HKSAR v. LAU TAT YUEN AND ANOTHER

DCCC 1004/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1004 OF 2014

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REASONS FOR VERDICT

1. At the commencement of the trial D1 pleaded guilty and D2 pleaded not guilty to one joint charge of theft of a light goods vehicle, contrary to section 9 of the Theft Ordinance, Chapter 210.

2. At the end of the prosecution case I ruled D2 had no case to answer on the charge of theft.  By virtue of section 32 of the Theft Ordinance an accused may be found guilty of the alternative verdict of handling stolen goods.  I ruled D2 had a case to answer on the alternative of handling stolen goods under both limbs, namely that (a) he received stolen goods and (b) he assisted in the retention, removal or disposal of stolen goods for the benefit of D1.

Introduction

3. On the evening of the 3 September last year the driver of light goods vehicle HF 1927 Mr Wong Yee Kit parked HF 1927 at the Wilson car park on Ma Sik Road in Sheung Shui.  The next evening at 21:42 the vehicle was stolen from the Wilson car park.  

4. Just before 22:00 the same evening D2 was seen driving private carLE 5575 to a garage on Kam Sheung Road in Sheung Shui, which garage was at the time under observation by police officers from the Criminal Intelligence Bureau.  After alighting from LE 5575 D2 opened the door of the garage and drove private car MX 509 out of the garage.  At this time D1 arrived driving HF 1927 which he reversed into the garage.  D2 then drove MX 509 back into the garage.  D1 and D2 were intercepted and arrested when they left the garage.

5. The prosecution case is that D2 knowing HF 1927 was stolen handled HF 1927 by either receiving HF 1927 or assisting in the retention, removal or disposal of HF 1927 for the benefit of D1.  The defence submit that the prosecution have failed to proved guilty knowledge on the part of D2. 

Evidence

6. The prosecution called Mr Wong (PW1), the driver of HF 1927 and PC 4976 (PW3) who was observing the garage and intercepted and arrested D2. Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P26) including production of a sketch showing the location of the garage (exhibit P16) and photographs (exhibits P17 & P18).  I will refer to the admitted facts as I review the evidence. 

7. At trial the prosecution also relied on an oral statement attributed to D2; the post recording of that statement (exhibit PP22) and a subsequent video interview (exhibits PP24 & PP25).  I ruled all statements inadmissible in evidence.   

8. The defendant elected not to give evidence and no witnesses were called on his behalf. No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.   

9. Admitted in evidence is that D2 has a clear criminal record.  In considering good character I direct myself in accordance with the decision in HKSAR v Tang Siu Man [1997-98] 1 HKCFAR 107.

10. In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict. 

11. I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendant as well as one in his favour the adverse inference cannot be drawn.   

Theft of HF 1927

12. Although D1 has pleaded guilty to the charge of theft and admitted he was the one who stole HF 1927 from the Wilson car park these matters have not been admitted in the trial of D2.  The fact HF 1927 was stolen is however not challenged.  The evidence in this regard can therefore be briefly stated.

13. Ms Leung Chi Man was the registered owner of HF 1927 (see paragraph 1 of the admitted facts).  Around 23:30 on the evening of the 3 September last year Mr Wong Yee Kit (PW1), the driver of HF 1927, securely parked HF 1927 at the Wilson car park by turning on the anti-theft alarm and locking the vehicle.  The next evening at 21:42 the CCTV of the Wilson car park captured HF 1927 being driven out of the car park (see paragraph 2 of the admitted facts). 

14. The same evening police officers from the Criminal Intelligence Bureau, including PC 4976 (PW3), were observing the garage on Kam Sheung Road. Just before 22:00 PC 4976 saw D2 arrive at the garage driving private carLE 5575.  After alighting from LE 5575 D2 opened the door of the garage and drove private car MX 509 out of the garage which he parked behind LE 5575.  At this time D1 arrived driving HF 1927 which he reversed into the garage.  D2 then drove MX 509 back into the garage.  D1 and D2 were intercepted and arrested when they left the garage. 

15. The glass window of the driver’s door of HF 1927 was broken (see photograph 17, exhibit P17) and the ignition system had been tampered with (see photograph 18, exhibit P17).  Admitted in evidence is that a specially made electrical adaptor, commonly known as an “ignition switch”, was attached to the vehicle’s ignition system so that the engine could be started without the ignition key (see paragraph 8 of the admitted facts). 

16. Mr Wong was asked to attend the garage where he identified HF 1927.  When Mr Wong parked HF 1927 on the evening of the 3 September the glass window was not broken and the ignition system had not been tampered with.  A bag of tools and a pair of gloves found inside the vehicle (see paragraph 3 of the admitted facts and photographs 6-12, exhibit P17) did not belong to Mr Wong and were not left in the vehicle when he secured the vehicle the night before. 

17. I am satisfied so I am sure on this evidence the only inference to draw is that HF 1927 was stolen from the Wilson car park by D1.  I am further satisfied that the theft of HF 1927 was completed when D1 drove HF 1927 out of the Wilson car park.  Although as will be seen later there was telephone communication between D1 and D2 prior to and after D1 drove HF 1927 out of the Wilson car park I was satisfied there was no evidence linking D2 with the theft. I therefore ruled D2 had no case to answer on the charge of theft.

18. The prosecution invited the court to consider the alternative charge of handling. The prosecution in opening the case put forward handling as an alternative under the second limb.  Mr Beel asked that both limbs be considered.  After further consideration I was satisfied there was a case to answer under both limbs.  I therefore now turn to consider the evidence relating to handling.

Handling stolen goods

19. The evidence relating to D2’s involvement with HF 1927 came primarily from the testimony of PC 4976.  As noted earlier police officers from the Criminal Intelligence Bureau, including PC 4976, were observing the garage on Kam Sheung Road. 

20. Just before 22:00 PC 4976 saw D2 arrive at the garage driving private car LE 5575. After alighting from LE 5575 D2 opened the door of the garage and turned the lights on.  D2 then drove private car MX 509 out of the garage and parked behind LE 5575.  D2 then alighted from MX 509 and stood next to the car.  At this time D1 arrived driving HF 1927 which he reversed into the garage.  D2 then drove MX 509 back into the garage.  After D2 alighted from MX 509 he walked out of the garage together with D1. 

21. At 22:01 PC 4976 left his observation point at which time he was instructed through the radio to intercept D1 and D2.  When PC 3810 said “police” D2 suddenly started to run.  PC 4976 immediately ran after D2 shouting “police don’t run away.”  D2 lost his balance and fell down.  PC 4976 was then able to catch up with D2 and subdue him.

22. Admitted in evidence is that PC 4976 seized from D2 a set of keys for the garage and a set of keys for LE 5575 (see paragraph 4 of the admitted facts).  Also admitted is that two mobile phones registered to D2 were found inside LE 5575 and the call records of these phones showing that D1 called D2 four times on the 4 September and D2 called D1 twice (see paragraph 5 of the admitted facts). 

Inferences

23. The call records show D1 and D2 were in contact both before and after HF 1927 was driven out of the Wilson car park.  D1 called D2 four times that day with the last call being made 10 minutes prior to driving HF 1927 out of the Wilson car park.  D2 called D1 twice both calls being made after HF 1927 was driven out of the Wilson car park. 

24. I am satisfied so I am sure the only inference to draw is that the arrangements for D2 to go to the garage and open the door of the garage for D1 were made during these calls.  I am not however satisfied that I can draw the inference from these calls that at the time D2 opened the garage he knew HF 1927 was stolen. 

25. The circumstantial evidence from which the prosecution invite the court to draw the inference that D2 knew HF 1927 was stolen when he opened the garage door is the time of night this took place; the window of the driver’s door was broken; the ignition system had been tampered with; and D2 was in possession of the keys to the garage.  Added to this is that D2 ran away when PC 3810 shouted “police.” 

Broken glass and ignition system

26. If D2 was aware at the time he opened the garage door that thewindow of the driver’s door had been brokenand the ignition tampered with a court may draw the inference he opened the garage door knowing HF 1927 was stolen and thereby assisted in the retention, removal or disposal of stolen goods for the benefit of D1. 

27. PC 4976 testified that after D2 parked MX 509 behind LE 5575 (which is shown in photograph 3, exhibit P17) he alighted from MX 509 and stood next to the car.  There is no evidence that when D1 arrived driving HF 1927 that D2 spoke to D1 or approached the driver’s door.  The evidence of PC 4976 is that D1 on arriving immediately reversed HF 1927 into the garage.  It is perhaps not surprising PC 4976 made no mention of the broken window at this stage because he only became aware the window was broken after he had apprehended D2.

28. D1 reversing HF 1927 into the garage means that D2 would see the nearside of HF 1927 (i.e. the passenger’s side) and not the driver’s side.  After D2 drove MX 509 back into the garage the evidence of PC 4976 is that D2 got out of the car and left the garage with D1.  There is no evidence D2 went to look at HF 1927. From where MX 509 is parked in the garage only the nearside of HF 1927 can be seen and not the driver’s side (see photograph 5, exhibit P17). 

29. PC 4976 left his observation point at 22:01 after D1 and D2 walked out of the garage.  D1 having driven HF 1927 to the garage just before 22:00 the time D2 was in the garage after D1 reversed HF 1927 into the garage must have been very short. 

30. On the evidence I am not satisfied that when D1 reversed HF 1927 into the garage D2 knew that the window of the driver’s door had been broken or became aware the window was broken after he had parked MX 509 in the garage.  Even if one could say D2 saw the broken window it does not follow that D2 knew HF 1927 was stolen. A broken window is equally consistent with a vehicle in need of repair.  Equally I find there is no evidence that D2 saw that the ignition had been tampered with either when HF 1927 was reversed into the garage or after he had parked MX 509 in the garage. 

Keys to the garage

31. In asking the court to consider the alternative verdict of handling stolen goods Mr Beel submitted that the possession of the keys to the garage showed that D2 was in control of the garage and therefore control over the stolen property.  Mr Beel submitted that in the absence of an explanation for the possession of the keys or other evidence the court may draw the inference from D2 opening the garage door at night shortly after HF 1927 was stolen that D2 received HF 1927 knowing HF 1927 was stolen.  In making this submission Mr Beel refers to the cases on recent possession including HKSAR v Cheng Chi Wai [2011] 4 HKLRD 360.

32. Whether the inference can be drawn depends not only on the suspicious facts but the whole of the evidence in the case.  The facts of the present case are far removed from those in Cheng Chi Wai where six stolen vehicles and equipment suitable for disguising stolen vehicles and removing chassis numbers were found in a motor vehicle workshop, some of the vehicles being found only a short time after they were stolen. 

33. In Cheng Chi Wai the applicant was the operator of the motor vehicle workshop.  There is no evidence before the court as to ownership of the garage.  Whilst the police at the time referred to the garage as an unnamed garage (see sketch, exhibit P16) the police at some stage did find out the name of the garage.  In the index to the photographs, exhibit P17, the garage is called Kai King Motor Services Company. There is no evidence the garage is anything other than a genuine car repairer or that other stolen vehicles were found in the garage. 

34. Whilst the court may draw the inference from the possession of the keys that D2 was the owner or in some way in charge or control of the garage I am not satisfied this is the only inference to draw.  I find inherently improbable a young man of 23 will be the owner of or in charge or control of a garage.  The possession of the keys is for example equally consistent with someone being an employee or someone assisting in opening the garage. 

Running away

35. This leaves the defendant running away on hearing “police”.  Whilst this raises suspicion I am not satisfied in the circumstances of the case I can draw the inference of guilty knowledge from the fact D2 tried to run away.   

36. Whilst the circumstances are certainly suspicious I find I am not satisfied that by opening the garage and allowing HF 1927 to be parked in the garage the only inference to draw is that D2 handled HF 1927 knowing or believing HF 1927 was stolen.  The benefit of the doubt is given to D2 who is acquitted of the alternative charge of handling stolen goods.