HKSAR v. CHEUNG KIN CHEUNG

CACC 168 /2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 168 OF 2007 

(ON APPEAL FROM DCCC No. 1139 of 2006 ) 

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

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

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

REASONS FOR JUDGMENT

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

Hon Yeung JA (giving reasons for judgment of the Court):

Introduction

1.  On 9 April, we dismissed the application for leave to appeal against conviction. We indicated that we would hand down our reasons in due course and this we now do.

2.  Before District Court Judge Chua, Ma Chiu-kan (Ma) pleaded not guilty to the 1^st charge of burglary and the 3^rd charge of loitering with intent, and Cheung Kin-cheung (the applicant), pleaded not guilty to the 2^nd charge of handling stolen goods.

3.  The applicant wasconvicted as charged and sentenced to 18 months’ imprisonment. The applicant, represented by Mr Philip Wong and Mr Stephen Yam on the instruction of Messrs Chow and Ho, sought leave to appeal against conviction only.

The Prosecution Case

4.  The prosecution case against the applicant, largely undisputed, can be described succinctly as follows.

5.  On 24 October 2006, a burglary occurred at the office of Messrs Clifford Chance, solicitors (“Clifford Chance”) on 32/F, Jardine House, Central.

6.  Ma took five boxes of unused cartridges for printers worth over $4,000 from Clifford Chance’s office.

7.  A maid saw Ma at about 8 a.m. holding the boxes of cartridges in the general office of Clifford Chance on 32/F. The maid tried to stop Ma, but he managed to go downstairs with the cartridges. The maid then made a report to the police.

8.  On 25 October 2006 shortly before 8 a.m., Ma firstly went up to 24/F, Jardine House and was later found sitting on a pile of newspapers in the corridor outside Clifford Chance’s office on 29/F. When asked by management supervisors what he had been doing, Ma said he was delivering newspapers and was waiting for the office to open.

9.  A few minutes later, Ma left Jardine House and boarded a private car KJ 8689, which was parked on the opposite side of Jardine House outside the Post Office.

10.  The applicant was the registered owner of KJ 8689 and he was also the driver at the time.

11.  At around 3-4 p.m. on 24 October 2006, the applicant sold five boxes of cartridges to Data Way Appliances (HK) Company (“Data Way”) for $3,350. There was no dispute that the five boxes of cartridge, sold by the applicant to Data Way, were stolen from Clifford Chance.

12.  The applicant was arrested on 27 October 2006 and then interviewed twice under caution.

13.  What the applicant said under caution was largely repeated when he gave evidence in his defence.

The Defence Case

14.  The applicant was one of the partners of I-Pro Computer Supplies Company that bought cartridges, including unused ones, for recycling.

15.  The applicant said sometimes when an office changed their printers, there would be unused cartridges that needed to be got rid of and he had no reason to suspect the source of the five boxes of new cartridges obtained from Ma on 24 October 2006, particularly when they were not new models.

16.  The applicant said Ma usually asked him to meet at 7.15 to 7.30 a.m., but he was often late. He said he only arrived at the Jardine House at 8.45 a.m. on 24 October 2006 and Ma was then already waiting for him with the five boxes of new cartridges. After parking his car in a car park in Causeway Bay, the applicant examined the five boxes of new cartridges and agreed to pay Ma $1,900 for those cartridges.

17.  At the 1^st interview, the applicant said he paid the $1,900 to Ma in cash, but in evidence, he said it was a slip of the tongue. The applicant said he paid cash to Ma on most occasions, but this time, the $1,900 was to be deducted from the loan he gave to Ma on an earlier occasion to buy a mobile phone. The applicant said after the deal was concluded, they went for tea before they parted company.

18.  At the 1^st interview, the applicant said after obtaining the boxes of new cartridges, he went with Ma to play video games whereas in his evidence, he said he alone went to sell the cartridges to Data Way.

19.  The applicant also said he made a mistake when he told the officer at the 1^st interview that he was only paid $2,400 by Data Way and not $3,350. He said he only realized the mistake at the 2^nd interview.

20.  At the 1^st interview, the 2^nd applicant denied there was a receipt for the payment from Data Way, but at the 2^nd interview when he was shown the receipt, he accepted having issued a receipt and said he made a mistake because he was not given a copy of the receipt.

21.  At the interview, the applicant said Ma was the only person who would give him new cartridges whereas in evidence, he said Ah Cheung’s team also did that. The applicant said he met Ma three to four times a week to collect cartridges from him, usually at 6 p.m. or between 8 and 9 a.m.

22.  The applicant also said that he arranged to meet Ma on 25 October 2006 at 7.45 to 8 a.m. because he wanted to collect further cartridges that Ma had collected on 24 October 2006. When Ma arrived empty-handed, he asked him why and Ma simply said he had not been able to collect any.

23.  The applicant admitted that he did not enter the sale of cartridges to Data Way in his company’s record books and indeed pocketed the profit himself without disclosing it to his partners. He said he did not know how to make an entry and that as his company only dealt with used cartridges, his partners had agreed that he could pocket the profit from the sale of new cartridges.

The Judge’s Findings

24.  The judge emphasized the applicant’s admission that he was in fact suspicious of how Ma was able to get hold of the boxes of new cartridges, and that the applicant was not forthright during the interviews by the police.

25.  The judge, after pointing out that the applicant’s lies and the low price he paid Ma did not necessarily indicate that he had the requisite knowledge or belief, took the view that the applicant must know offices in Central were unlikely to be open before 9 a.m., and that when he examined the five unopened boxes later, he must realize that they had been stolen by Ma.

26.  The judge concluded that the applicant must have known or believed that Ma had stolen the five boxes of new cartridges.

27.  The judge therefore convicted the applicant of the handling charge.

Grounds of Appeal

28.  Mr Philip Wong took exception with the judge’s finding that the applicant must know that “offices in Central were unlikely to be opened before 9 a.m.”

29.  Mr Wong argued that implicit in the judge’s findings, she must have concluded that offices in Central are unlikely to be opened before 9 a.m. and that the applicant must have known about it and that before offices open, there would be no one present to allow the collection of cartridges for recycling.

30.  Mr Wong submitted that there was no factual basis to support the judge’s findings and relying on Chou Shih Bin v HKSAR [2005] HKLRD 838, he invited this court to determine the relevant issues afresh.

31.  Mr Wong argued that it was not open to the court to take judicial notice of when offices open in the morning as such a fact was neither notorious, beyond serious dispute, nor of common knowledge.

32.  Mr Wong further argued that the judge was wrong to have found that the applicant had lied when he told the police during his interview that Ma was the only person who supplied him with new cartridges.

33.  Mr Wong submitted that the applicant had explained that Ma was the only person who fixed to meet him in Central to sell him new cartridges and had not in fact excluded possible supplies of new cartridges by Ah Cheung’s team.

Discussion

34.  There could be no doubt that Ma had stolen the five boxes of cartridges from the office of Clifford Chance and the only issue, on the handling charge against the applicant, was whether he had the requisite knowledge or belief.

35.  The undisputed evidence suggested the 2^nd applicant arranged to meet Ma in the early morning outside Jardine House on 24 October 2006. Ma then emerged with five boxes of unused cartridges, which the applicant managed to resell at a very high profit.

36.  The applicant himself admitted that he was suspicious of how Ma was able to get hold of the boxes of new cartridges.

37.  The court could not ignore the fact that the applicant was able to sell the five boxes of cartridge for $3,350 in the same afternoon after he allegedly agreed to pay Ma $1,900, and when their market price was $4,000.

38.  The court also could not ignore the fact that the 2^nd applicant hid the transaction in question from his partners and from his company’s books.

39.  In emphasizing the applicant’s explanation in his interviews that Ma was the only person he met in Central to sell him new cartridges and therefore such explanation did not or might not contradict his testimony that Ah Cheung’s team also supplied him with new cartridges, Mr Wong appeared to be completely oblivious of other inconsistencies between the applicant’s testimony and his admissions to the police.

40.  As the judge had rightly pointed out, the applicant gave inconsistent answers on the issues of whether Data Way paid him $2,400 or $3,350, whether he paid the $1,900 to Ma in cash, whether he went to play video games with Ma or whether he went to sell the cartridges to Data Way alone, and whether he had issued a receipt to Data Way.

41.  When the judge said: “He had to know the offices in Central are unlikely to be open before 9 a.m.”, the judge was just making a general comment about the usual office hours. The judge did not rely solely on that point to infer guilty knowledge against the applicant.

42.  The judge was certainly right to comment that it was suspicious for Ma to arrange to meet the applicant at that early hour (before 8 a.m.) outside the General Post Office. She was certainly entitled to conclude that when the applicant examined the five unopened boxes of cartridges, he must realize that they had been stolen.

43.  We have considered Mr Wong’s submission carefully. We do not agree with his submission.

44.  On the entirety of the evidence, we were firmly of the view that when the applicant acquired the five boxes of unused cartridges from Ma and then sold them to Data Way, he knew or believed that they were stolen goods.

45.  The judge was right to find against the applicant and to convict him of the handling charge.

Conclusion

46.  We did not find the conviction against the applicant unsafe or unsatisfactory. We therefore dismissed his application for leave to appeal against conviction.