FOK KAUv. R.

1993, No.321
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Bewley J.:

1. This is the judgment of the court.

2. The applicant was convicted on 25th May 1993 by Her Honour Judge Chua in the District Court on one charge of counselling and procuring theft. He was sentenced to three years' imprisonment. He now applies for leave to appeal against both conviction and sentence.

3. He was to be tried together with one Tang Hing-wong, the alleged thief, but on the hearing date Tang was found to be medically unfit and the applicant's trial proceeded without him.

4. The following facts were admitted:

1. Shortly after 6 pm on 12th of December, 1991, Tang Hing Wong was seen by a police officer driving a Lexus, registration number EY2580, out of the exit of the New World Centre Carpark. He ignored signals to stop and drove into Salisbury Road. At a red light Tang alighted from the car and ran. Police officers chasing him apprehended him.

2. At Tsimshatsui Police Station an officer searching Tang found a car key, a monthly parking ticket Which had been issued in respect of the Lexus, and a pager.

3. The ignition in the Lexus was damaged and a torch, hammer and screwdriver which did not belong to the Lexus, were found.

4. The assistant manageress of Colby and Staton Fashions Ltd. identified the car as being owned by the company and said no one had been authorized to remove it from the carpark.

5. The case against the applicant depended on two cautioned statements, which were admitted after the judge found them to be voluntary in spite of allegations of threats and assaults. The applicant did not give evidence but called his girlfriend who failed to support the allegations. The applicant called no evidence on the general issue.

The first cautioned statement contains the following passage:

"I called Hing Chai to help me to get a commodity tomorrow night as (somebody) in the Mainland wanted it. Then Hing Chai asked me if Ling Kee was alright. I said 'any will do'.

Q1 The Hing Chai that you mentioned was Tang Hing Wong, wasn't it?

A I don't know. I only knew him as Hing Chai.

Q2 You said 'called Hing Chai'. Then what is the number of the pager of Hing Chai?

A It is 1128052 a/c 1272.

Q3 You said, 'to help me to get a commodity tomorrow night'. When did the words 'tomorrow night' refer to?

A I referred to the night of 13th of December.

Q4 You said 'to help me get a commodity tomorrow night'. What did to get a commodity mean?

A That meant to find a car, usually obtained by stealing.

Q6 You said (somebody) in the Mainland wanted it. What did you mean?

A A man surnamed Cheung at Huidong in the Mainland phoned me and said he would have a new speedboat launched on the 9th day of the Lunar Calendar. He asked me to help him get a commodity.

Q10 For the ninth day of the Lunar Calendar what date should it be by the solar calendar (sic)?

A It is the 14th December.

Q11 You said 'Hing Chai asked me if Ling Kee was alright'. What did Ling Kee mean?

A That was a Lexus private car."

6. The judge in her Reasons for Verdict stated:

"It was the evidence of PW5 Sergeant 11950 Lee Wing Sum that on instructions at 8:20 pm on the 12th of December, 1991, he had taken custody of P7, a pager belonging to Tang Hing Wong. He said the telephone number was 1123052 a/c 1272 and the account holder was Tang Hing Wong. He checked three messages that appeared in the window of the pager. The third at 11:42 pm that night was left by 'Ah Kau' who had left a telephone number 4753721. He had discovered this by telephoning the pager station using the telephone number given by Tang.

P3 is a telephone bill seized from the home of Lai Siu Wah, the defendant's girlfriend, who had given evidence in the voir dire. She has admitted she is the leaseholder. P3 proves the telephone at that flat is 4753721.

I therefore infer from the evidence that the "Ah Kau" who left the message on Tang Hing Wong's pager is the defendant Fok Kau, and when the defendant referred to Ah Hing who he asked to steal a car he means Tang Hing Wong."

7. Mr McCoy, counsel for the applicant, submits that the sergeant's evidence was hearsay and inadmissible to establish that "Hing Chai" in the cautioned statement refers to TANG Hing-wong and there was therefore no evidence that the offence of counselling and procuring was committed.

8. The sergeant did not himself seize the pager from Tang. No evidence from the pager company was called. The pager does not fall within a statutory exception to the rule against hearsay and is therefore not evidence of the accuracy of the number marked thereon. The remainder of the sergeant's evidence consists of what he was told by the pager station employee. We are satisfied that the evidence of the sergeant was hearsay and inadmissible.

9. Mr McCoy points out that, if the prosecutor or the judge in the court below had become aware of the hearsay problem, it might have been resolved by an amendment of the particulars. He submits however that this court has no power to do so on appeal. We accept this.

10. In our view, however, the conviction can stand without amendment. An offence cannot be said to have been procured unless there is a causal link between what the alleged procurer did and the commission of the offence. The applicant was charged not with incitement but with counselling and procuring. Clearly the applicant did not give any instructions in relation to the actual car stolen. In R. v. Bainbridge [1960]1 QB 129 it was held that the judge was correct in directing that it is sufficient to show knowledge of the intention to commit a crime of the type which was committed, and something done, with that knowledge, to help in the commission of the crime; it is not necessary to show knowledge of the particular date and premises concerned. The appeal was dismissed. That decision was approved by the House of Lords in DPP for Northern Ireland v. Maxwell [1978] 3 All E.R. 1140.

11. The situation in the present case was that on 12th December the applicant called "Hing Chai" on his pager and asked him to steal a car which would be taken to China by speedboat. Hing Chai asked him if a Lexus would be alright and he replied "Any will do". The same evening a man called TANG Hing-wong, who was in possession of a pager, was caught stealing a Lexus car.

12. Those facts, in our judgment, in the absence of evidence pointing in another direction, are too coincidental to leave any reasonable doubt as to guilt. Such an approach does not prejudice the applicant's defence, which was that the confession was the result of police violence. Nor is there any conflict with the particulars charged.

13. For these reasons we allow the application for leave to appeal against conviction, treat the application as the hearing of the appeal but dismiss the appeal.

14. The application for leave to appeal against sentence has been abandoned.