HKSAR v. LEE CHUN KIT

CACC 540/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 540 OF 201

(ON APPEAL FROM DCCC NO. 820 OF 2011)

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court) :

1. The applicant, who was the second defendant at trial, seeks leave to appeal against his conviction on 21 November 2011 after trial by Deputy District Court Judge Woodcock, as she was then, offive charges of theft, three of handling stolen goods, one of dangerous driving and one of doing an act tending and intending to pervert the course of public justice. The applicant was acquitted by the judge of four other charges of theft.

THE TRIAL

The prosecution case

2. The prosecution case was that at about 5:30 a.m. on the morning of 27 May 2010 the applicant together with Chui Ka Ho, his co-accused at trial, was in the course of stealing metal bars from a construction site in Tai Po (charge 18) when they were interrupted by the arrival of police officers, who were responding to a report of theft.  The applicant and his co-accused escaped in a light goods vehicle, of which the applicant was the driver.  The vehicle was driven dangerously (charge 19), colliding with a police vehicle, driving through red lights and finally colliding with a motorcyclist as it was pursued by the police.  The light goods vehicle was found abandoned at about 6:00 a.m. in Tai Wai.  Inside the driver’s cab the police recovered a mobile telephone with the number 6833 6835.  The vehicle was found to have been stolen (charge 17) and to be bearing different number plates, which were themselves stolen (charge 16).  Two of four tyres (charge 15) found secured by a chain and padlock in the vehicle were stolen.

3. At about noon on 27 May 2010 the applicant made a report of the loss of his mobile telephone at Tai Po Police Station, informing the police that it had been lost at Kwong Fuk Road in Tai Po at about 5:30 a.m. that day (charge 20).

4. It was the prosecution case that the mobile telephone found in the driver’s cab of the light goods vehicle was used by the applicant.  There was no dispute that the applicant’s father was the subscriber for that telephone number of the mobile telephone, which he had provided to his son.  An examination of the image file of the memory card in the mobile telephone revealed over 100 undamaged photo files, which were adduced into evidence by way of admitted facts.  The telephone call records of CSL, the service provider of that mobile telephone, for the period 26 to 28 May 2010 were adduced into evidence by other admitted facts.  It was an admitted fact that there was contact between that mobile phone and a mobile phone registered in the name of his co-accused’s mother three times in the early hours of the morning of 27 May 2010.

5. It was an admitted fact (appeal bundle, page 26; paragraphs 30-2) that on 24 June 2010 the police seized a padlock key inside the video games room of the applicant’s home, which operated the padlock used on the iron chain to secure four tyres found in the abandoned light goods vehicle on 27 May 2010, two of which were found to have been stolen in the theft the subject of charge 15.

Defence case

6. The applicant did not give or call evidence in the defence case, save that the defence produced a set of admitted facts to the effect that, in respect of the charges on which the applicant was convicted, there was no forensic evidence of his contacts with the stolen vehicles.  It was the defence case that the applicant was not only not the driver of the light goods vehicle that was used as a getaway vehicle to escape from the scene of the theft, the subject of charge 18, but also he was in no way involved with those offences or any of the other offences with which he was charged.

Grounds of appeal against conviction

Ground 1

7. Mr Philip Wong, on behalf of the applicant, submitted that the judge erred in relying on documentary evidence as evidence of the facts in respect of data contained in the memory card of the mobile telephone with the number 6833 6835.  Firstly, he took issue with the judge’s reliance on photographs contained in the memory card, notwithstanding that the digital image files stored in the memory card and photographs produced from that memory card had been adduced into evidence by way of admitted facts, pursuant to section 65 C of the Criminal Procedure Ordinance, Cap. 221 (appeal bundle, page 38-paragraph 9). Similarly, he submitted that the judge erred in relying on the witness statement of PC 4098 (exhibit P 22 and P 22A) adduced into evidence pursuant to section 65 B of the Criminal Procedure Ordinance.  In that statement, PC 4098 said that he had examined the image files found on the memory card from that telephone and, having found that there were 100 undamaged files, burnt them to a CD-R disc from which hardcopy photographs had been made and adduced into evidence.

8. It was submitted that the evidence did not satisfy the prerequisite conditions stipulated in section 22 A(1)(a) of the Evidence Ordinance, Cap. 8, namely, that direct oral evidence of the facts stated therein would be admissible.  Only the applicant could do that and he was not a competent witness at the behest of the prosecution at his own trial.  Section 22(1)(b) and (2) of the Ordinance required proof that the mobile phone was working properly at the material time.  PC 4098 did not make that assertion.

9. Further, although it was an admitted fact that the name Ka Ho with the related telephone number 6750 2966, appeared in the memory card and the name Ah Yin appeared in the memory card of the telephone with the number 6750 2966 the admitted fact did not satisfy those prerequisite conditions.  Only the applicant’s co-accused could give direct oral evidence of the facts stated therein and he was not a competent witness at the behest of the prosecution at his trial.

10. Finally, it was submitted that the records (exhibit P4) of telephone calls made on the telephone with the number 6750 2966, albeit adduced into evidence by way of an admitted fact, did not satisfy those prerequisite conditions and could not be used by the judge, as she did, as evidence of the facts stated therein.

Ground 2 : attempting to pervert the course of public justice

11. By ground 2 it was submitted that the judge had erred in relying on the inadmissible facts stated in the documentary evidence, as asserted in ground 1, as part of the basis for finding that on 27 May 2010 the applicant had left the mobile phone with the number 6756 2966 in the driver’s cab of a goods vehicle displaying the vehicle index number MW 7994 at Chik Tai Lane in Tai Wai.  Further, in respect of the applicant’s report to the police that he had lost the telephone that day at Kwong Fuk Road in Tai Po the judge failed to set out a reasoned analysis of how the applicant’s acts could have made the police believe what he reported them to be the truth and thus have had a tendency to pervert the course of the administration of justice.

A consideration of the submissions

12. As the judge noted, at an early stage in her reasons for verdict, “Much of the prosecution’s case was agreed and admitted by the 2^nd defendant and exhibited as P1.”  That was a reference to a six page document entitled ‘Admitted Facts’, which stated that pursuant to section 65 C of the Criminal Procedure Ordinance :

“...the following facts had been agreed by the prosecution and the D2.”

13. Paragraphs 7 and 7A of the document provided :

“ 7. The call records of phone no. 6833 6835 between the period 26 May to 28 May 2010 were agreed and produced as P4. Amongst the calls, 6833 6835 and 6750 2966 had been in contact thrice between 01:33 and 04:02 hours on 27 May 2010.”

“ 7A. A name ‘Ka Ho’ with telephone number 6750 2966 was stored both in the phone book and some card of 6833 6835 where the name ‘Ah Ying’ with the telephone no. 6833 6835 was stored in the phone book are 6750 2966.”

14. Paragraph 8 produced various albums photographs with admissions as to the scenes depicted.  It included an exhibit described as ‘P5 G annex (1) and (2), which was described as :

“ Image files and photographs from memory card belonging to mobile telephone no. 6833 6835.”

15. Paragraphs 9 and 10 stated :

“ Digital image files stored in the memory card retrieved from the phone were examined and produced as a CD disc (‘the Disc’ )…..by.. PC 4098 and images with their details were depicted in photo album P5 section G annex (1) and (2). Chan Kin Kwong, a special photographer was responsible for printing the photographs on the Disc and produced in P5 photo album section G.” [Italics added.]

“Their details” is clearly a reference to the information provided in the annexures to P5 section G, namely :

“ Name of File; Description of File; Path; Size of File; Shooting Date; Shooting Tool; and Function.”

Under the title “Shooting Date”, information was detailed as to date in numerical form in terms of year, month and date.  Time was provided by way of a 12 hour clock, qualified by reference to a.m. and p.m.

16. It is clear that the trial was conducted by the parties and the judge on the basis that the data contained in the memory card of the mobile telephone with the number 6833 6835 had been adduced into evidence by way of admitted facts without any caveat or restriction whatsoever.  To pose the rhetorical question : “What was the point of the parties making an admitted fact as to the ‘details’ of the digital images?”, readily provides its own answer.  Clearly, it was to make that information available as evidence of the facts.

17. Accordingly, for example, as the judge noted, the applicant’s father (appeal bundle, page 54; paragraph 44) “...was taken through photographs taken from the mobile phone P2 found in the getaway LGV”.  Of his evidence, she said :

“ In album P5 G he points out page 17 are photographs of his son’s own vehicle NF 770. Page 17 shows a photograph of his niece’s daughter. Pages 27 to 32 photographs of the 2^nd defendant’s toys kept in the TV room. Pages 32 to 35 are photographs of the 2^nd defendant’s PSP games.”

18. There is no suggestion that any objection was taken on behalf of the applicant to that evidence being adduced from his father.  Indeed, in the written closing submission by counsel for the applicant at trial, to which the judge adverted in her reasons for verdict (appeal bundle, page 63; paragraph 75), it was accepted that the mobile phone with the number 6833 6835 :

“…contained images of toys/baby associated with D2;”

19. Clearly, the judge approached her analysis of the evidence of data obtained from the mobile telephone with the number 6833 6835 on the same basis as the parties, namely that it was available for all purposes and in particular as to the facts.  Immediately after the passage quoted earlier, as to the identification by the applicant’s father of various photographs, the judge addressed the issue of the information as to the date and time on which the photographs were taken, noting that (appeal bundle, page 54-paragraph 45) :

“ ...photographs of the getaway LGV with stolen plates were taken on 23 March 2010 at 6:49.”

Later, she noted the significance of the date as being (appeal bundle, page 65; paragraph 82) :

“ …there were four photographs in the same getaway vehicle taken only three days after it was stolen. By then it had been painted and had different plates put on it. These photos were taken 23 March.”

20. We are satisfied that by the admitted facts the parties not only intended to adduce into evidence the data obtained from the memory card of the mobile telephone with the number 6833 6835 for all purposes but also that they succeeded in doing so.  Mr Philip Wong’s highly inventive technical arguments all founder on that obstacle.  Of course, it was open to the parties to admit those facts and they did.  There is no merit in this ground of appeal.

Ground 2

21. The applicant’s report of the loss of his mobile telephone and the police response were other matters that were the subject of admitted facts.  Paragraph 11 of the admitted (exhibit P 1) state (appeal bundle, page 39) :

“ D2 made a report to PW 29, PC 7698 at 12:00 hours on 27 May 2010 that D2 had lost a Sony Ericsson K 700, brown in colour, on 05:30 hours on the same day at Kwong Fuk Road, Tai Po. PW 29 conducted FIC’s matching with negative results, PW 29 then issued a list (loss?) memo to D2. A police case background report was created (TP RN 1001 5969).”

22. Clearly, as was to be expected, the report of the loss of a mobile telephone was apparently treated by the police in the ordinary way that the police respond to a report of the loss of an item of valuable property.  The fact of the report of the loss was reflected in a memo given to the applicant and a police report created.  There was no evidence to suggest that at the time the loss was reported by the applicant the police officers treated it other than a credible report of loss.  Why would they do otherwise?

23. Of course, as the judge noted, the significance of the report by the applicant was that he stipulated the time of the loss of the propertyat Kwong Fuk Road, Tai Po at the very time at which the theft the subject of charge 18 occurred at a different place.  The judge determined (appeal bundle, page 64 P-T; paragraph 81) :

“ I do believe the fact that the 2^nd defendant made a police report that he lost his mobile in Tai Po at 5:30 a.m., that is at the same time the theft was taking place, is damning. I am sure he made his report to the police because he was very keen to distance himself from the phone that he had left inside the getaway car. He knew the phone would be traced back to him, so he made a false report it was lost.”

24. Subsequently, in her reasons for verdict the judge found (appeal bundle, pages 68 K-69 A; paragraphs 92 and 93) :

“ The 2^nd defendant had physically gone to the police station and made an official report that his mobile phone, a Sony Ericsson K 700, brown in colour, was lost at 5:30 a.m. in Kwong Fuk Road in Tai Po. He received an official record of the report he made. As I said, I am sure he made the false allegation knowing his mobile would be seized from the LGV and traced back to him. If he said it was lost before it was seized he could deny any involvement in the theft and the police car chase. He was trying to defeat, frustrate or hinder the police investigation into the crimes he committed. He was trying to defeat the ends of justice, which I find is doing an act which has a tendency and is intended to pervert the administration of justice.

    If what he reported to the police was accepted as true, he would evade a prosecution.  That was his intention, I find.  If he achieved what he intended to achieve the course of justice would have been perverted.”  [Italics added.]

25. Clearly, the judge analysed closely the act of the applicant in reporting falsely the circumstances of the loss of his mobile telephone to the police and found in terms that it had a tendency and was intended to pervert the administration of justice.  There is no merit whatsoever in this ground of appeal against conviction.

Conclusion

26. For the reasons set out above, we are satisfied that there is no merit in the grounds of appeal against conviction.  Accordingly, the application for leave to appeal against conviction is dismissed.