HKSAR v. FAN CHI WAI

CACC 343/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 343 OF 2015

(ON APPEAL FROM DCCC 207 OF 2015)

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REASONS FOR JUDGMENT
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Hon McWalters JA (giving the reasons for judgment of the court):

1. The applicant was tried in the District Court before Judge Woodcock (“the judge”) on a charge sheet containing one charge of handling stolen goods, namely a motorcycle bearing registration mark RT4352, contrary to section 24 of the Theft Ordinance, Cap 210. He pleaded not guilty to the charge and, on 16 September 2015, was convicted after trial. On the same day he was sentenced to 2 years and 6 months’ imprisonment. The judge also activated a suspended sentence of 2 months’ imprisonment that had previously been imposed on the applicant and which was still in operation at the time the applicant handled the stolen motorcycle.[1]

2. On 8 October 2015, the applicant filed a Notice of Application for Leave to Appeal in respect of both his conviction and sentence.  The leave application was heard by Macrae JA on 6 May 2016, and was refused the same day.

3. On 11 May 2016, the applicant filed a Notice of Renewal of Application after Refusal by the Single Judge in respect of his application for leave to appeal conviction only.

4. At the hearing of his renewal application we refused it and said we would hand down our reasons for doing so at a later date.  This we now do.

The prosecution case

5. On 22 December 2014, Mr Vong Chi-peng (“PW1”) parked a motorcycle provided to him by his company underneath a footbridge near a pillar at the Wan Tsui Estate Shopping Centre.  The rear tail box attached to the motorcycle had his company’s name printed across it, and contained his tools and belongings.  The motorcycle itself was worth about HK$40,000.  At about 9:30 am the next day, Mr Vong found that the bike was missing and subsequently that day made a report to the police.

6. On 24 December 2014, two police officers (“PW2” and “PW6”) were separately on patrol near Fung Wah Estate.  At a briefing earlier that day they had been instructed to look out for vehicle theft activity.  At around 6:10 pm, PW2, who was in plain clothes, saw the applicant walk into an area under the footbridge stairs where several motorcycles were parked.  He kept the applicant under observation and saw him use his right hand to touch the front part of a white motorcycle.  Thinking that the applicant had noticed him, PW2 revealed his police identity, whereupon the applicant turned to walk away quickly.  PW2 moved quickly to him and intercepted him and PW6, who had observed PW2’s encounter with the applicant, joined him. 

7. The applicant was taken back to where the motorcycle was parked. PW2 asked the applicant whether the motorcycle belonged to him and he replied that it did.  PW2 then searched him and found he was not in possession of either a key to the motorcycle or a driving licence.  This made him suspicious.  The applicant explained to the police officers that he had bought the motorcycle from an unknown man.  He showed the officers how to turn on the engine of the bike by a switch, without using an ignition key.

8. At 6.14 pm, PW2 called the console to check the identity of the registered owner of the motorcycle and was informed that it had been reported stolen.  Then, at 6.16 pm, the applicant was arrested and cautioned for taking a conveyance without authority.

9. Under caution, the applicant insisted he had bought the motorcycle, and that the white helmet next to it belonged to him.  The applicant also said that he had thrown away the tailgate box in the car park of Wan Tsui Estate. 

10. The applicant was then handcuffed and a police vehicle took him to Chai Wan Police Station.  At the station, the applicant refused to sign against the post-record made by PW2 in his notebook of the statement which he, the applicant, had made under caution.

11. Shortly thereafter, on the same day, the tail box was found by another police officer, PW3, at Chak Tsui House at Wan Tsui Estate, at the location provided by the applicant.  This officer guarded the tail box and later that evening it was identified by Mr Vong.

12. Sometime after 10 pm on 24 December 2014, the police called Mr Vong and asked him to go to Chak Tsui House at Wan Tsui Estate, where he identified the rear tail box of his motorcycle.  Mr Vong was then taken to a bridge near Sau Fung House, where he identified the stolen motorcycle, without its rear tail box, by its chassis number.  He also confirmed that the engine ignition mechanism of the motorcycle had been modified in that ignition was now enabled by an “on/off” switch rather than by a key.

13. Another police officer, PW5, testified that scene of crime investigations were carried out by forensic officers and this included testing for fingerprints and taking DNA samples.  But he was unaware of the outcome of these investigations.[2]

14. A police sergeant was tendered for cross-examination in the prosecution case, at the request of the applicant.  This witness (“PW7”) testified that a white seven-seater van had been used to transport police officers, including himself, from Chai Wan police station.  Amongst those on board were PW2 and PW6 who were dropped off at Fung Wah Estate.  Later, after the applicant had been arrested, the same vehicle returned and brought more colleagues in it.

The defence case

15. The applicant acted in person during his trial.  He did not challenge the fact that the motorcycle had been stolen on 22 December 2014 from Wan Tsui Estate.

16. His case at trial was that the police framed him for the offence and that none of the events alleged by PW2 had, in fact, occurred, including all the questions and answers that PW2 alleged took place both before and after caution.

17. The applicant said that on the material day, he was in a bad mood. He had spent all day cleaning a new flat into which he was intending to move. He was also in the process of breaking up with his girlfriend.  He left the flat so that he could get away from his friends and contact his girlfriend privately.  He was walking aimlessly when he got to the car park.  He passed a white seven-seater vehicle parked there with all the backs of the seats down. He walked up to it and saw four people lying down in the vehicle, amongst whom were PW2, PW6 and PW7.  The applicant then shouted and swore at them through the window, saying to them “What are you doing here?”  PW7, then got out of the vehicle, revealed his police identity and pushed the applicant, asking him what he was doing.  They argued and swore at each other, and some pushing and shoving ensued.  The other three officers got out of the vehicle and verbally abused the applicant. 

18. PW2 then handcuffed the applicant and arrested him.  PW7 told the applicant that they would frame him for stealing the motorcycle.  The applicant maintained that no one had asked him any questions.

19. The applicant was asked by the judge why he approached the seven-seater vehicle and shouted and swore at the occupants.  He gave the following explanation:

“And I grew up in Chai Wan and I am a rude person. I’m not educated and elegant person. When I found this vehicle and found these people being so furtive, perhaps also on top of my bad mood, so I approached and see what they were doing, and to my knowledge, and to persons like me - rude person like me - and it is really very normal to shout at it and telling people off directly like this because at that time I didn’t know that they were cops. I thought there was somebody being furtive there. That’s it.”[3]

Submissions before verdict

20. After the judge had explained to the applicant his right to make a submission on whether there was a case to answer, the applicant elected to do so.  He said:

“The evidence of this case solely depend on the statements of the two police officers. In this case, fingerprints and DNA examination have been done, but no results -- none of my fingerprints and DNA were found. And also another very important piece of evidence, the CCTV at the scene, is not provided to the court.

There also isn’t any admission or statement that I agree and signed. And also, the evidence given by the police officers, their evidence are also contradictory to each other and they are illogical and unreasonable.

Because of the above reasons, I think that the evidence provided by the prosecution is very weak and is not sufficient to convict me. These are my own views.”[4]

21. The judge found a case to answer and the applicant then elected to give evidence.  After his testimony was completed he closed his case.  The prosecutor made no submission and for his submission the applicant adopted what he had said at the end of the prosecution case, but went on to make the following additional points:

(i) his knowledge of the white car was important as he could only have been aware of it if it had in fact existed and been present at the scene;

(ii) from unused material he had leant that the thief of the motorcycle had been apprehended and this person had said in a statement that he had passed the motorcycle to a person called Ming Chai who had also been arrested.  The person Ming Chai had never been asked by the police if he knew the applicant or had passed the motorcycle to him; and

(iii) the police officers who testified gave unreasonable and contradictory evidence.

The Reasons for Verdict

22. In her Reasons for Verdict, the judge considered the case for both the prosecution and defence, the elements of the offence which the prosecution needed to prove, and the doctrine of recent possession.

23. The judge accepted the evidence of the prosecution and rejected that of the defence.  The judge found the applicant’s explanation that the police framed him to be far-fetched and inherently improbable.  She accepted that the white vehicle had been used to transport police officers and that was how the applicant had become aware of it.

24. In particular, the judge accepted that the applicant had told PW2 where the rear tail box was left, so that the police were later able to locate it.  She found that the applicant had said this in an attempt to prove or legitimize his explanation that he had bought the motorcycle.  However, in her view, the explanation about the tail box pointed to the applicant having guilty knowledge that the motorcycle was stolen property.  She said she was sure that he discarded the tail box because, with “Kone Elevator” written across it, it was an incriminating piece of evidence.  Furthermore, the ignition had been tampered with so that that motorcycle could be turned on without an ignition key.

25. In his submission to the judge the applicant made much of the fact that the police did not retrieve footage from CCTV near the car park.  As to this and the lack of fingerprint evidence, the judge said:

“The defendant also makes much of the fact the police did not retrieve CCTV near the car park. The police did not go to retrieve it. They thought there was no need. That is not fatal to the prosecution case. The same applies to the lack of fingerprint evidence on the motorcycle. Again, that is not fatal to the prosecution case.”[5]

26. The judge then inferred from the fact, as she had found, that the applicant had given an untrue explanation, namely that he had bought the vehicle from an unknown man, and the other prosecution evidence accepted by her, that the applicant had knowledge the motorcycle had been stolen and had dishonestly received it.

The grounds of appeal

27. The applicant did not provide any grounds in his Notice of Renewal Application after Refusal by the Single Judge.  However, in a letter to the court dated 18 July 2016, the applicant set out his grounds of appeal.  His main complaint was the failure of the police to seize CCTV footage of the car park of the public housing estate, the existence of such footage having been accepted by prosecution witnesses in evidence.  From this failure he then went on to argue that:

(i) the police were under a duty to collect all relevant evidence and this included the CCTV footage; 

(ii) the CCTV footage had great evidential importance in that:

  (a) it was a reliable record of what transpired;

  (b) would have avoided the need for the judge to have to rely on drawing inferences in order to make findings as to where the truth lay; and

  (c) it would have proved his innocence.

(iii) by the judge’s refusal to accept the importance of the CCTV footage he was deprived of a fair trial.

28. The applicant argued that the importance of the footage from the CCTV had not been properly considered by the judge who did not take seriously the importance of it as evidence, especially to the defence case.

29. The applicant disputed the inference drawn by the trial judge from the admissions he made at the scene that he was trying to persuade the police to believe that the motorcycle was his property and to let him go.  It was submitted that the inference was not reasonable as what was allegedly said was equivalent to an admission of stealing the vehicle or of handling stolen goods.

The respondent’s submissions

30. Ms Denise Chan ADPP (Ag), on behalf of the respondent, submitted that PW2, PW6 and PW7 were asked about the CCTV footage in cross-examination by the applicant at trial.  The issue was also raised in a no case submission made by the applicant, which was adopted as his final submission.  However, no application had been made to adjourn the case to obtain the CCTV. 

31. The respondent submitted that there had been no suggestion at trial that the police had deliberately failed to obtain the CCTV footage, or that they were destroyed; the applicant had not suggested at trial that he was so prejudiced that a fair trial was not possible[6]. Therefore, it was averred that the applicant had not shown that he was prejudiced by the non-seizure of the CCTV, since the nature of the alleged missing evidence was unknown.

32. It was further submitted that the judge in her reasons for verdict had reviewed all the evidence with care and detail, and was alive to the applicant’s criticism as to the lack of CCTV evidence.  The judge correctly pointed out that the main issue was one of credibility, and had reminded herself of the standard and burden of proof. The judge was entitled to accept the evidence of the prosecution witnesses.  Therefore, the respondent submitted that the judge was correct to conclude that the lack of fingerprint and CCTV evidence was not fatal to the prosecution case.

Discussion

33. In respect of the CCTV footage the fact that the police did not seize it is not, in itself, a sufficient basis for quashing the conviction.  There are many occasions when trials proceed in the absence of evidence that, had it been available, might have been placed before the court.  The applicant asserted that the failure of the police to seize the CCTV footage was a serious dereliction of duty bordering on the improper.  There was absolutely no evidence whatsoever of any malice or impropriety in the police’s actions.  This was nothing more than the not unusual position of a defendant facing trial and claiming that evidence which was potentially beneficial to him was no longer available. 

34. The issues that arise when this happens are twofold.  The first is whether the absence of the evidence impacts so adversely and incurably on the trial that, notwithstanding the remedial measures available to the court, a fair trial for the defendant is impossible and continuing the prosecution would amount to an abuse of process.[7] The second issue arises when the absence of the evidence does not deprive the defendant of his right to a fair trial and the trial proceeds.  Then, the issue arises of whether, in considering the whole of the evidence, the judge has shown that he has taken into account the absence of the missing evidence and how its unavailability affected the issues he had to decide and the defendant’s ability to mount his defence.[8]

35. When a defendant is legally represented his lawyer will usually raise the first issue as the ground for an application to stay the proceedings.  Because this applicant was not legally represented, this did not happen.  Nevertheless, in the course of the trial the applicant made it very clear to the judge that he was making the absence of the CCTV footage an issue in the trial.  He was arguing that:

(i) there was no independent evidence, such as fingerprint or DNA evidence, to link him to the stolen motorcycle;

(ii) the only evidence linking him to the stolen motorcycle was the testimony of the police officers;

(iii) the police officers were not credible witnesses; and

(iv) the CCTV footage was independent evidence which would show the police officers were lying.

36. This argument demonstrated how the missing CCTV footage could be of value to the defence case.  But was there evidence that established that the CCTV footage would actually assist the applicant?  There was evidence from one of the police officers, PW2, that there was one CCTV camera “in the vicinity of the car park.”[9]  PW7 said he knew there was CCTV in the car park but it was his recollection there was not CCTV at the location of the motorcycle.[10]  PW6 agreed that there are CCTV cameras at all the car parks of housing estates or at the boundaries of housing estates.[11]  PW6 was again asked at the end of his cross‑examination about the presence of CCTV:

“Q. Do you agree that there was CCTV at the scene?

A: I remember it seemed to me that there was.”[12]

37. When the applicant testified in his defence he made no mention of the presence or location of CCTV cameras at the scene of his arrest.

38. There was, therefore, evidence of the presence of CCTV cameras at the car park of the estate and some evidence, from PW6, but contradicted by PW7, that there was CCTV at the scene of the applicant’s arrest.  But in the absence of any evidence that this camera had a field of view which would have captured the location where the police witnesses said they arrested the applicant and in the absence of evidence that the camera was working and that the images it captured were being recorded, there would be insufficient evidential basis for the judge to conclude that a recording existed which could provide relevant evidence of what had happened.  In these circumstances, there would have been no basis for the judge to conclude that the applicant could not receive a fair trial.

39. The next issue is whether it is apparent from the judge’s Reasons for Verdict that when considering the evidence she kept in mind the difficulties presented to the defence by the absence of the CCTV evidence.

40. We have no doubt she did.  As we have pointed out a key feature of the applicant’s cross-examination was to elicit from the relevant prosecution witnesses evidence of the existence of CCTV cameras at the location of his arrest.  Furthermore, the evidence so elicited was a major plank in the applicant’s submissions.  That provides the context in which the judge’s comments in her Reasons for Verdict need to be viewed. 

41. When describing the defence case the judge said:

“it is clear, from what he asked PW2, PW6 and PW7 in cross-examination, what his case was, and allegations put were succinct.”[13]

42. Then, in prefacing her findings the judge said:

“I have carefully considered the evidence and submissions made.”[14]

And later she said:

“I consider everything the defendant had to say in submission, both his submission of no case to answer and his final submission. Nothing convinces me to doubt my finding that the prosecution witnesses were all credible.”[15]

43. Finally, in her findings, the judge made the statements quoted in paragraph 25 of this judgment.

44. All of these statements by the judge in her Reasons for Verdict persuade us that she kept in mind the absence of the CCTV footage and the importance the applicant placed upon it.

45. The judge rightly regarded this case as coming down to the credibility of the witnesses.  For reasons which cannot be faulted she concluded that the applicant’s evidence was not credible and that the evidence of the police officers was credible.

46. The applicant’s complaint about the drawing of inferences relates to proof of the element of the offence that the applicant knew the motorcycle was stolen.  This issue only arose once the judge had rejected the applicant’s evidence and accepted that of the police officers.  Once this was done the evidence before the judge was:

(i) the applicant admitted possession of the motorcycle;

(ii) the applicant admitted knowledge of the tail box and admitted removing it and discarding it;

(iii) the applicant claimed to have acquired the motorcycle from an unknown man which claim the judge found to be a deliberate lie;

(iv) the applicant knew of the modification to the ignition which enabled the engine to be started without a key; and 

(v) the doctrine of recent possession which the judge said, correctly, enabled her to “infer guilty knowledge if there is no explanation to account for possession or any explanation is untrue where suspicious circumstances exist.”

47. It is not surprising that the judge rejected the applicant’s explanation.  An explanation which fails to provide the identity of the previous owner, such as “I bought it from an unknown man”, is typical of defendants who handle stolen property.  But it is not a credible explanation when it is advanced in respect of vehicles whose transfer is based upon a regulated registration of ownership system.

48. Nor is there anything wrong in the judge inferring that by his conduct and statements the applicant was trying to persuade the police officers that he was the true owner of the vehicle.

49. The inference of knowledge was therefore based upon the applicant being in recent possession of a stolen motorcycle which had been modified to enable it to be used without the original ignition key and from which a tail box, capable of identifying the true owner, had been removed by the applicant. Finally the applicant gave a false explanation of how he acquired it, a key component of which was that he was unable to identify the person from whom he acquired it.  On these primary facts we are in no doubt at all that the judge was perfectly entitled to draw the inference that the applicant knew the motorcycle was stolen.

Conclusion

50. For these reasons we refused the applicant his renewed application for leave to appeal his conviction.

[1] The applicant was convicted by Kowloon City Magistracy on 12 December 2013 for the offence of claiming to be a member of a triad society.  He was sentenced to 2 months’ imprisonment suspended for 18 months.

[2] Appeal bundle page 65Q – 66A.  However, in respect of the fingerprints the prosecutor, Mr Poots, informed the judge from the bar table that “according to the documents, a test was done; no result.” (See appeal bundle page 34K).

[3] Appeal bundle, page 130T-131C.

[4] Appeal bundle, page 125A-F.

[5] Appeal bundle, page 18E-H.

[6] Respondent’s Submissions, paragraph 12.

[7] HKSAR v Lee Ming Tee & Anor (2001) 4 HKCFAR 133.

[8] R v Holgate (No 1) [1996] 3 HKC 315.

[9] Appeal bundle, page 96C-E.

[10] Appeal bundle, pages 107S-108E.

[11] Appeal bundle, page 114Q-S.

[12] Appeal bundle, page 122S.

[13] Appeal bundle, page 13P-Q.

[14] Appeal bundle, page 15S.

[15] Appeal bundle, page 18I-K.