THE QUEEN v. WONG CHUN WAH AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRININAL APPEAL NO. 773 OF 1987

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JUDGNENT

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1. The appellants were convicted of stealing 200 catties of toad venoms - a synthetic herb according to counsel - allegedly worth $104,000, from a herb dealer, Mr. Choi Ka-shun.

2. According to Mr. Choi he first met 1st appellant about 15th February this year, when he was introduced as a person wishing to buy toad venoms. On 19th February both appellants and a third man came to Mr. Choi's office, where they were shown some samples, which they did not like. Nevertheless, it was agreed, subject to the quality of the goods being satisfactory, that 1st appellant would buy 200 catties at a price of $520 per catty. The transaction was to take place on 21st February.

3. That day at about 1 p.m. the same three men came to Mr. Choi's office and were shown samples which were acceptable. The third man went to buy four sacks into which Mr. Choi and his wife helped to put the goods. For about three hours thereafter 1st appellant tried to contact his brother on the telephone in order to raise the purchase money. Eventually Mr. Choi left the room in order to go to the lavatory, leaving his wife with the three men.

4. According to her, although she knew that the men had come to buy toad venoms, she did not know the details of the transaction and, since she had recently arrived from Chiu Chow and did not understand Punti dialect, she did not know what had been discussed. Her evidence was that, during the few minutes her husband was out of the room, the three men hurriedly removed the goods and left the premises. The process took about five minutes because, after dragging three sacks to the lift, one of the men returned for the last sack. Nothing was said while this was going on. When Mr. Choi returned, he went downstairs to look for the men, but they had gone.

5. Mr. Choi said he scolded his wife for letting this happen. He did not mention that he had gone downstairs to look for the men. He had paced 1st appellant until 2 a.m. next morning, when 2nd appellant returned his call and said he would ring later.

6. Since then Mr. Choi has received various sums from 1st appellant. One week after the incident, the man who had introduced them, Mr. Choi Hoi, gave him $10,000. He said he was reluctant to accept it, but Mr. Choi Hoi said he would need money to search for 1st appellant. He later met 1st appellant, who gave him $3,000 and promised to pay the balance in a week. When he failed to do so, Mr. Choi went to the police; it was about 13th March. Later 1st appellant gave him $8,000.

7. In cross-examination Mr. Choi admitted he told the police he owed 1st appellant a $25,000 gambling debt. He did not owe this money, but he had agreed with 1st appellant that he should pay for the goods at the rate of $18,000 per month and that the price would be reduced by $25,000. So, he explained, “It was just like I lost the sum in gambling".

8. Mr. Choi also admitted that 1st appellant had telephoned on the evening of 21st February and said he would bring him the money. This was the reason he did not go to the police. He agreed that they had had frequent discussions about payment and that 1st appellant had always indicated his willingness to pay.

9. Finally, when it was put to him that the goods had not been stolen, he replied, "I did not accuse them of stealing, they just removed it. If. I agreed, there should have been some documents. If I did not agree, there would be no document. I dared not say they stole the goods”. He was not asked to clarify this last remark.

10. The only other prosecution witness was a Chinese herb broker, Mr. Cheung Chi-keung, to whom 2nd appellant sold 130 catties of the herbs for $400 per catty. He said the sale took place on 21st February and the day before he had been shown some samples by 2nd appellant. The asking price was $500 odd but, after consulting others in the trade, he told 2nd appellant this was too much.

11. 1st appellant said in evidence that he had known Mr. Choi for about a year. They saw each other almost daily. Earlier in February he had lent him $25,000 with which to gamble. It was arranged that 1st appellant would be reinbursed by selling the toad venoms on Mr. Choi's behalf.

12. On 17th February both appellants and a friend visited Mr. Choi and inspected samples. 2nd appellant said they were of poor quality and they left.

13. On 19th February Mr. Choi rang 1st appellant and he returned with friends to inspect some further samples. These were of better quality and they took them away to show dealers in the trade. Mr. Choi had told him the price was $520 per catty, but the dealers to whom the appellants showed the samples on 19th and 20th February said the best price was $400.

14. On 20th February the appellants and a third man returned to see Mr. Choi, who said he had no alternative but to sell at the lower price as he had no money. He told 1st appellant to sell them for him, deduct the $25,000 and return the balance. The goods were packed into four sacks and Mr. Choi and his wife helped to push them on a trolley to the lift. They took the goods to the street and returned the trolley. It was bebween 4-5 p.m.

15. 1st appellant took three of the sacks in a taxi to his girlfriend's flat in Aberdeen, while 2nd appellant took the fourth. He admitted talking to Mr. Choi on the phone that night. Mr. Choi asked for his money, but 1st appellant told him he had not yet sold the goods. In fact 2nd appellant had sold his sack. The others were sold by 2nd appellant next day.

16. 1st appellant collected $82,625 from 2nd appellant altogether. He returned $25,000 to a friend, from whom he had borrowed it, and lost the remainder gambling. He told Mr. Choi what had happened an apologised. Mr. Choi asked him to pay as soon as possible, but they continued to see each other daily.

17. On 25th February 1st appellant borrowed $10,000 from a friend, which was given to Mr. Choi by Mr. Choi Hoi. He later gave him a further $3,000 and I.O.U. for $70,000. A few days later he paid him $8,000. He premised to pay the balance by monthly instalments of $1,000 - 2,000.

18. Mr. Choi agreed to this arrangement and promised to “conceal the case”. But later, after 1st appellant had given Mr. Choi a $10,000 cheque, which bounced, Mr. Choi made a report to the police.

19. In cross-examination 1st appellant said he had sold herbs and watches on behalf of Mr. Choi on other occasions but never charged him any commission because they were friends and gambled together. On this occasion 2nd appellant was also working for nothing because he wanted 1st appellant to recoup the $25,000 debt.

20. 1st appellant was asked why they bothered to remove the toad venoms from Mr. Choi's office. His answer was that they hoped to sell them that day but found it was too late. It should be noted here that Mr. Choi' s premises are at 54 Des Voeux Road West -I take judicial notice that this is the heart of the herb trade - but 1st appellant said he did not know buyers were concentrated here.

21. 1st appellant admitted that he and 2nd appellant had made many phone calls during the three or four hours they were in Mr. Choi's office, but he said these calls were to prospective buyers and, in fact, the sack sold by 2nd appellant that day was sold as a result of one of these calls.

22. 1st appellant admitted he had not given a receipt for the goods, nor had they been weighed; they trusted each other. Mr. Choi was told the price would be $400 per catty and the total about $80,000.

23. 2nd appellant's evidence followed the same lines. He, however, has some experience in the toad venoms trade. In his opinion the first samples were fakes and of no commercial value. Mr. Choi, when informed of this, said he would get some better quality goods.

24. He told Mr. Choi that $520 per catty was out of the question. Mr. Choi accepted this and asked for help because he owed 1st appellant $25,000. 2nd appellant already blew about this.

25. 2nd appellant confirmed Mr. Cheung Chi-keung's evidence about his approach with samples and the subsequent sale.

26. His evidence concerning the events in Mr. Choi's office on the afternoon of 20th February largely coincided with that of 1st appellant. He did say, however, that the latter and Mr. Choi agreed that they would share any loss on the deal. They sat there for about two and a half hours discussing this aspect of the matter and rinsing prospective buyers.

27. 2nd appellant's evidence was that the goods were the same as the second sample and therefore acceptable. They were then put in sacks and removed from the shop in the circumstances described by 1st appellant. He told Mr. Choi that he would sell the goods and settle with 1st appellant. Mr. Choi agreed. At 4.30 p.m. they left. 2nd appellant decided to take one sack to test the market and asked 1st appellant to take the other sacks home.

28. He then described how he sold the goods, including the deal with Mr. Cheung, which amounted to $52,325. He passed this money, plus $16,725 from the other sales, to 1st appellant.

29. 2nd appellant was asked in cross-examination why, as a dealer in herbs, he charged no commission on these sales. His answer was that he knew both 1st appellant and Mr. Choi were in financial difficulties and he therefore did not request commission.

30. He also was asked why he removed all the goods from Mr. Choi's office, instead of taking samples to prospective buyers. He replied that he had to sell 'bit by bit', or he would kill the price, so he 'intended to transport four bags to a place close to prospective buyers so that I could bring all the goods up at one time'. In other words, he explained in case one buyer failed to take the whole lot, he could take the balance to another buyer.

31. Another factor was that he did not want any query as to altered weight or quality and therefore he felt it safer, from his point of view, if the bulk of the goods remained with 1st appellant. Yet this strikes an odd note, given the fact that 2nd appellant was not going to make any profit on the transactions.

32. Finally 2nd appellant said there was an electric door, which Mr. Choi opened to allow them to leave his office. He said this was commonplace in the trade. Mr. Choi was not cross-examined about this. On the other hand, if this was the defence case, why was there no application for a view?

33. The final witness was Mr. Choi Hoi, a fellow Chiu Chow friend of Mr. Choi, who was also friendly with 1st appellant. He had seen them together on many occasions this year. Some months earlier 1st appellant asked him to give Mr. Choi $10,000, being the proceeds of sale of some goods. He had done so and Mr. Choi had commented that it was such a small amount and he would have to discuss the matter with 1st appellant, but he asked Mr. Choi Hoi to chase 1st appellant for the balance.

34. This witness also said there was an electric gate controlling the entrance to Mr. Choi' s office, operated by a switch on a desk near the door.

35. There were thus two different stories before the magistrate, or rather, one story with two crucially contradictory versions.

36. It may be an indication of what went wrong that the magistrate began his consideration of the conflict in the evidence by saying that he “had no hesitation in rejecting the defendants' claim that they removed the goods in question with the consent of PW1 in the circumstances described by the defence”. He went on to scrutinize Mr. Choi's evidence "with utmost care and attention". He found that he believed the prosecution witnesses and was satisfied that there was a premeditated plan to cheat Mr. Choi.

37. This was, with respect, having regard to the burden of proof, putting the cart before the horse. There were obvious flaws and contradictions in both prosecution and defence cases. However, before he could safely convict, the magistrate had to be sure that Mr. Choi's evidence was true in its essential details. It does not follow that because the defence evidence is untrue, the evidence of the prosecution witnesses must be promoted and necessarily believed as the truth. See R. v. Lucas[1]. The magistrate should therefore have examined the prosecution case first and, if he thought it had substance, looked to what extent it was weakened by the defence evidence.

38. Had this approach been followed, I think there is little doubt that the magistrate would have acquitted. I am bound to say, moreover, that I am surprised that Mr. Wong, counsel for the respondent, conceived it his duty to seek to uphold the conviction. I have seldom come across a case in which a conviction was so obviously unsafe and unsatisfactory.

39. Consider the realities of the situation - as indeed did Addison J. in his ruling when granting bail pending appeal. The case depended on the evidence of Mr. Choi. He was proved to be a liar in several vital areas. In the first place his explanation for telling the police he was indebted to 1st appellant is obviously untrue. An ex post facto adjustment in the purchase price is a far cry from a prior gambling debt. Why should he lie about this if the goods were taken from his premises as he says they were?

40. Next, how could the theft have occurred in the presence of Mr. Choi's wife? She may not have understood what was being said, but she knew that her husband was negotiating for the sale of a valuable commodity. All five persons were sitting in the room for several hours. As soon as Mr. Choi leaves the room, the three men start hauling the sacks towards the lift. Yet Mrs. Choi says not a word. Nor does she go and tell her husband what is happening. For nearly five minutes the removal operation continues: I am assuming, for the sake of argument, the absence of electric door and trolleys.

41. Not satisfied with three sacks, one of the men returns for the last sack, risking the reappearance of Mr. Choi. There is still, of course, the risk that the latter will dial 999 when he realises what has happened. If he had done so, the appellants would have been arrested, probably before they could have disposed of the goods.

42. Why did Mr. Choi not report the matter to the police for three weeks? His explanation could be true, but it is not very plausible. There was a lot of money involved. Even if the appellants were known to him, even if he were negotiating for the sale of the goods, the circumstances of the taking surely demanded that he safeguard himself by advising the police.

43. Then there is Mr. Choi's contradictory evidence about the telephone calls that evening. He could not have forgotten 1st appellant's call promising to pay the money.

44. Finally; why did he say he dared not accuse the appellants of stealing the goods? On his evidence they undoubtedly did steal them.

45. At the close of the Crown case, there was an unsuccessful submission. The magistrate then proceeded to hear the defence evidence, which he did not believe. I take no issue with him there. Much of it makes no sense at all, particularly as to the loss of the money gambling by 1st appellant and the evidence that the appellants were working for nothing. Nevertheless, as I have already indicated, that does not mean Mr. Choi’s evidence is true.

46. The magistrate then proceeded to make his findings of fact. He found that the prosecution witnesses were telling the truth and the defence witnesses were not. The only reason he gave for these findings was 1st appellant's wife's evidence in cross-examination that her husband went down to the street to try and find the appellants and the toad venoms. He was impressed by the fact that this was said spontaneously in cross-examination. Clearly, if this evidence is true, it shows the goods were taken without Mr. Choi’s consent.

47. On the other hand, if this is what happened, it is odd, to say the least, that Mr. Choi did not mention it in his evidence. Those five minutes are the crux of the case. Mr. Choi must have been well aware of that, but the sequence of his evidence was that:-

(1) He came out and they were not there.

(2) He scolded his wife.

(3) He paged 1st appellant.

48. The fact that his wife said in cross-examination that he left the shop in pursuit of the appellants and the goods is not, in my judgment, such persuasive evidence as would justify the magistrate's finding that Mr. Choirs evidence is true. No other reasons for such finding are given. The magistrate says there was no question of concoction between husband and wife. Whether this is true or not, the evidence does not prove that they are both telling the truth.

49. Having regard to the burden of proof and the nature of the prosecution evidence, I find that the conviction is unsafe and unsatisfactory. The appeal is allowed, the conviction quashed and the sentence set aside.