THE QUEEN v. FUNG KWOK WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 762 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of theft, contrary to section 9 of the Theft Ordiance, Cap.210, by Mr D.E. Remedios at Shatin Magistrates Court and was sentenced to 15 months imprisonment. His co-defendant, Liu Yat-shing, was acquitted. The appellant appeals against both conviction and sentence.

2. It was admitted that container tractor DK 9760,   which belonged to U.D.S. Transport Company Ltd., went missing during the night of 19th - 20th July, 1989. It was admitted that, on 1st September, 1989, container tractor, DE 7499, driven by Liu Yat-shing, with a container behind, was detained by Customs officers at the border. It was also admitted that the appellant later claimed to be the owner of DE 7499. A tractor bearing that number is registered in his name.

3. There was forensic evidence that the original serial numbers on the engine block and on the chassis of DE 7499 had been erased and the serial numbers that are registered in the ownership particulars with the Transport Department embossed in their place.

4. The regular driver of DK 9760 inspected DE 7499 on 13th October, and found four points of resemblance to DK 9760 and three points of difference. In addition both the exterior and interior of the driving cabin, including the radio cassette deck, were the same as DK 9760.

5. The magistrate accepted the evidence of this witness, plus the forensic evidence, and found as a fact that DE 7499 and DK 9760 were one and the same. Mr Plowman, for the appellant, queries this finding - though not too strenuously - but submits that, in any case, it is more relevant to a charge of handling than theft. I am satisfied that the magistrate was entitled to come to the conclusion that it was the same vehicle.

6. The prosecutor opened his case by saying that, after DK 9760 was stolen by the two defendants, they carried out the various modifications.

7. On 4th October the appellant made a statement under cautioned, in which he said this:-

"I myself have a tractor DE 7499. On the 31st day of May, this year, this tractor was crushed when I was driving it at somewhere near Sai Heung of China, the front near-side of the vehicle was damaged. And then, I drove the vehicle back to Hong Kong and parked (it) at the garage of my brother-in-law YEUNG Sai. In June, this year, my friend TSUI Chi-sun suggested helping me to fix the vehicle, but (he) has to collect from me $25,000. I then gave the ignition key to TSUI Chi-sun, and told him that the vehicle was parked at the garage of YEUNG Sai at Kam Sheung Road. About two weeks later, TSUI Chi-sun telephoned me saying that my vehicle was badly damaged and it couldn't be fixed unless another vehicle was found to fix it for me, however, (he) still demanded a fee of $25,000. Seeing (the situation) was such, I then asked TSUI Chi-sun to fix the vehicle for me, and (I) agreed to (what) he (said). On the 25th day of July, this year, I received (telephone call) from TSUI Chi-sun telling me to go to the garage of my brother-in-law to take the vehicle. Well, at about 4:00 p.m. on that day, (I) brought along LIU Yat-shing and went to the garage at Kam Sheung Road to take the vehicle, and (I) gave $25,000 to TSUI Chi-sun as the repair fee. I didn't take part in this 'Theft of Vehicle' incident, it was all TSUI Chi-sun's idea."

8. Mr Tsui Chi-sun was called as a prosecution witness. Mr Plowman submits that the object of the exercise must have been to contradict the cautioned statement, which, if it is true, is a defence to a charge of theft. But Mr Tsui said he had no experience of repairing tractors and certainly did not repair one for the appellant. This evidence was rejected by the magistrate, who found that Mr Tsui was an untruthful witness.

9. The appellant's evidence was in line with his cautioned statement, though there were some minor differences. His case was that, after the accident in China, which damaged the front of the tractor but not the engine, he agreed to pay Mr Tsui $25,000 for the repair and for the fitting of a second-hand replacement engine.

10. The appellant told the magistrate that the engine had been losing power after four years and he wanted it overhauled, but Mr Tsui said it would be cheaper and quicker to replace it. The appellant agreed and the work was done between 1st 25th July, when the appellant took delivery and paid Mr Tsui $25,000 in cash. He admitted that, during this period, he did not inspect the progress of the work, although it was costing him $2,000 every day the vehicle was off the road. Nor did he test the performance of the replacement engine when he finally took delivery of the vehicle.

11. These were factors which weighed heavily with the magistrate. He says in his Statement of Findings : -

"I did not believe that the Appellant, as owner of a tractor which could earn him the sum of $2,200 per day when in use, did not go to the parking lot from time to time to view the progress of work. I did not believe that, as owner, he would not have asked more questions of the person carrying out the work on his tractor as to what sort of engine was to be put on his tractor. I took the view that he was deliberately lying to me on this matter purely to distance himself from the theft and from those carrying out the conversion for him.

 

The circumstantial evidence was so compelling that I found that the Appellant must have known that a tractor would be stolen and he consented that it would be converted to replace his damaged tractor and this would make him a party to the theft.

 

On the Appellant's own evidence, he was in possession of the 'repaired' tractor within six days of the theft of DK 9760. I took the view that, for an item such as a tractor, a period of six days would not be so long as to bring it outside the period of recent possession for the purpose of the law of theft."

12. The magistrate was entitled to draw an inference of guilty knowledge only if it was the only reasonable inference that could be drawn from the facts.

13. Mr Plowman submits that, in these circumstances, the magistrate should not have drawn an adverse inference against the appellant since, if Mr Tsui was lying - as he found - he could not be sure the appellant was not telling the truth on the vital question of knowledge. In other words, in the light of the magistrate's finding that Mr Tsui was lying, the appellant was necessarily telling the truth when he said that Mr Tsui had repaired the vehicle.

14. That, with respect, is only half the story. The prosecution case was not that any vehicle had been repaired, but that one vehicle had been made to look like another. The real effect of Mr Tsui's evidence was that he had had nothing to do with the vehicle. That the magistrate did not believe.

15. On the other hand it is transparently clear, for the reasons given by the magistrate, that the appellant's evidence concerning his dealings with Mr Tsui and the vehicle is also untrue. The magistrate was therefore entitled to reject the appellant's explanation for being in possession of the vehicle. Having done so, the only reasonable inference was that the appellant was party to a plan to steal the vehicle. The identity of his fellow conspirators is irrelevant. The circumstances of the case point to theft, rather than handling , and it matters not that one of the conspirators may have been a prosecution witness.

16. The appeal against conviction is therefore dismissed.

17. As both counsel have observed, the sentence of 15 months is a heavy one on a first offender for a single charge of theft of a vehicle.

18. Although several mitigating factors were brought to the magistrate's attention, he appears to have given them little weight.

19. There was, however, one matter of which he was, understandably, not aware. In January - some months before his trial - the appellant made a statement to the police implicating Mr Tsui in the alteration of the chassis number of another vehicle.

20. In July - some months after his trial - he gave evidence in line with this statement at Mr Tsui's trial for that offence. Mr Tsui was acquitted, but I am satisfied that the appellant should receive some credit for his action.

21. In all the circumstances I am satisfied that the proper sentence is nine months imprisonment. The appeal is allowed to that extent.