HKSAR v. FONG CHONG PUN AND ANOTHER

CACC528/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 528 OF 1998

(ON APPEAL FROM DCCC 556 OF 1998)

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

Introduction

1. On 23rd September 1998, the Applicants (D2 and D3 respectively) were convicted, following a trial in the District Court before Judge Gill, of handling stolen goods. D2 was acquitted on charge 2 and convicted on charge 3. He received a sentence of three years' imprisonment. D3 was convicted of both these offences and a total of five years' imprisonment was imposed on him. They now each seek leave to appeal against conviction and D3 seeks leave to appeal against sentence also.

2. At the outset of the trial, D1 pleaded guilty to theft (charge 1) of computer components worth US$178,683, which were the property of Hong Kong Data Express Ltd.. The same goods were the subject of the handling offence in charge 2. Charge 3 related to fabrics, yarns, electronics and other equipment valued at approximately HK$2,200,000, the property of TVL Shipping (HK) Co. Ltd., which were stolen on or about 4th March 1998.

Prosecution's Case

3. A considerable portion of the prosecution's case was not contested. D1 was employed by Hong Kong Data Express as a driver. On 12th March 1998, he was instructed to deliver the computer components referred to in charges 1 and 2. They were loaded onto a goods lorry, HL334, but they never arrived at their intended destination. D1 made a false report to the police during the course of that day to the effect that he had been robbed. In reality, however, he had driven the lorry to a village called Tong Kung Ling near Sheung Shui. Police were there, keeping surveillance on a compound in that village where there are a number of godowns. The vehicle, HL334, was seen to go into the compound to a point close to "warehouse 5". The two occupants of the lorry got out. Any unloading that took place of the goods from the lorry was out of sight to the surveillance officers. Soon afterwards, the lorry drove away with the same two occupants on board and it was followed by some of the police officers from the surveillance team. It was noticed that one of the backdoors of the lorry was open and police could see that the lorry was empty inside.

4. At the compound, a number of police officers entered warehouse 5 and found D1's stolen consignment stored there. They also found the goods relating to charge 3 which had been stolen a week earlier.

5. It was the prosecution's case that D2 and D3 each had close links with warehouse 5, and that these links were sufficient to give rise to the inescapable inference that they were the receivers of stolen property, knowing or believing the goods to be stolen.

6. The proprietors of warehouse 5 were a married couple, named Chun Yum-biu ("Chun") and Kan Wai-yin ("Kan"), who lived in an adjacent property to the warehouse. Kan rented warehouse 5 to a man calling himself "Lau" in June 1996. Soon afterwards, Lau introduced Kan to another man he called "Mr. Chan" saying that if there were any matters concerning the tenancy, she should talk to Mr. Chan. Mr. Chan gave Kan a pager number and she gave him her bank particulars for payment of the rent. The rent was regularly paid, it seems, until the time of these events in March 1998. On some occasions, Kan saw the so-called "Mr. Chan" at the warehouse and on others she spoke to him, having paged him on the number he had given her. Kan's husband, Chun, also saw Mr. Chan from time to time, although far less often because he worked at a place which was away from home. On 12th March 1998, however, before the police raided warehouse 5, Chun happened to be at home and saw Mr. Chan at the warehouse.

7. On the following day, D3 was arrested. In his possession were found twenty-four keys, three of which fitted the warehouse, and another key which fitted his car. Inside his car was found a packet which bore his thumbprint. Inside the packet were found eleven cloth samples which matched exactly some of the fabrics recovered from warehouse 5 which were amongst the property stolen on 4th March 1998. Four of the samples from the car were found to have been cut from that very cloth. D3 also had possession of two bank paying-in slips for amounts paid into Kan's account for rent dated February and March. Shoes found at D3's house matched the shoe prints found on top of cartons in warehouse 5.

8. In addition, forensic tests on fibres taken from the lorry driven by D1 revealed that someone wearing a jacket taken from D3's house had occupied both the driver's and the passenger's seats in the lorry HL334. D3 was picked out at an identification parade attended by Chun and a further parade attended by Kan as the man they both knew as "Mr. Chan".

9. D2 was also arrested on 13th March 1998. In his premises, he had five keys all of which provided entry to warehouse 5. He also had two Mark Six tickets on him which bore words, figures and letters which had been written by him which matched exactly the identification marks found on the packaging of two of the items of property stolen on 4th March 1998. These were highly significant. They were not merely batch numbers relating to a number of parcels, they were unique to those particular items. D2 also had in his possession a pager which bore the number "Mr. Chan" (D3) had given to Kan as the contact number in 1996.

10. In addition to all of these factors, the prosecution also called a witness called Wong Fun, who was an independent operator of a goods vehicle, who knew D2 and D3 and who, in November and December 1997, was hired by D2 to take goods from warehouse 5 to a container terminal.

Defence Case

11. Turning to the defence case at trial, D2 gave evidence denying any connection whatsoever to warehouse 5. He said that he had been a construction worker since September 1997, and he denied the account given by Wong Fun. D2 explained that the keys for warehouse 5 had been entrusted to him by someone who would one day call to collect them. He did not know they provided access to those premises. As to the Mark Six tickets, he said that he had written these markings on the back of the tickets as the result of a friend in Shenzhen saying that these were the serial numbers of items that his friend hoped he could find in Hong Kong. Dealing with the pager, D2 said that someone called "Chan" had given that to him because Chan had no further use for it.

12. D3 described himself as a decorator and, in that capacity only, he agreed he was connected to warehouse 5. He said that a man called "Chan" had asked him to carry out repairs inside the warehouse. He was given the keys which were never collected from him by Chan. He also had to go a second time to the warehouse to do a small repair job which involved climbing on the boxes which were stored there. He said, in relation to the warehouse proprietors, Chun and Kan, that they must be mistaken in believing him to be Mr. Chan. He explained his possession of the paying-in slips by saying that he borrowed $15,000 from this Mr. Chan and, at his request, had repaid Mr. Chan in this way, namely through the paying-in slips that were found on him. He denied knowingly paying rent for warehouse 5. He also denied meeting Chun on the day of the police raid. He denied occupying the cab of HL334, despite as the judge put it in his Reasons for Verdict:

"... the forensic evidence not challenged by the defence linking his jacket to the seats inside."

13. As for the packet in his car containing the cloth samples taken from some of the stolen goods in warehouse 5, D3's explanation was that he shared his car with another person. When he got into it one day, he noticed the packet and put it into a storage compartment which accounted for his thumbprint on the outside of the packet.

14. From this brief recital, which is a summary of what the Reasons for Verdict revealed the evidence to have been, it can be seen that the case against each Applicant was formidable.

D3's Application

15. Having just dealt with D3's case, it is convenient first to turn to the grounds of appeal which Mr. Thomas Chan has advanced on his behalf. In what he has described as his first "additional" ground of appeal, Mr. Chan submitted that:

"The judge erred in finding that the jacket seized from (D3) at his home shed fibres in the vehicle HL334. The forensic evidence which the judge referred to only suggested that there was a possibility that the brown cotton fibres found in the vehicle came from (D3's) jacket. In such circumstances, the judge had made a false assumption that (D3's) jacket shed fibres inside the vehicle."

16. There is no substance to this ground. Indeed, at no stage did the forensic evidence state there was a "possibility", as this ground suggests, that the brown cotton fibres found in the lorry came from D3's jacket. The evidence was far stronger than that and cannot in any event be looked at in isolation. The evidence was that the fibres were positively consistent with D3's jacket having come into contact with the lorry cab. Of course the scientist could not exclude the possibility of there being another jacket of the same kind with the same material making up the jacket. In that sense, the evidence could not positively identify the jacket as having been in the cab of the lorry. In the circumstances of this case, the judge was entitled to conclude that it was D3's jacket which had been in contact with the seats of that lorry which had, in turn, transported the goods to the warehouse on 12th March 1998.

17. Turning to the second "additional" ground of appeal, this reads that:

"The judge stated 'I draw the irresistible inference that he (D3) was involved in unloading the stolen property and then was one of the two who then drove off. He has not been able to put forward any valid explanation as to how otherwise his jacket shed fibres in the cab and his denial he was there was yet another vain attempt to distance himself from this highly incriminating evidence.' The judge erred in drawing the aforesaid "irresistible inference" as it was based on false assumption that (D3's) jacket shed fibres in the vehicle HL334. Moreover, the judge erred in reversing the burden of proof and had placed it on (D3). The judge wrongly drew the irresistible inference of guilt namely that (D3) was involved in unloading the stolen property and was one of the two who then drove off because of (D3's) failure to put forward any valid explanation as to how otherwise his jacket shed fibres in the cab and his denial he was there. Finally, there was insufficient evidence to support the learned judge's finding that (D3) must have known it was stolen property."

18. Again, there is no substance to this ground. We have already dealt with the evidence of D3's jacket being found to have been in contact with the lorry, a finding that was eminently reasonable in the circumstances of the case. This was one piece of evidence amongst a number of others which provided an overwhelming circumstantial case against D3 and again, we emphasise, cannot be looked at in isolation. D3's defence was rejected by the judge. Indeed, he referred to D3 (and also D2) as having dealt him a "parade of lies". No burden was being put upon D3 to prove his innocence. The plain fact is that D3 gave a number of explanations consistent with innocence which, understandably in the full context of the evidence, the judge utterly rejected.

19. If the judge was relying on recent possession, it would have been better if he had spelt it out clearly. However, this was not a case that depended on recent possession standing by itself. It was just one factor. There was a wealth of evidence to establish that D3 had knowledge, or at least a belief, that the property from which he was so keen to distance himself in charges 2 and 3 was dishonestly acquired.

20. This ground must also fail.

21. Turning to ground 1 of the perfected grounds of appeal against conviction, this reads that:

"The judge erred in his finding that D3 had for nearly two years up to 12th March, 1998, been in charge of warehouse 5, Tong Kung Ling, paying rent when such finding was unsupported by any direct evidence."

22. Again, there was ample evidence from the outline which has already been given in the prosecution's case, which was largely undisputed, to demonstrate that D3 was the so-called "Mr. Chan" who was effectively in charge of warehouse 5. In any event, this ground is of very little significance. It does not matter whether it had been proved that the whole of the period was covered provided the judge was satisfied that Mr. Chan and D3 were, in reality, one and the same person.

23. Ground 2 reads:

"There was no evidence to prove the guilty knowledge of the applicant on charge 3, i.e. that the applicant knew that the goods in warehouse 5, Tong Kung Ling, was stolen on 4th March 1998."

24. Of course the ground, as it stands, is misconceived. There was no requirement to prove knowledge if the evidence gave rise to an inference that D3 either knew or believed that the goods in charge 3 were stolen. These were recently stolen, high value goods, and D3's explanations had been rejected. This is a ground without any substance.

25. Finally, the third ground:

"There was no sufficient linkage to link the cloth sample found in the car FB5516 with the stolen property in question. Further, or in the alternative, there was no evidence to show that the applicant must have known the cloth sample in FB5516 was originated from the stolen property."

26. This ground lacks even a semblance of merit. The judge was entitled to conclude that the cloth samples in D3's car were linked to the stolen cloth in warehouse 5. Indeed, a contrary conclusion would have bordered on the absurd. It suffices to read just a few of the Admitted Facts:

"16. Out of the 24 keys, a car key was found. D3 admitted it was the key of his car. His car FB5516 was located at 3/F car park of the building where he is living. 11 pieces of cloth samples (Exhibits L8-L18) wrapped by a piece of white paper (Exhibit LHS8) were found from the car. The right thumb print of D3 was found on this white paper.

17. The 11 pieces of cloth samples (Exhibit L8-L18) were compared by Government Chemist with the control pieces of cloth items (Exhibit C35-C43) which were cut from various items of fabric goods seized from the warehouse on 12.3.1998. The latter cloth items were part of the goods stolen on 4.3.98 from Asian Terminal Building, Container Port Road, Kwai Chung. As a result of the comparison of the constituent fibres of these items, it was found that the constituent fibres of the control pieces of cloth items (Exhibits C35-C43)agreed in colour, microscopic appearance under various lighting conditions and fibre type with the corresponding pieces of cloth in items L8-L18. Furthermore, the pieces of cloth items C36a, C39a, C40a and C42a were found able to be physically fitted respectively to the pieces of cloth items L18, L12, L17 and L11."

27. Those last exhibits were from the packet in the car. Further admitted details were given about those exhibits but there is no need to read further.

28. It was the discovery of the items of cloth in D3's car that provided one of the essential links between D3 and the stolen cloth in warehouse 5.

D2's Application

29. Turning now to the application made by Mr. Grounds on behalf of D2, the first two grounds of appeal can be dealt with together. These are, firstly, that the judge was wrong to have found D2 knew of believed the goods were stolen property. It is submitted that it was speculation on the part of the judge when he came to the conclusion "only someone with direct access to those items would have known what to write" (referring to the Mark Six tickets), and that there was no evidence which sufficiently proved that when D2 wrote on the tickets he knew or believed the goods to be stolen goods. Secondly, it was submitted the judge erred in drawing an inference that when the keys, the pager and the Mark Six tickets were found in D2's possession, D2 must have known the goods were stolen and therefore must have been dishonest in his receipt of them.

30. All of that evidence had to be looked at together. The crucial evidence was D2's writing of the unique code numbers from two of the stolen parcels in the warehouse which had only been taken on 4th March 1998. Again, the Admitted Facts deal with this vital part of the case against D2:

"10. On 13.3.1998, D2 was arrested by police. Five keys were seized from him and these keys fit the padlocks used to secure the Warehouse. Two Mark Six tickets (Exhibits P11 and P12) were also seized from D2. On the back of these two tickets, some detailed description was written on them. Subsequent comparisons revealed that the description on P12 perfectly matched the description stamped on one of the stolen items recovered from the Warehouse i.e. from some electronic parts. Also, the description on P11 perfectly matched the description on the label paper of another stolen item recovered from the Warehouse i.e. a quantity of solder wire. These two items of stolen goods were part of the goods stolen from the 4th floor of Asia Terminals Building, Container Port Road, Kwai Chung on 4.3.1998."

31. We have also seen those exhibits, and it was an admitted fact that D2 had written those words and codes on the back of his Mark Six tickets.

32. Coupling that evidence with the remainder that tied him in the clearest way to the storage place for all the stolen goods from that charge, but in particular those two parcels, the judge was fully entitled to draw the conclusions to which he came.

33. We can find no foundation in those grounds.

34. Ground 3 raises a point of substance. It is submitted that trial counsel, Paul Fok Hin-fai, was flagrantly incompetent in the conduct of D2's defence in that he failed to put D2's good character in evidence at any stage during the trial.

35. We have commented often enough already about the strength of the evidence against D2. It is plain that only D2's testimony could provide an explanation for the formidable case against him. D2 had no previous convictions of any kind. This was obviously material to his credibility. However, at no stage until sentence was the judge informed that D2 was a man of previous good character.

36. In a most candid affidavit made by Mr. Fok, he accepted, much to his credit, that the fault for this omission was entirely his. He frankly admitted that he was aware of D2's good character from an early stage as he made a bail application in the magistrates' court and had put good character forward in support of the application. Mr. Fok stated in his affidavit that the trial had involved his having so concentrated in putting forward his client's case that in the end he had forgotten to put character in issue.

37. We have had to give very serious consideration to this unfortunate situation, and there is no question that this was a very serious omission. However, we are not inclined, although it was a matter concerning D2's credibility, to say that it was fatal to the conviction in his case. The strong circumstantial evidence against D2 was assessed by the judge in these terms:

"Wong Fun was not the most forthcoming of witnesses but I am nevertheless satisfied he was telling the truth and was not mistaken when he recounted events of last November and December. D2 at those times had access to warehouse 5 and control of the contents that were moved from there on those two occasions. His (D2's) denials were a fabrication intended to distance himself from warehouse 5 which he has enjoyed the right to use. It follows that I reject out of hand that he was only given the keys without knowledge of what locks they controlled only a day before his arrest.

As to the pager, whose number was that of the pager used by Madam Kan to contact 'Mr. Chan': I find D2's explanation of how he came by it and what he used it for fanciful and unbelievable. It demonstrates in fact another link between himself and warehouse 5 and Mr. Chan so-called.

As to the writings on the Mark Six tickets, D2's explanation is blown away by virtue of the letters and numbers being unique to the items of stolen property stamped on the packaging. Only someone with direct access to those items would have known what to write."

38. The judge went on to say:

"In D2's case I am satisfied that by virtue of his having an accurate record of the serial designations of two of the items of the stolen property referred to in charge 3 so soon after the theft, coupled with his access to and otherwise involvement in the premises where they were housed, allows me to find proved beyond reasonable doubt that he must have known it was stolen property and that he dishonestly received it. So he is guilty of charge 3.

I cannot be so satisfied when it comes to charge 2. Whilst there is more than a mere suspicion that he was implicated, I cannot discount the possibility that he played no part in this offence. The benefit of the doubt falls to him on this occasion and he is thus not guilty of that charge.

D2 is acquitted of charge 2 and convicted of charge 3."

39. In the light of these matters, we are of the opinion that, although it was a material irregularity in the trial of D2 for defence counsel not to have adduced evidence of D2's good character, no miscarriage of justice has actually occurred. The verdict could not have been affected and was bound to have been the same whether or not the judge was informed of D2's good character.

Conclusion

40. Accordingly, in the case of D2, we shall grant leave and, treating the hearing as the appeal and applying the proviso to section 83 of the Criminal Procedure Ordinance, Cap. 221, we dismiss the appeal.

41. So far as D3 is concerned, his application is dismissed.

D3's sentence

42. Turning now to sentence, it is submitted on behalf of D3 that his sentence was manifestly excessive. Mr. Annie Lai, in a somewhat unusual arrangement which we are not anxious to encourage, was separately instructed on this aspect by the same solicitors who briefed Mr. Chan to argue the application relating to conviction. She argued that a starting point of four years' imprisonment for each of these offences was outside the proper range for offences of this nature in the light of what is known about D3's role, especially where the goods had been recovered and where there was no evidence of D3's knowledge that the goods would be of such high value before receiving them. Miss Lai also submitted that the judge erred in making the sentences consecutive, in circumstances where the court could not have been satisfied that the offences did not arise from the same set of facts. She suggested that the goods might have been received at the same time albeit they were stolen from different victims on different dates. She complained also that there was a very great disparity between the sentence which was imposed on D3 and that of his co-defendants, particularly D1.

43. In passing sentence, the judge arrived at the four-year starting point for each offence, taking into account that these two separate charges involved property valued respectively at approximately US$178,000 and approximately HK$2,200,000. He also took into account that this was a case involving careful planning and that, whilst nothing was lost, as the judge rightly pointed out this was due to the excellence of the police work and in no sense due to the actions of either of the receivers.

44. The lorry driver (D1), responsible for the theft in charge 1, received a sentence of eighteen months which, on the face of it, was remarkably lenient for a breach of trust by an employee who had stolen such a valuable load. The judge, however, was dealing with D3 and also D2 as professional receivers. Additionally, D3 had a bad criminal record. The judge distinguished D2 on this ground as a man who had good character and who was entitled, therefore, to have that taken into account. The judge went on to say this:

"There remains for consideration how the two sentences D3 is to serve should run. They are for two separate offences which would warrant being served separately, but they are similar in nature and committed close together in time. Moreover, I have to pay heed to the totality principle to ensure that the overall sentence to be served is not excessive. In the circumstances I think the proper sentence is 5 years' imprisonment, the terms to be served partly concurrently and partly consecutively to achieve this.

D2, for charge 3, is sentenced to 3 years' imprisonment.

D3, for charge 2, is sentenced to 4 years' imprisonment and for charge 3, to 4 years' imprisonment to run from one year after the starting date for the sentence imposed for charge 2, making a total of 5 years' imprisonment."

45. We have no doubt that the judge had correctly and fairly assessed the position. This was a serious case of handling stolen goods. The combined value of the two offences was considerable, and it was unrealistic to suggest on the surveillance facts of this case that the goods from both of the thefts might have been received at one and the same time. The judge was right to deal with the two offences separately and to impose to some extent a consecutive sentence for the subsequent offence.

46. This application is also dismissed.