HKSAR v. KEUNG CHEUNG YAU AND ANOTHER

HCMA 477/2019

[2020] HKCFI 155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 477 OF 2019

(ON APPEAL FROM EASTERN MAGISTRACY

CASE NO ESCC 280 OF 2019)

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JUDGMENT

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1.  The 1st and 2nd Appellants (A1 & A2) were convicted after trial of a joint charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. The Deputy Magistrate (Magistrate) sentenced each to 12 months’ imprisonment. They now appeal against conviction only.

Prosecution Case

2.  As summarised by the Magistrate, the prosecution case is that at around 10 pm on 25 January 2019, A1 and A2 were the only crew on board a Tugboat.  That Tugboat came alongside a Dumb Lighter and berthed alongside her.  When police officers boarded the Tugboat and the Dumb Lighter, they found A1 on the 3/F of the working platform of the Dumb Lighter where there was a fuel tank.  There, a rubber hose was found connecting the fuel tank of the Dumb Lighter and Tugboat, some liquid flowing in the rubber hose in the direction away from the fuel tank of the Dumb Lighter and A2 was in the cockpit of the Tugboat.  A1 and A2 were stealing diesel fuel from the Dumb Lighter.

3.  The prosecution called upon five witnesses, PW1, police officer, saying that at around 10 pm on 25 January 2019, he noticed a vessel suspicious and it berthed next to a Dumb Lighter.  PW2 and PW3, both police officers later on boarding the Dumb Lighter, PW2 found A1 on the 3/F of the working platform where there was a fuel tank, and PW2 also found a rubber hose connecting the fuel tank of the Dumb Lighter and Tugboat, and he saw some liquid flowing in the rubber hose in the direction away from the fuel tank of the Dumb Lighter.  While PW3, upon boarding the Tugboat, he also found a rubber hose on the 3/F of the working platform of the Dumb Lighter connected to the opening of a structure, which appeared to be the oil tank of the Tugboat, PW3 also saw some wet liquid inside the rubber hose.  And upon search, he found A2 inside the cockpit of the Tugboat.

4.  PW4, the staff in charge of the Dumb Lighter, said he berthed the Dumb Lighter at around 7.15 pm on 25 January 2019.  When he left the Dumb Lighter, no rubber hose was attached to the fuel tank on the 3/F of the working platform, but when he returned to the Dumb Lighter the next morning at around 8 am, the police were there and he found a rubber hose attached to the fuel tank and there was nothing left the fuel tank.  But before he left the Dumb Lighter on 25 January 2019, there was diesel in the fuel tank. 

5.  PW5, the vessel manager of the Tugboat said A1 was the mechanic of the Tugboat and A2, the captain.  At around 6 pm on 25 January 2019, he instructed A2 to tow a ship to the China-Hong Kong Ferry Pier and then proceed to Cheung Chau after dropping off that ship, but he did not instruct either A1 or A2 to take the Tugboat to  Cha Kwo Ling or Yau Tong area that evening. 

Defence Case

6.  The Defence Case was that both Appellants did not steal any diesel fuel, and that the rubber hose was not connected to the Tugboat, but hanging between the Dumb Lighter and the Tugboat. 

7.  Both Appellants did not give evidence, but called upon one witness, Lai Ping.  He said the Tugboat had two teams, one comprising both Appellants, the other himself and his captain.  Two teams would operate the Tugboat on shifts.  On 25 January 2019, he received a call and was informed to take over duty on the Tugboat the following morning at Yau Tong Ferry Pier at Cha Kwo Ling, and the toilet on the Tugboat was not in good condition. 

Magistrate’s Findings

8.  The Magistrate rejected the evidence of the defence witness and found him evasive.  When asked about whether it was his company responsible for paying the diesel fuel for the Tugboat, he did not answer the questions directly, and according to him, his company is not concerned with where changes of shift would take place, the Magistrate do not accept this because the company is responsible for the cost of the diesel fuel for the Tugboat and, in any event, this aspect of his evidence was also never put to PW5, the company representative. 

9.  As to the Admitted Facts, that under caution, A1 told the police that he had abdominal pain and therefore went to the Dumb Lighter to borrow medicine.  The Magistrate did not give any weight as the explanation had not been tested under cross-examination.  The Magistrate also found the explanation hardly plausible and inconceivable that A1 would expect to find medication on board the Dumb Lighter and that he could get access to.

10.  The Magistrate also considered the submission advanced for both Appellants, that firstly, the rubber hose seized was dry and did not contain liquid when it was produced in court, and secondly, photos 33 to 35 of Exhibit P2 showed that the valve in the rubber hose was in the closed position, then either PW2 or PW3 was not truthful when they testified that they saw liquid in the rubber hose or that the exhibit seized had been tampered with.  However, the Magistrate did not accept this submission because:

(a) it is admitted that the photos in Exhibit 2 were taken over three hours after the Dumb Lighter and Tugboat were boarded by PW2 and PW3 for investigation;

(b) there is no evidence that the valve in the rubber hose was in the closed position when PW2 and PW3 boarded the vessel for investigation; and

(c) there is no evidence as to how the rubber hose was handled and came to be seized. 

11.  The Magistrate found all prosecution witnesses honest and reliable and their evidence credible and reliable.  The findings were that:

(a) A1 was on the 3/F of the working platform of the Dumb Lighter;

(b) At that time, there was a rubber hose connecting the fuel tank of the Dumb Lighter and Tugboat;

(c) There were some liquid flowing in the rubber hose in the direction away from the fuel tank of the Dumb Lighter; and

(d) A2 was the captain on board the Tugboat at that time.

12.  The Magistrate therefore found the only irresistible inference was that both Appellants were stealing diesel fuel on the Dumb Lighter at the material time, and both Appellants were convicted accordingly.

Appeal Grounds

13.  Mr Philip Wong acting for both Appellants advanced the following grounds against conviction,

14.  Firstly, while accepting the prosecution case that both PW2 and PW3 had, at the material time, witnessed the stealing of the diesel, in that they saw liquid flowing in the rubber hose in the direction from the fuel tank of the Dumb Lighter, and the Magistrate also accepted the evidence from the photos as exhibited, marked P2 as adduced by the prosecution via the Admitted Facts which showed that the rubber hose in question was dry and its valve was in the closed position in the said photos, but the Magistrate did not accept the above two pieces of prosecution evidence as inconsistent with, or contradictory to each other, and that he ruled that it was a defence burden to clarify them, and thus he had invited the defence to recall PW2 and PW3 for cross-examination, and to which the defence declined.

15.  Mr Wong further submitted that while police investigated the case and later on taking photos of the exhibit, including the hose and its valve in question, they would not have risked perverting the course of justice by tampering the exhibit in question.  Mr Wong also submitted that the relevant photos marked as Exhibit P2 were adduced via Admitted Facts, marked as P1, and its paragraph 9 also stated that the chain and the accuracy of P2 (1-39) are not challenged.   It therefore triggered the presumption of regularity as against any suggestion, without evidence that there had been tampering of the exhibits by police before they were photographed.

16.  Therefore, the inconsistency and contradiction arising from the later condition of exhibits with that of the testimony of both PW2 and PW3 would at least cast a reasonable doubt as to the veracity of the evidence of both witnesses. 

17.  Secondly, in rejecting the prosecution submissions that A1’s response or explanation to the police under caution as to why the aforesaid Admitted Facts were a lie probative of guilt,  Mr Wong submitted that the Magistrate also found that the said explanation was hardly plausible, as well as that the said explanation could be indicative of guilt.  Mr Wong therefore submitted that it was not inconceivable that A1 might have boarded the Dumb Lighter to look for medicine in the absence of contrary evidence, and that such an explanation was not inconsistent with an intention to steal as prosecution alleged, and thus it is wrong in law and against the specimen direction to a jury trial to view A1’s lie as capable of indicative of guilt. 

Discussion

18.  As stated by the Respondent, for the first ground to succeed, there must be sufficient evidence that the gate valve was closed or may be closed when the police boarded the Dumb Lighter, and/or that no one had emptied the rubber hose, either intentionally or accidentally before the rubber hose was put in a tamper-proof bag, but there is simply no such direct evidence at all, or any sufficient evidential basis that would allow the trial Magistrate to draw such an inference. 

19.  Further, the photograph of the gate valve being in a closed position was only taken three hours after the police had boarded the Dumb Lighter for investigation, but the photograph does not show whether the gate valve was open or not at the time when the police first boarded the Dumb Lighter.

20.  Respondent further said that although the Admitted Facts stated that the chain and accuracy of P2 (1-39) are not challenged, it must be referring to the 39 photographs taken at the scene three hours after the police had boarded the Dumb Lighter not being challenged, it cannot be taken to mean that the rubber hose, gate valve and/or the content in the rubber hose, if any, had not been touched upon by anyone in execution of their duties during investigation. 

21.  As to the actual position of the gate valve when the police boarded the Dumb Lighter and how they handled it and came to seize the rubber hose, there is simply no evidence.  That could also be reflected by the exchange between the trial solicitor, Mr Fu, and the court.  See the Appeal Bundle containing the transcript of the trial, at page 111, line B to U:

“COURT: as to what had happened to the rubber hose after the police officers went on board. Maybe a police officer, oh, saw that there was still diesel fuel flowing from the Dumb Lighter, so they wanted to stop the theft of steal, so they closed the valve. I don’t know. No one knows.

MR FU: But there’s...

COURT: I cannot speculate...

MR FU: Yes.

COURT: and, if I cannot speculate, then I can’t come to a -- I can’t find a fact along the line of what you are asking me to in your closing submission.

MR FU: Yes, but, based on the present evidence tendered in court, the gate valve is closed.

COURT: It was…

MR FU: It’s closed.

COURT: Yes.

MR FU: Because, as I remember - if my memory is incorrect, please, remind me - the second witness, PW2, did mention the situation: the gate value’s condition is similar to, so far as I remember, the photograph P2(33), so far as I remember.

COURT: You are saying, according to the evidence of PW2, when he went on board the vessel, he saw that the gate valve is as shown in photograph 33?

MR FU: Yes, but not the third PW,...

COURT: No,…

MR FU: PW3.

COURT: PW3 says he can’t recall.

MR FU: Yes.

COURT: He didn’t pay attention.

MR FU: Yes, I confirm he can’t…

COURT: Yes.”

22.  Appeal bundle page 112, line F to H:

“Mr FU: So, the PW2 finally gave the evidence in court he have no idea the gate valve is closed or opened, so we need to conduct a test in court.”

23.  Appeal bundle page 113, line B to R:

“COURT: He said one inch. And you said what about the other end? Also one inch. So it was established that the diameter of both ends were one inch. Then you asked him whether there’s a gate valve. He said yes. Then you referred him to Exhibit P2, photograph 33, and asked him whether the position of the gate valve that is shown in photograph 33 of Exhibit P2 was, in fact, closed or open position and his answer is, “Based on many” -- “Based on my experience, it was closed if the situation looks like this.” Then… said different gate valves have different design...

MR NG: Yes.

COURT: …and you asked him to confirm the position, whether it was opened or closed.

MR FU: I could not…

COURT: He said he cannot inspect by naked eyes...

MR NG: Yes.

COURT: and that is when we did the…

MR NG: Examination.

COURT: demonstration. But it…

MR FU: That means...

COURT: No, it does not mean that, at the time he saw it on board, it is in that position. When you questioned…

MR FU: Yes.

COURT: It does not mean that. You simply ask him whether it is open or closed this -- in this photograph.

MR FU: Yes, in this photograph.

COURT: Yes, in this photograph, which doesn’t mean anything.”

24.  Appeal bundle page 114, line B to F:

“COURT: …there’s no factual basis, there’s no evidence, as to what had happened to the rubber hose or what the police had done on board in terms of investigaton during those 4½ hours. So how can I say someone must have tampered with it illegally? To put it in loose terms, when there is no evidence to say that the police didn’t conduct investigation of the rubber hose, that’s why I asked you whether you need to consider whether you have , the defence has any application to make.”

25.  And also same page, line T to U:

“MR FU: Your Worship, thank you for your adjournment. My instruction is that both defendants will not recall the police.”

26.  And, lastly, on appeal bundle, page 115, line F to H:

“MR FU: …I did cross-examine both PW1, PW2 and PW3 in connection with the rubber hose, the position of the rubber hose. I allege that the rubber hose is hanging around between the Tugboat and the Dumb Lighter.”

27.  In fact, the very same ground now submitted by Mr Wong had in fact also been put forward and duly considered by the Magistrate.  After due consideration, I also agree with Magistrate’s view in its entirety.  That firstly, when complaining that the rubber hose could not be dry, it must be remembered that it was produced in court after six months.  Respondent also added that the hose was quite long and that any liquid, if left, could well be dribbled off or even evaporated.  Of course, we are not here to speculate, but it is just a common sense consideration.

28.  As to the actual valve position, firstly, we have no direct evidence of its position at the time when police officers went on board the Dumb Lighter and the photos taken three hours later clearly did not mean that it must be the same.  Mr Wong argued that any tampering could amount to perverting, but here we are not talking about destroying or damaging the same.  Similar to a usual drugs case where an exhibit put forward to court is usually not the form when it was found, and rarely a Government Chemist is to be called upon to tell how he did the examination and thereby changing its form.  Likewise, this ground could not be sustained, particularly bearing in mind that the Magistrate had also accepted the evidence of PW2 and PW3 in total, where they had respectively seen some liquid flowing in the rubber hose in the direction away from the fuel tank of the Dumb Lighter and that was connecting to the Tugboat, no doubt the offence was already complete when the police went on board and found Appellants therein the Dumb Lighter and the Tugboat respectively.

29.  To say the least, even if the valve were really in its closed position, simply by connecting the rubber hose from the Dumb Lighter to the Tugboat, and by the very background circumstances, it must be already more than a preparatory act of theft and therefore, alternatively, an attempted theft must have been committed.  However, as said above, I do not find this ground successful or arguable.  This ground must fail. 

30.  As to the second ground complaining that the Magistrate had treated the lie as indication of guilt, that was clearly not what the Magistrate had done.  On the contrary, in paragraph 22(b) of his statement of finding, he said:

“The prosecution invites this court to draw an adverse inference from this verbal under caution. I decline to do so, even if the explanation given by D1 is a blatant lie. As a general principle, that an accused lie, cannot by itself be proof of guilt. It could be at best indicative of guilt but never probative. The fact that D1 may have lied does not assist the prosecution case.”

31.  It can readily be seen that the Magistrate had expressly stated the fact that A1 may have lied does not assist the prosecution case, and he also declined to draw any adverse inference, even if the explanation is a lie.  Therefore, this ground must also fail.

Conclusion

32.  A magistracy appeal is carried out by way of a rehearing on the testimony and evidence before the Magistrate.  See the case of Chou Shih Bin v HKSAR FACC 11/2004.  In respect of the facts of a case, the Appellant tribunal has to recognise that the trial Magistrate does enjoy the advantage of observing and hearing the witness giving evidence and the appellate court cannot rely on the written transcript on paper to determine if a witness is trustworthy and reliabable.  See the case Raymond Chen v HKSAR FACC 1/2010.  The credibility and reliability of any particular witness is solely within the assessment of the Magistrate, however, when the findings of a Magistrate are shown to be unreasonable or illogical or inherently improbable, or the Magistrate has misquoted or omitted or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

33.  As stated above, I do not find the Magistrate had erred in any aspect of his findings and his conclusion is correct.  As said, all the above grounds of appeal advanced must fail.  This appeal is accordingly dismissed.