HKSAR v. WONG KA PO

CACC 109/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 109 OF 2002

(ON APPEAL FROM DCCC 998 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 8 February 2002, the Applicant (D2) was convicted with Lo Wai-yin (D1) of the attempted theft of a goods vehicle and trailer, following a trial in the District Court before Deputy Judge Mierczak. Cheng Wai-man (D3), who was the wife of the Applicant and the half sister of D1, was acquitted on this charge.

2. The Applicant was sentenced to two and a half years' imprisonment. He now seeks leave to appeal against conviction.

Prosecution's case

3. The goods vehicle and trailer, valued together at $167,000, were parked at a quiet location in Tuen Mun at about 6.30 p.m. on 30 August 2001. They were fitted with an anti-theft device consisting of a metal plate which covered the electric wires connecting the vehicle and the trailer. Two of these wires had been disconnected by the vehicle's driver, Li Shun-nin, who had secured the metal plate with a steel lock to prevent an unauthorised attempt to reconnect the wires. The vehicle's doors were locked with keys which the driver kept with him but he left the ignition key, apparently as usual, in the ashtray.

4. At 2.15 a.m. on 31 August 2001, the vehicle came to the notice of the police because its engine was running. Police also saw that the doors were unlocked and the key was in the ignition. Very sensibly, the police went to various places to observe. After about 10 minutes, a red car, driven by D3, stopped alongside the vehicle. This car was subsequently found to be registered in D1's name. The Applicant and D1 were passengers in the car. The car drove away after about 2 minutes.

5. Fifteen minutes later, at about 2.40 a.m., the same car returned and stopped near the vehicle. D1 and the Applicant, who were both wearing white gloves, got out. D1 was carrying an electric drill and a pair of pliers. The Applicant got into the cab of the vehicle and switched off the engine. He then returned to the car and was driven away by D3. Meanwhile, D1 remained at the scene and used the electric drill to drill into the lock on the anti-theft device.

6. D1 was arrested at 2.58 a.m. after police had driven an unmarked car alongside the vehicle. He was caught after he had run away and had put up a violent struggle. The electric drill D1 had been using, a pair of gloves and a screwdriver were found near the vehicle.

7. Other police officers stopped the car in which the Applicant was a passenger. Inside the car were found a wallet containing D1's identity card, two pairs of gloves, an empty drill box, a box of tools and a brand new trailer plate bearing a different number to the number on the trailer the subject of this alleged attempted theft. The number on this new plate was shown to have been registered to one Lee Chi-wai.

8. Examination of the goods vehicle revealed fresh scratch marks on the keyhole of the nearside door and there were signs of drilling on the steel lock of the anti-theft device.

9. The Applicant said nothing to police following his arrest.

Defence case

10. Neither the Applicant nor D3 elected to give evidence. D1, by way of explanation for his actions, testified at trial along the lines that a loan shark had instructed him, without explaining why, to do some damage to the vehicle. He had then walked away. D1 said that he had been dropped at the scene after he had lied to the Applicant and D3 about needing to fix the vehicle. He was unaware he had left his wallet in the car or that there was a brand new registration plate under the boot carpet in the car which was registered to him.

Trial judge's assessment

11. The evidence given by D1 was rejected by the judge who said that he did not believe that D1 was at the scene merely to damage the vehicle. In assessing D1's evidence, the judge commented to the effect that it stretched the bounds of credulity.

12. The judge's assessment of the prosecution's case was in these terms:

"It is obvious to me that the defendant had first done 'a recce' of the area. They had returned a little later and thereupon D1 and D2 had alighted from this car which had stopped next to the subject vehicle. It was very late at night, or to be more precise early in the morning, the area was remote and I accept the prosecution witnesses' evidence and, as well, the defendant lives some distance away from the scene. D1 and D2, as I said, both wore gloves and D1 was armed with these tools, including the drill and the pliers and, as I say, D2 had then entered the cab of the vehicle and did what I earlier related." (Appeal bundle p. 21)

13. The judge went on to deal with aspects of the assault on police by D1 which related to a second charge with which we are not concerned. The judge then returned to the evidence on charge 1 when saying that he was in no doubt about the guilt of both D1 and the Applicant. He described the events as being "more than merely preparatory to the commission of the offence". He went on to say:

"The preparatory acts, that is the recce that I have referred to, etc. had clearly come to an end and D1 and D2 had embarked on the theft proper by their actions." (Appeal bundle p. 22)

Grounds of appeal

14. Three grounds of appeal have been advanced by Mr John Griffiths, SC, on the Applicant's behalf, to suggest that the conviction was unsafe or unsatisfactory.

15. In the first of these, he submitted that the judge was wrong to have concluded that the Applicant's acts were more than merely preparatory to the commission of this offence. It was contended that the Applicant's acts could have amounted to "setting the scene" for D1 to commit the offence of theft without the Applicant himself having attempted to do so.

16. The relevant provision in the Crimes Ordinance, Cap. 200, concerning 'attempt' is as follows:

"159G. Attempting to commit an offence

(1) A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence."

17. Mr Griffiths relied on R v Gullefer [1990] 3 All ER 883 to support the proposition that what was done by the Applicant when he switched off the ignition in the vehicle was insufficiently proximate to amount to an attempt to steal the vehicle and trailer. In Gullefer, the appellant, who was charged with the attempted theft of the stake-money he had placed on a dog that was losing in a race, had jumped onto a dog track and waved his arms in an attempt to distract the greyhounds in the course of the race. The appellant later admitted that the reasons for his behaviour were that a year earlier he had lost a large bet when a member of staff at the track had, by leaning over the railings, distracted the dog on which he had placed his bet. He hoped that the stewards, in the race he had tried to disrupt, would declare 'no race' and that he would be able to recover his stake-money. In the course of giving judgment, Lord Lane CJ said that there was insufficient evidence for it to be said that the appellant's acts had gone beyond mere preparation.

18. In the present case, the situation was entirely different to Gullefer's case (and to the situation in R v Geddes TLR 16 July 1996, 160 JP 697, on which reliance was also placed). The acts with which the Applicant was directly associated in a joint venture with D1 could only, realistically, have been related to stealing the vehicle and trailer once other possibilities had been excluded with the rejection of D1's testimony. The vehicle, which had been locked, with its engine switched off had, by 2.15 a.m., been broken into and the engine re-started, all plainly without the owner's consent. At this stage, already, the act of appropriation had been embarked upon. Thereafter, having first stopped near the vehicle, D1 and the Applicant returned to the scene wearing gloves and equipped to continue the operation. The Applicant himself switched off the engine as part of that operation. The crime had plainly been embarked upon once the 'acts in contemplation', such as the reconnaissance of the scene (described by the judge as the 'recce') and the obtaining of a new number plate for the trailer, had been accomplished.

19. This ground fails.

20. In the second ground, it was contended that the judge had failed to consider that by leaving the scene the Applicant "might have effectively withdrawn from the commission of the offence".

21. There was, of course, no evidence of withdrawal from the joint enterprise, as envisaged in R v Whitehouse [1941] Dominion Law Reports 683 (Court of Appeal of British Columbia) and as approved in R v Becerra and Anor [1976] 62 Cr App R 212 (see also: Archbold 2002, paras. 18-26 to 18-29). On the contrary, D1's account, giving the Applicant an innocent reason for his presence at the scene, was rejected by the judge. The Applicant himself never raised such a defence and his presence in D1's car, carrying the new trailer plate in the boot provided strong evidence that withdrawal from the scheme had no part to play in these events. There was no need for the judge, in such circumstances, with evidence that the Applicant had actually embarked on the crime by turning off the ignition, specifically to have considered withdrawal. If the judge had raised the issue, he could only have done so in order to rule it out as an irrelevance.

22. The second ground fails.

23. The last ground of appeal complained that D1's actions at the scene were not consistent with an attempt to commit theft.

24. We have already set out the general circumstances in which D1's behaviour took place including the hour of night, the remote location, the gloves, the tools, the drilling into the lock on the anti-theft device, the new number plate for a trailer in his car and his attempt to get away when challenged by the police.

25. Mr Griffiths in his written submission, which he did not elaborate upon in the course of argument in court, contended that D1 was "walking into the middle of the road, away from the vehicle", having left on the ground the electric drill, a pair of pliers and a screwdriver when police arrived on the scene and that this was more consistent with D1 having finished the job of causing damage to the steel lock to the anti-theft device than attempting to steal the vehicle and trailer.

26. It may be that this ground is based upon a misconception of the effect of the evidence immediately before the Applicant's arrest. PW2 was one of the first officers to attend the scene and he said:

"My vehicle arrived there and upon arriving there the defendant (D1) walked out from that space at that moment.............. My vehicle arrived there and only at that moment he (D1) appeared walking out." (Appeal bundle pp. 34-35)

27. There then followed a short chase and a struggle before D1 was arrested. The only evidence that the offence was limited to 'criminal damage' came from D1 and this was rejected. This left, as the judge found, no other inference than that D1, with the assistance of the Applicant, had together attempted to steal the vehicle and trailer.

28. This ground also fails.

Conclusion

29. We have found no grounds for saying that the Applicant's conviction was unsafe or unsatisfactory.

30. Accordingly, this application is dismissed.