HKSAR v. JASBIR SINGH

HCMA518/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.518 OF 2005

(ON APPEAL FROM KCCC 14037 OF 2004)

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J U D G M E N T

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1. The appellant appeals against his conviction on 15 February 2005 by Mr McNair of a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210.  The charge alleged that the appellant had stolen 51 Samsung mobile telephones from Sunstrike International Ltd at an address in Mirador Mansion, Nathan Road in Kowloon on 30 August 2004.  In consequence of the conviction, Mr McNair imposed a sentence of 12 months imprisonment on the appellant.

The prosecution case

2. It was not in dispute at the trial that the appellant was employed by Sunstrike International Ltd as a storekeeper in the company godown.  Mr Nirmal Jot Singh (PW1), the owner of the company, testified that the appellant’s duties were to monitor the arrival and dispatch of the company’s goods.  In respect of the latter, the appellant was to arrange packaging of goods and then cause delivery of the goods to the delivery boy, freight forwarders or truckers.  It was no part of the appellant’s duties to make deliveries himself.  Mr Singh (PW1) testified that on the night of 30 August 2004 he became aware that there was a shortfall in stock in the godown of 51 mobile telephones.  As a result, he viewed a videotape taken from a CCTV camera located in the premises.  It is not in dispute that the video recording depicts the appellant removing a box from the godown premises and not returning to the premises for over an hour on 30 August 2004.

3. Having viewed the videotape, Mr Singh testified that he held a meeting with the appellant in his office on 6 September 2004.  It is the prosecution case that at this meeting, after having viewed the videotape himself, the appellant made an oral admission to Mr Singh of having stolen the goods in question.  In support of Mr Singh’s testimony to that effect, the prosecution called two other employees of the company Salabjit Kaur (PW2) and Joshi Sunhil (PW3) who had witnessed, so they said, the conversation between Mr Singh and the appellant.

4. At the outset counsel for the appellant informed the court that not only was it denied on behalf of the appellant that the oral admission was made but also it was contended that an inducement was offered to the appellant by Mr Singh at the outset of the conversation, namely that if the appellant repaid the money then the matter would be “cancelled” and the police would not be called.  At that stage, the court stated that it would deal with that issue by the “alternative” procedure.  The manner in which this issue was resolved lies at the heart of the appellant’s appeal against conviction.

The defence case

5. The defendant testified on his own behalf in the trial.  He did so after the magistrate ruled there was a case to answer.  He testified that he had not stolen the goods the subject of the charge nor had he made the oral admission of the theft as testified to by the prosecution witnesses.  The appellant testified that, as is depicted in the videotape, on 30 August 2004 he had taken a box from the company premises but that he had done so on the instructions of his boss, handing them over to two persons he described as Ravi and Pitu.  He was absent from the premises for 10 minutes when he handed the box over to those persons.

6. Of the meeting on 6 September 2004, the appellant testified that no one else was present in the room other than Mr Singh.  The door was closed.  He testified that Mr Singh had said to him :

“I have got this TV; I will see – I will see this TV and I will frame you up, and I will cancel your visa … Otherwise you pay me $150,000.”

Later, the appellant testified that having given him the number of a bank account Mr Singh said to him :

“You pay deposit money into this account, otherwise I have inspector in Tsim Sha Tsui Police Station, and I have that inspector in Tsim Sha Tsui, and I will call him and get you arrested.”

7. In cross-examination of the three prosecution witnesses, the defence case was put in respect of the alleged conversation between the appellant and Mr Singh on 6 September 2004.  In particular, it was suggested to Mr Singh that he had told the appellant that if the appellant paid Mr Singh $15,000 (sic) he would forego the matter and not report to the police (appeal bundle page 83E).  Mr Singh denied that the suggestion came from him responding :

“He told me he will pay me the full amount for 51 pieces, which is around 119-something.  And he took the account number and after that I never saw him…”  (appeal bundle page 83F)

Of the same issue later Mr Singh testified :

“Q.    If you recover the money, you would not report that to the police, right?

A.      That’s what I agreed with him, you know.

Q.      I put to you that it is your suggestion only.

A.      No.  When I talked to him he told me not to call the police.  He will pay me back, which I agreed.”  (appeal bundle page 84J-L)

Statement of Findings

8. In his Statement of Findings the magistrate adverted to the history of the objection to admissibility of the alleged oral statement of the appellant to Mr Singh (appeal bundle page 8, paragraph 4) :

“Altho’ initially the matter of the contested admission was agreed to be dealt with by the alternative procedure it was, in the end, dealt with as a question of fact, voluntariness or inducement not being an issue.”

9. Of his assessment of the credibility and reliability of the prosecution witnesses the magistrate said at paragraph 7 :

“I found PW1 to have been a strong, reliable witness of truth and I accepted his evidence.  PW’s 2 & 3 were also honest witnesses however they were minor participants in the events; PW1 owned Sunstrike and they were his phones.  To the extent that PW2 & 3’s evidence was inconsistent with that of PW1, I accepted that of PW1; any inconsistencies were not material nor did they impugn credibility.  PW1 had good reason to remember the events in questions; he was cross-examined at length and answered all questions in a straightforward manner and, as the trier of fact, he impressed me as a compelling witness of truth.”

10. Of the appellant, the magistrate stated that he found him to be :

“… an unreliable and dissembling witness…”

He stated that he gave no weight to his testimony.

11. Later, in his “Findings of Fact” the magistrate returned to a consideration of the evidence in relation to the meeting between the appellant and Mr Singh, at which the CCTV tape had been played to the appellant, and the subsequent conversation between them.  The magistrate found (appeal bundle page 10, paragraph 11) :

“PW1 played the CCTV tape for the defendant and asked him why he had stolen goods from his office.  The defendant replied ‘sorry’.  The defendant raised the topic of not calling the police if he returned the goods.  He then admitted he had sold the phones but would return the money.  He cried and asked for the company bank account particulars to facilitate repayment.  These were given him by the company accountant and he left, never to be seen or heard from again by PW1 until trial.”

12. Significantly, notwithstanding the repeated assertions of counsel for the appellant that voluntariness was not in issue, nevertheless the magistrate went on to make a specific finding in respect of the admissibility of the oral admission by the appellant to Mr Singh (appeal bundle page 10, paragraph 11) :

“There was no inducement or threat made and no reason to exclude the statements made to PW1.”

13. In finding the appellant guilty the magistrate made it clear in his Statement of Findings that he did so on the basis of inferences to be drawn from the circumstantial evidence and having given full weight to the admission of the appellant to PW1 of having stolen the goods (appeal bundle page 11, paragraph 13) :

“There was only one inference to be taken from this circumstantial evidence, namely that the defendant removed the phones from the godown.  He admitted stealing the goods to PW1 on 6 September 2004.  I gave full weight to this admission.”

Grounds of appeal against conviction

14. In the grounds of appeal against conviction it is asserted on behalf of the appellant that the conviction is unsafe and unsatisfactory having regard to the fact that the case against the appellant :

“… to a large extent depended on an alleged admission to his employer, Nirmal Singh, PW1.  The defence case at trial was that the admission was not made and that at the time of the alleged admission PW1 induced the appellant to admit.

Even though the issue of voluntariness was raised during the trial no inquiry was held to decide whether the admission was made voluntarily.

In those circumstances there has been a material irregularity in the conduct of the trial and as a result the conviction is unsafe or unsatisfactory.”

15. Mr Marray, for the appellant, points to the fact that, prior to the commencement of evidence in the trial, counsel for the appellant informed the court that there was a challenge to the admissibility of the alleged oral statement of the appellant on the basis of voluntariness : that Mr Singh was a person in authority and there had been impropriety (appeal bundle page 53O-Q).  At the end of the evidence-in-chief of Mr Singh counsel for the appellant reiterated those objections (appeal bundle page 62H-J) :

“The ground is that — well, basically we denied making any admissions to PW1.  And, also it is PW1 to offer to — to offer not to call the police.  The matter will be cancelled if defendant repaid the money.  All along defendant denies stealing anything.”

Counsel identified the promise not to call the police as the inducement.  In the result, the judge stated that he would deal with this special issue by the alternative procedure, noting that the grounds were (appeal bundle page 63D-F) :

“(1) any inculpatory admissions are denied;

 (2) that any admissions that were made, which is denied, were made under inducement that PW1 would not complain to the police if the matter could bedealt with….”

16. Of the evidence of the three witnesses called by the prosecution, Mr Marray accepts that Mr Singh (PW1) denied the suggestion put to him in cross-examination that he had raised with the appellant the question of not calling the police if the appellant repaid the value of goods stolen (appeal bundle page 84K).  However, it is submitted that in the course of their evidence the other two prosecution witnesses did testify that that suggestion was made by Mr Singh to the appellant.

17. Mr Marray points to the cross-examination of Miss Kaur (PW2), of what it was suggested Mr Singh had said to the appellant (appeal bundle page 98H-J) :

“Q.   … he said to the defendant, ‘You better pay me the — well, you return me the money and I will forego the matter.’  Is that said by your boss?

A.     Yes, he do like this only.  Yes.

Q.    Yes.

A.    ‘I can forgive you if you admit it and just return back my money.’  Yes.”

18. Of the evidence of Mr Sunhil (PW3), Mr Marray points out that when asked if Mr Singh had accused the appellant of stealing and said that he would fire him, the witness said (appeal bundle page 111D):

“There’s no talking about firing because, you know, you see already there is no talking about fire.  But just boss ask him, ‘Okay, you give me my money.  I will not call the police.  You give me my money.  Okay.  Finish.’” 

19. Mr Marray accepts that at the end the prosecution case counsel for the appellant confirmed to the court the statement by counsel for the prosecution that the defence had now changed its position in respect of the “voir dire”.  In answer to the question of the court, as to whether or not the defence now invited the court to reconsider proceeding under the alternative procedure, counsel for the appellant said :

“Yes, yes ... I will not insist on the voir dire…”

In those circumstances, the prosecution closed its case and the magistrate ruled there was a case to answer (appeal bundle page 112K-Q).

20. Mr Marray submits that, notwithstanding the statement of defence counsel to the court, in light of the evidence adduced in cross-examination of the prosecution witnesses, it was nevertheless incumbent on the magistrate to continue to conduct an inquiry into the voluntariness of the alleged oral statement of the appellant.

21. Mr Marray submits that, in any event, the testimony of the appellant raised the issue of voluntariness, he having said of the meeting with Mr Singh of 6 September 2004 that Mr Singh had made reference to the videotape after which he had said :

“…I will frame you up, and I will cancel your visa … Otherwise you pay me $150,000.”  (appeal bundle page 115D)

Later, the appellant testified Mr Singh had said :

“You pay deposit money into this account, otherwise I have inspector in Tsim Sha Tsui Police Station, and I have that inspector in Tsim Sha Tsui, and I will call him and get you arrested.”  (appeal bundle page 115R)

22. Mr Marray accepts that in face of the magistrate’s reminder, at the end of the evidence of the appellant :

“Now, as we’re going along in the alternative procedure, I just want to remind you — to remind you that you must have canvassed all the issues on that -- the special issue aspect with your client…”  (appeal bundle page 121E)

counsel for the appellant had said :

“… he insisted he never make any admission … So it’s not a question of voluntariness or not.”

23. Mr Marray submits that, notwithstanding the assertions and concessions made by counsel for the appellant, it was nevertheless incumbent upon the magistrate to address and determine the issue of voluntariness, in respect of the appellant’s statements in the conversation with Mr Singh, raised in the testimony of the appellant, namely of threats and inducements.

The submissions of the respondent

24. Ms Ho, for the respondent, submits that at the end of the prosecution case the magistrate was entitled to act upon the invitation of counsel for the appellant to reconsider the issue of conducting an inquiry into the special issue and to desist from so doing.  Ms Ho submits that, when judged in true context, there was no support whatsoever in the evidence of the three prosecution witnesses for the allegation, initially identified by counsel for the appellant, that Mr Singh uttered words of inducement to the appellant prior to his admission of being thief of the mobile telephones.  She submits that their evidence was to the effect that, first the appellant had been confronted by Mr Singh with the CCTV film of the appellant leaving the godown with a box and thereafter, and in sequence, the appellant admitted having stolen the telephones, after which the issue of repayment of money and the question of no contact being made with the police was raised.

25. She invites the court to note that Mr Singh had testified that he had brought the appellant into his office and showed him the videotape, after which he had asked him “Why you did this?” He said that the appellant’s response has been to admit that he did steal and then (appeal bundle page 60F-I) :

“… start saying to me that not to call the police and he will return these goods.  First, he said he will return the goods and later he said he already sold to someone, he will return the money.  And then he start crying and then he asked me my company bank account number, which he took from my accountant, and then he walked away from my office.”

26. Also, Ms Ho points out that Mr Singh had answered in the negative, when asked if during the conversation with the appellant he had used any force, inducement for threat against the appellant (appeal bundle page 60R).  In cross-examination, Mr Singh readily accepted that he had agreed with the appellant at the meeting not to report the matter to the police if the money was recovered.  However, he denied that the arrangement had been at his suggestion saying (appeal bundle page 84L) :

“When I talked to him he told me not to call the police.  He will pay me back, which I agreed.”

27. Of PW2’s evidence, Ms Ho draws the attention of the court to Miss Kaur’s evidence-in-chief of witnessing Mr Singh confronting the appellant with the videotape having told him :

“… I have got the proof that you have stolen these pieces.”

She testified that the appellant’s response was to say :

“Forgive me, I have stolen these goods…But you don’t give the  – this to – this case to the police, and I will agree to give you the money back.”  (appeal bundle page 93O)

28. In cross-examination, PW2 returned to the subject of the conversation between the appellant and Mr Singh, describing the events as unfolding in sequence.  Mr Singh asked the appellant (appeal bundle page 98R-T) :

“You had committed this, you have stolen the goods.”

The appellant replied :

“Yes, I have stolen.”

Mr Singh said :

“Now what we have to do now, the next step?  Would you return my money back?”

The appellant said :

“Yes, I will return your money back, just give me your account number and don’t give this to anybody else.”

PW2 explained that meant to the police :

“I don’t want to spoil my — whatever, the character or what.”

Finally, when asked :

“... these were initiated by your boss and the defendant never, never made any admissions that he – he stole the mobile phones.  Do you agree or not?”

The witness replied :

“No, he – he admitted that, ‘I have stolen the mobile phones.’”

29. In his evidence, PW3 testified that when challenged with having stolen the mobile telephones by Mr Singh the appellant made repeated denials.  However, after having seen the CCTV tape the appellant admitted having committed the offence and testified that the appellant said (appeal bundle page 108B) :

“He request to — he request to the boss that, ‘No call the police, I will return the money.’”

30. Ms Ho accepts that, in the course of his evidence, the appellant testified in respect of the conversation with Mr Singh that he had been threatened by him with being framed and having his visa cancelled unless he paid $150,000.  Also, the appellant had testified that he had been induced/threatened that unless he paid the money a report would be made to a police station.  She points out that the issue of being threatened with being framed up or having his visa cancelled was not the subject of any earlier objection or cross-examination of any of the prosecution witnesses. Nevertheless, Ms Ho submits that it was not incumbent on the magistrate to re-open his earlier inquiry into the voluntariness of the alleged oral admission of the appellant to Mr Singh.  He was entitled to accept the assertion made by counsel for the appellant that the issue was that the appellant had never made any admission and, in particular her statement :

“So it’s not a question of voluntariness or not.” 

Conclusion

31. It is clear from the transcript in the appeal bundle that at the end of the evidence of the prosecution witnesses and before the prosecution closed its case the appellant was not offered nor did he seek to avail himself of the right to give evidence on the special issue in the alternative procedure that had been adopted earlier.  No doubt, that is because at that stage the magistrate had acceded to the request of the appellant’s counsel to desist in the inquiry then being made in respect of the voluntariness of the oral statements made by the appellant to Mr Singh.

32. At that stage, counsel for the appellant had cross-examined the three witnesses on the basis that prior to the admission of theft being made by the appellant, which itself was denied as having been made, Mr Singh had offered the appellant an inducement to admit his culpability by the promise that if he did so and repaid the money thereby obtained no report would be made to the police.

33. In my judgment, there is force in Ms Ho’s submission that the cross-examination had singularly failed to achieve acceptance by any of the witnesses, in particular in respect of the sequence of events.  On the contrary, when their evidence is judged in true context the effect of the testimony of the three witnesses is that the appellant had made his admission of theft in face of having been shown the videotape from the CCTV camera in the godown, in which he accepted he was depicted as having carried a box out of the godown.  The issue of repayment and no report being made to the police arose after the admission of theft by the appellant.  Furthermore, in context the three witnesses testified that it was the appellant who raised the issue of no report being made to the police if he made repayment.  There is no controversy that Mr Singh agreed with that suggestion.

34. Accordingly, in my judgment in light of the specific request by the defence so to do and in light of the evidence adduced at that stage the magistrate was entitled to discontinue his inquiry into the special issue at that stage.

35. It is clear that in his evidence the appellant not only gave testimony that went to support the earlier identified objection to the admissibility of his oral admission, namely that Mr Singh had made an inducement to him that no report would be made to the police if repayment was made, but also for the first time evidence was led of threats by Mr Singh to frame the appellant and to have his visa cancelled if he did not pay $150,000.  Although the appellant did not specifically link that conduct with his participation in the conversation, indeed he denied making any admission of theft, clearly the issue of voluntariness in respect of the alleged admission became relevant once again.  No doubt, that is why the magistrate inquired of counsel for the appellant whether or not she had canvassed with her lay client all the issues relevant to the special issue (appeal bundle page 121E).

36. Notwithstanding the assertion by counsel for the appellant that the issue of voluntariness did not arise and the fact that she did not address that issue at all in her final speech it is clear from the Statement of Findings that the magistrate nevertheless went on to address and resolve the issue.  In particular, he found that it was the appellant who raised the topic of not calling the police if the appellant returned the goods.  In the result, he found specifically :

“There was no inducement or threat made and no reason to exclude the statements made to PW1.”

37. Having had the opportunity of reviewing all of the evidence led before the magistrate I am satisfied that, in the particular and peculiar circumstances of this case, the magistrate was entitled to proceed in respect of the special issue in the way that he did.  Importantly, ultimately, and no doubt in light of the appellant’s testimony, he was not dissuaded by counsel for the appellant from making a determination in respect of the admissibility of the oral statements made by the appellant.  In my judgment, his determination that the evidence was admissible and the reliance he placed upon it in reaching his conclusion that the appellant was guilty was entirely justified.

38. In the result, the appellant’s appeal against conviction is dismissed.