R. v. LI CHI HO

1996, No. M.A. 1330

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL

(ON APPEAL FROM CASE NO. SPC 1813/96)

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J U D G M E N T

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1. On 18th of April, 1997, I refused the appellant's application for leave to appeal in respect of the 1st charge of Theft. I granted leave to the appellant to appeal against the 2nd charge of Theft and the 3rd charge of Burglary and quashed the conviction in respect of those charges. I indicated that I would give my reasons in writing this I now do.

2. The 1st charge of Theft was said to have been committed on 30.4.96, the 2nd charge of Theft on 25.1.1996 and the 3rd charge of Burglary on 11.9.1994.

3. There could be no dispute that the offences did take place. The only issue was whether the appellant took part in such offences.

4. The evidence against the appellant adduced by the prosecution was relatively simply and straightforward.

5. On 30.4.1996 at about 3.40 p.m., a supervisor of the Wilson Carpark at the Hong Kong International Airport noticed the activation of the alarm which was connected to a transmitter at the "East Bound" of the carpark. The transmitter was installed inside a white box.

6. The supervisor went to the "East Bound" and saw the appellant holding a wooden ladder and was walking towards the rear part of a vehicle.

7. The appellant was asked what he was doing. He gave no reply and tried to walk away. He was chased after by the supervisor as he suspected the appellant to have stolen the transmitter. The supervisor raised a hue and cry. Eventually and after some distance of chasing, the appellant was stopped by police officers who arrived to give assistance. The appellant was then arrested.

8. The transmitter, a transformer and a ante-theft alarm, the subject matter of the 1st charge were originally installed inside a white box hung on the wall at the "East Bound" of the carpark. When the appellant was first noticed, he was about 6 meters odd from the original position of the white box and was one vehicle space from his own vehicle FW 2935.

9. The white box and its contents were found missing from its original position. The wire connecting the transmitter had been cut and there was also an antenna on the ground.

10. After the appellant was grabbed, a screw driver and a pliers were found his right trousers pocket. Another screwdriver and a pliers were found from his left trouser pocket. The appellant, on being questioned, claimed that such instrument were used to repair a friend's car. He was asked where was the car and where was his friend. The appellant gave no response. He then told the officer that he had a vehicle which was parked at his residence and that he had been waiting for a friend on the 3rd floor of the carpark at the Airport.

11. The appellant's car FW 2935 was in fact parked on the 3rd floor of the carpark. The white box with the transmitter and the other contents were found inside the trunk of his vehicle.

12. The appellant's premises was subsequently searched. Inside the appellant's room, the two other transmitters, the subject matter of the 2nd charge of theft and the 3rd charge of burglary were found.

13. The appellant in his defence, claimed that he returned to the airport at about 2.50 p.m. on 30.4.1996. He then went to the bank on the 3rd floor of the passenger building of the airport before he did some repair to the door of his locker. The time was then about 3.25 p.m. and he realised that he had left his wallet in his car.

14. The appellant then went to his car. He also intended to drive his car to the west side of the carpark, closer to his office.

15. The appellant said he saw the white box on the road on the 3rd floor of the carpark. He then put it aside to a spot near the wall. He said as the white box was blocking the traffic, the decided to take the white box to the management office of the carpark. He then put the white box into the boot of his car.

16. The appellant said he also saw a wooden ladder on the ground with a broken leg. He put it aside in order that it would not obstruct the other cars. It was when he was placing the ladder to one side that he heard someone shouting "robbery". He noticed someone throwing himself onto him and he started running towards the passenger building.

17. The appellant continued to run until he was stopped by some security guards before the policemen also arrived. He said he told the officers that he thought he was being robbed. He agreed that the screwdrivers and the pliers were found from his person and he was questioned about them. He said it was confusing when he was being questioned as there were a lot of people surrounding them.

18. He said the transmitters found at his home were bought by him at Apliu Street, one in the summer of 1995 and the other in March of April of 1996. He said he never suspected them to be stolen goods.

19. The appellant claimed that the screwdrivers and pliers were used by him to repair the door to his locker.

20. The learned magistrate rejected the evidence of the appellant and accepted the evidence of the prosecution witnesses in respect of the 1st charge. From their evidence, he drew the inference that the appellant was the person who removed the white box in its original position to steal it. He therefore convicted the appellant on the 1st charge.

21. The learned magistrate also came to the conclusion that he was entitled to take into consideration the evidence pertaining to the 1st charge in his deliberation on the 2nd and 3rd charges on the basis of the "Similar Facts". He said there were similar features on all three charges as follows:-

(a) the type of equipment involved. Radio transmitters are not items of equipment in every day use, freely available at electrical goods shops. Their use is controlled, and requires the grant of an authority, such as the one held by the appellant, to authorise use by amateurs.

(b) the place from which they were taken. The transmitter in charge (2) was stolen from the same place as that in charge (1). That in charge (3) was stolen from the same building, although from a higher floor.

(c) the proximity of the appellant's workplace to the places where the thefts were committed.

(d) the appellant's interest in radio transmissions, as shown by the nature of his employment and his holding of an authority to operate an amateur radio station.

(e) in relation to charge (2), the transmitter was stolen within 10 days of installation, by being removed from the box. The later theft in charge(1), which was clearly aimed at the new transmitter, could not be carried out in that way, because of the installation of an alarm and a mesh to prevent the transmitter's removal. It therefore necessitated the use of a ladder to remove the entire box and its contents. All these matters indicated that the thief was a person with frequent access to the car park and a good knowledge of the state of affairs at the box P.1.

(f) in relation to charge (3) the way the suspect ran off on being asked what the matter was, just as the appellant had in charge (1).

22. In respect of the 2nd charge of theft, the learned magistrate also relied on the doctrine of recent possession. He came to the conclusion that although the transmitter was discovered in the possession of the appellant a little over three months after the theft occurred, the doctrine of "recent possession still operated against the appellant in the absence of a credible explanation for the appellant's possession of the transmitter in question.

23. In support of the application, Mr. Wong, on behalf of the appellant argued that the learned magistrate could not have inferred guilt on the evidence in so far as the 1st charge was concerned as it was physically impossible for the appellant to do what was alleged against, namely to dismantle the white box and take it to his car within a minute or so. It was also suggested that the appellant's version was more credible.

24. It was suggested that the appellant only had one odd minute to dismantle the white box because immediately on the activation of the alarm, the supervisor left the office to go to where the white box was and one of the witnesses said the journey took just over one minute.

25. There was in fact no conclusive evidence as to the distance between the office/control room of the Wilson Parking and the "East Bound" where the white box was installed. Different witnesses described the time to go from the office to the "East Bound" differently.

26. When asked how long it would take to walk from the control room to the white box at normal pace, PW 1 said a little over a minute. When asked the same question, PW 2 said about 5 minutes whereas PW3, the supervisor said it would take 2-3 minutes.

27. Witnesses are notorious inaccurate in their assessment of time and distance. In the light of the evidence from the different witnesses, the suggestion that the appellant only had one minute to dismantle the white box and then to take it to his car could not be supported.

28. In any event, there was also no clear evidence as to how the alarm could be activated. PW1 suggested that if someone opened the door of the white box without deactivating the anti-theft device, the alarm would be activated and if the wires were cut, the alarm would also be activated.

29. It was quite possible that the appellant could have unscrewed the white box from the wall without activating the alarm and the alarm was only activated when the box was being removed from the wall and thus cutting the wires. An examination of the white box itself indicated that the screws could be removed without opening the door of the box.

30. In my view, on the evidence before the court, the learned magistrate was perfectly entitled to reject the suggestion which he did that the appellant could not have enough time to do what the prosecution alleged against him. Although the ladder had a broken leg, it could still be used to reach the white box. There was also no evidence as to when the ladder was broken. It could have been broken when the white box was being taken down.

31. I also found the suggestion that the version of the appellant fitted the physical facts better not convincing. The appellant's version must necessarily mean that someone else removed the white box and put it on the ground before he came across it. If the appellant did not have enough time to do what was alleged against him, how could anyone else have enough time to do what the appellant suggested that he did, a matter quite properly referred to by the learned magistrate. Indeed why would someone remove the white box and then placed it on the driveway of a carpark.

32. I have considered the evidence as well as counsel's submission carefully, I am firmly of the view that the learned magistrate was entitled to reject the explanation of the appellant on the evidence before him. On the evidence as found by the learned magistrate, the inference of guilt in respect of the 1st charge against the appellant was inescapable.

33. I do not agreed with the suggestion that the learned magistrate, when ruling that there was a case to answer in respect of the 2nd and 3rd charges, had already concluded that the facts in relation to the 1st charge had already been proved beyond reasonable doubt when he said that the evidence in respect of the 1st charge was admissible against the appellant on a "similar fact" basis.

34. The learned magistrate needed at that stage only to decide if a prima facie case against the appellant had been established. What he said amount to no more than that if the evidence in support of the 1st charge had been established, such evidence could be admissible against the appellant on a "similar facts" basis. That was all he needed to decide at that stage and that was clearly what he had decided. The suggestion that the learned magistrate had found elements of the charge proved beyond a reasonable doubt before hearing the evidence and submission of the defence must fail.

35. There was nothing about the 1st charge that caused me any concern. I was satisfied that the appellant had been properly convicted. The application for leave to appeal against the 1st charge was therefore refused.

36. The learned magistrate relied heavily on the "similar facts" evidence in reaching the guilty verdict in respect of the 2nd and 3rd charge. To constitute "similar facts" evidence in the support of a charge against an accused, the evidence must evidence of criminal acts on the part of the accused (R. v. Boardman [1975] A.C. 421) or evidence about the manner in which the crime was committed. (DPP V. P [1991] 2 A.C. 447)

37. The features that the learned magistrate relied on as "similar facts" evidence included the similar type of equipment which were stolen, the place where they were stolen, the proximity of the appellant's workplace to the places where the thefts occurred, the appellant's interest etc. With respect, those features could not be "similar facts" evidence at all to support a charge, a point fairly and promptly conceded by Mr. Tam for the Crown.

38. In so far as the learned magistrate committed an error of law in relying on such matters in convicting the appellant on the 2nd and 3rd charges, such convictions were unsafe and unsatisfactory.

39. Mr. Tam on behalf of the Crown also fairly conceded that after a lapse of almost 3 month, it will be wrong for the learned magistrate to allow the doctrine of "recent possession" to operate against the appellant in respect of the 2nd charge.

40. There were clearly suspicious circumstances pertaining to the 2nd and 3rd charges when the appellant was found in possession of transmitters stolen in the respective theft and burglary. But the evidence, considered in the proper context was not adequate to support a conviction. In the circumstances, the convictions in respect of the 2nd and 3rd charges must be quashed and the sentences set aside and I so ordered.