his land is clearly at his place of abode. This car was not so parked. It was, to use the words which the judge used in his findings "in the carpark outside Block 14 of Lower Ngau Tau Kok Estate", such a carpark is not, we are satisfied, in law a part of the abode of a person residing in the block and it matters not, therefore, that the Crown did not prove that the block was not the residence of the applicant.

11. In all of the circumstances, therefore, this ground is also without merit and the application must be refused.