HKSAR v. CHEUNG SHU SUM AND OTHERS

1997, No.440
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. It is convenient to refer to these Applicants by the numbers that they were given in the court below where they appeared in the same order as they are listed today.

2. On 26th June 1997, following a trial in the District Court before Deputy Judge Line, as he then was, Cheung Shu-sum (D1) was convicted of the theft of a goods vehicle, and Leung Kat-moon (D2) and Ma Chung-keung (D3) were each convicted on charge 2 of second limb dishonest handling of the same vehicle which was a lorry tractor unit. The Applicants now seek leave to appeal against conviction.

3. The prosecution's case was straightforward and brief against all the defendants. A red lorry tractor, valued at about $300,000, was stolen from a car park in Sha Tau Kok. It had been parked there at about 3:30 p.m. on 29th November 1996.

4. D1 was arrested shortly after midnight on 30th November 1996 when police saw him acting suspiciously in the vicinity of the car park. He made oral admissions that implicated him in the theft of a red lorry tractor although, at that stage, the owner was wholly unaware of its disappearance. At approximately 4 o'clock in the morning of 30th November, the theft was formally reported. As a result of the full description being known, the vehicle was located and police began a surveillance operation in the vicinity of it. At about 6:30 p.m. on the same day, a private car was seen twice to pass by slowly before it stopped at the stolen lorry. D2 got out of the front passenger seat with a white plastic bag in his hand. He got inside the cab and put on some white gloves. Meanwhile D3 left the driver's seat of the car and was arrested as he made his way towards the lorry.

5. At the scene, D2 and D3 made oral admissions of involvement in dishonest handling. In written statements at the police station, D2 admitted he believed the tractor to be stolen because D3 had asked him to use thinner to erase the words written on the tractor. D3 admitted helping D2 by driving him to the tractor unit which D2 had told him was stolen. The fingerprints of D1 and D3 were found on the white bag taken by D2 to the cab of the tractor. Inside the bag were numerous items including a container of paint thinner which bore D1's fingerprints.

6. At the trial, D1's written interviews were not admitted on the discretionary ground that a solicitor who had wished to be present had been excluded. In some remarkably eloquent self-made grounds of appeal, D1 complains that the oral replies given to police at the scene of his arrest should not have been admitted into the evidence at his trial, and he relies for this proposition on the judgment given in Thongjai and Another v The Queen (1997) HKLRD 678.

7. As the trial judge said in his Reasons for Verdict, the case against D1 rested on the admissions given at the scene, and he went on to express several reasons for his acceptance of the truth of them. Clearly, if there had been an omission on the part of the trial judge to consider the voluntariness of those oral admissions, assuming that that was an issue to be decided, this would have been fundamental. With this in mind, we have looked with care at the circumstances in which the oral admissions were alleged at trial to have been given. There was no suggestion made of any police misconduct at the stage when the words were allegedly spoken.

8. The whole issue at trial on this aspect was whether or not the words were ever spoken. The judge found that they were, and he gave cogent reasons for his finding. In those circumstances, no need ever arose to hold a voir dire. In any event, although voluntariness had never been an issue, the judge did nevertheless consider it. He expressed himself as being sure that the answers had voluntarily been given and that it was fair to admit the evidence. There is no substance in that ground of appeal.

9. A second ground reflects upon the competence of D1's counsel at trial. It is quite clear from letters that he wished to show us during the course of this hearing that he has had a number of complaints to make about his counsel. His particular complaint relates to the fact that certain police witnesses were not called to give evidence. He suggests that he told his counsel that he wished them to be called.

10. It is abundantly apparent to us that the case for D1 was fully advanced by his counsel in cross-examination of the police witnesses who were called. Counsel who appeared for the prosecution in the trial, and who is now junior counsel for the Respondent, undertook to call a number of other witnesses at the request of the defence, and did so.

11. D1 also gave evidence in the trial. He was not believed. No application, so far as we can see, was ever made for further witnesses to be called by the prosecution. Indeed, this is hardly surprising because, if another witness could have been called, it would have been the driver of a police vehicle and it seems that he could not materially have added to the picture which had been disclosed. There is nothing in that ground of appeal.

12. The third of the grounds which are put before this court by D1 relates to what he believes to have been an adverse inference drawn by the judge on the subject of fingerprints found on the white bag in the stolen tractor unit. It was of course possible for D1's prints to have got onto the bag and also the container of thinner quite innocently. The judge obviously recognized this because he did not, contrary to D1's complaint, rely upon this evidence to convict. This ground also fails.

13. We are satisfied that there is nothing in any of the grounds raised by D1 which would cause us to interfere with the conviction for theft. The judge gave careful consideration to all the important points which had been raised on his behalf, and the judgment that was given was fair and balanced.

14. Mr. Lawrence Lok, S.C. has put before us three main grounds of appeal on behalf of D2. To a large extent, he relies upon the written submissions which he has been good enough to tender to the court well in advance of this hearing.

15. Firstly, he submits that the judge erred in failing to resolve the issue of voluntariness in relation to the oral admission made by D2 on his arrest. Allegations of misconduct had been levelled at the police who heard the oral admissions, and who reduced those admissions into writing. PW7 was present with PW4 when those admissions were allegedly made. Both officers faced allegations of misconduct.

16. In this situation, unlike the example of D1, whilst the so-called "verbals" were disputed at trial, there was a need, following the judgment in Thongjai, to hold a voir dire to decide if the admissions passed the test of voluntariness. As Mr. Bruce, S.C., on behalf of the Respondent, very properly concedes the failure to do so was a material irregularity. Having said this, we have carefully considered whether any injustice has occurred as a result of that irregularity.

17. The trial judge had to consider the admissibility of D2's written record of interview in the light of allegations of serious misconduct on the part of police both at the scene of the arrest and at the police station. The judge rejected these allegations when he found that PW4, who was involved in making the post-record, was to be believed and that D2 was not to be believed. It seems to us clear beyond any doubt that, having reached this conclusion, the judge must inevitably have reached exactly the same conclusion in relation to the oral admissions. Any other result would have been utterly contradictory of the judge's findings which appeared to have been made after the closest scrutiny of the evidence.

18. The remaining grounds advanced on D2's behalf are concerned with what are submitted to be the judge's failure to:

(1) give full and proper weight to an evidential discrepancy between PW4 and PW7 as to what D2 is supposed to have said after his arrest; and

(2) to give effect to the evidence of DW2 which must have cast a doubt on the lighting conditions leading to the conclusion that it would have been too dark for the police to have seen the Applicant putting on a pair of gloves.

19. So far as the first of these matters is concerned, the judge found that the conflict was "readily explicable". He was fully entitled in our view to come to that conclusion for the reasons he gave. Equally, on the second point, the judge was able to justify for good reasons his rejection of DW2's evidence.

20. There is no substance in these submissions and we have no hesitation in rejecting them. They were based upon evidence that the judge had understood and taken into account, and it not for us now to re-try those issues.

21. Turning, lastly, to the application made on behalf of D3, Mr. Buchanan has advanced what are effectively two grounds of appeal. Although they are put this morning on the basis that they are three separate grounds, two of them can be dealt with conveniently together. He has relied to a large extent upon the written submissions which he has provided to us.

22. Firstly, he submits that D3's interview record (P21) should not have been admitted into evidence because either the prosecution had failed to prove that it was voluntarily made or, alternatively, it should have been excluded by the exercise of judicial discretion in the light of evidence from D3 that he was prevented from having access to anyone from outside including a lawyer.

23. Mr. Buchanan has submitted, secondly, that even accepting the correct admission of this evidence, the judge could not have concluded from its contents, and the evidence given by PW8 about what happened when he took the statement, that D3's actions were such as to prove guilt to the required standard on the charge which he faced.

24. Mr. Buchanan has set out at length, so far as the first matter is concerned, a very large number of evidential considerations which, he submits, the judge should have taken into account or, as the case may be, should not have given such weight, when he arrived at the conclusion that P21 was reliable evidence. In effect, Mr. Buchanan is asking us to re-try issues that were ventilated in the court below. It is no part of this court's function to carry out this exercise where it is clear that the trial judge was fully conversant with all of the important points that were raised in this regard. They had been made by Mr. Buchanan in the court below, and it is quite clear that the judge had fully understood what was being argued. We are not impressed by the argument Mr. Buchanan has advanced that there were further police officers who might have been called to rebut the allegations which defence were making in the trial. These were not officers who were known by name or by number, and it was an unrealistic proposition to expect officers to be tendered in the circumstances of this case.

25. D3's allegations were simply not believed. This is so for solid and sensible reasons that are given by the judge. We can find no justification whatever to interfere with the decision to admit it.

26. As to Mr. Buchanan's second submission, it was, he reminds us, D3's case that when he drove D2 in his car, he did so as a favour in order to take D2 to a garage. The trial judge summarized in his Reasons for Verdict the exact position when he said this:

"D3 gave evidence on the general issue. He claimed that he was merely doing D2 a favour in driving him to a garage, that he did not know or inquire the purpose of the journey or the contents of the bag which was picked up from D1's place of work, that he did not know where they were going but just drove to D2's order, that the movements of the car near the tractor were explicable in their not being sure of the destination, and he did not know or believe the tractor was stolen.

Obviously this evidence was directly at odds with the contents of his interview Exh.21. Since I was sure that what he said in the interview was said voluntarily, the admissions against his interest carried weight in the usual way that statements against interest made by adult man of sound mind habitually do. My perception is that D3 did not realize that he was admitting to a crime and thought that he told a story that was sufficiently credible in the circumstances which sufficiently distanced him from any dangerous involvement.

I was also sure that the record made by PW8 was an accurate one. It was read over to D3 and he signed it. I have dealt with PW8's slipshod answer to the question that it may have been possible that D3 said that he did not know the vehicle was stolen. It was given without the record being in front of him, as was an affirmative answer to the suggestion that D3 said he drove to a garage. That answer was explicable as D3 had said in the interview that the stolen vehicle was parked outside the garage. The sense of what was being said is amply apparent and properly recorded. That part of the interview puts beyond doubt that this defendant was saying that he was told the vehicle was stolen, and he therefore declined to help in its modification, and that he only drove D2 to it.

I rejected the evidence of D3. It could not live with the interview. Further, his account of what passed between himself and D2 in the car after the alleged phone call asking that the thinner be dropped off was bald and unconvincing. He lacked the capacity to invent convincing natural detail and demonstrated that he was not recalling events which had truly occurred. I did not believe him.

I was sure, based upon what he said in the interview, that D3 knew the vehicle was stolen, that he drove D2 to it with that knowledge, that he knew D2 proposed to modify the stolen goods, that he thereby assisted D2 in the retention and disposal of the stolen goods. I was sure that his action of driving D2 to the stolen vehicle was an intentional and deliberate one which helped D2 in his dishonest handling of the vehicle, and that this both benefited D2 and his accomplice. I was sure that it was dishonest of D3 to act as he did with the knowledge he had and that he knew it. No one argued it would be otherwise if it were proved he had the requisite knowledge. To help another man in his dishonesty is in itself dishonest. Being sure of these matters, he was proved guilty as charged."

27. Undoubtedly there had been shortcomings in the evidence of the statement taker PW8. These were recognized and fully canvassed at trial, both in the passages which have been read out and earlier in the Reasons for Verdict where the trial judge had set out the contradictions and inconsistencies to be found in PW8's evidence. The judge concluded that PW8 was "a witness of truth" albeit he had given answers that were slipshod in places.

28. Mr. Buchanan now invites us to say that the judge erred in his assessment of this witness. He has put before us nothing which was not previously considered by the learned judge who was demonstrably scrupulous in his consideration of this aspect of the evidence. There is no substance in this ground.

29. Accordingly, for the reasons we have given, the applications of D1 and D3 are dismissed. In the case of D2, where a material irregularity is shown to have occurred, we shall grant leave but treating this hearing as the appeal and applying the proviso to section 83(1) of the Criminal Procedure Ordinance, for the reasons already given, we dismiss the appeal.

30. D3 also seeks leave to appeal against the sentence of nine months' imprisonment which was imposed upon him for his role in this dishonest venture. D1 and D2 received three years and two years eight months respectively. They have made no application in relation to their sentences. The distinction which is made with this Applicant was set out by the trial judge at p.20 in the appeal bundle where he said this:

"The culpability and participation of D3 can be distinguished. His role in dropping D2 off at the stolen tractor whilst criminal was not an integral part of the enterprise. D2 could have got there in a taxi. Nonetheless, he assisted in what was a serious crime. I have no doubt that D3 must go to prison, the question is for how long. The matter is too serious for me to suspend the sentence or to make a probation order as I was invited to do. I disregard a minor gambling conviction and treat him as being of good character. He has a good background report. The confession which convicted D3 contained a claim that he had declined greater participation in the handling. I have my doubts as to the veracity of such self-serving parts of what he said but, at the end of the day, I feel it would be unjust to give such assertions which accompanied the admissions no weight at all. It is thus that I sentence on the basis of a narrow involvement with greater involvement consciously declined. The prosecution could point to no material to justify proceeding on any wider basis. From the adoption of the narrow basis it would appear that D3 acted without proven reward. I confess that I do not find D3's an easy sentence. His lesser participation requires a significant reduction from the starting points taken in respect of his co-accused.

In the peculiar circumstances of this case, I will take a starting point of a year as I consider this a term of appropriate length for D3's minor involvement in this serious crime. I will reduce that by three months to reflect his good character."

31. Mr. Buchanan's submissions to this court appeared to be more or less the same as his mitigation before Deputy Judge Line. It is clear that the judge took into account all of the material aspects of that mitigation. We feel unable to accede to Mr. Buchanan's submission that the sentence was too severe. This was, as the judge rightly observed, a case which called for an immediate sentence of imprisonment. The sentence was entirely appropriate for a crime as serious as this.

32. This application, in those circumstances, must be dismissed.