THE QUEEN v. LAU CHI WING

Cr. App. 648/85

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 648 of 1985

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BETWEEN

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JUDGMENT

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1. On the 23rd April 1985 the appellant was convicted by a magistrate of charges of Taking a Conveyance without Authority, Theft and Attempted Theft. He was found not guilty on a second charge of Theft.

2. In respect of the first charge he was sentenced to 6 months imprisonment suspended for 2 years, a fine of $2,000 and costs of $1,000 and to disqualification for a period of 1 year from driving all motor vehicles and he was also ordered to re-sit the driving test at the end of the period of disqualification. He was fined $2,000 and costs of $1,000 on the second charge and fined $1,000 on the third charge. The appellant appeals against conviction and against his sentence on the first charge.

3. The convictions were based upon admissions made by the appellant in four cautioned statements. The facts reveal that police officers were carrying out an observation in the vicinity of the Shek Wai Kok car park in the early hours of the morning of the 10th November 1984 when they saw a car driven by the appellant drive to the 4th floor of the park. There were four passengers in the car one of whom the first defendant alighted and was seen to walk over to another vehicle, where he opened one of the doors. The car was shortly afterwards intercepted by the police as it was leaving the car park, and the appellant and the other occupants were arrested. At 7.50 p. m. on the same day the appellant made a cautioned statement exhibit P1 in which he said that as the bumper of his car had been damaged he had asked the first defendant to find him a replacement. The appellant contended that the reason for the visit to the car park was merely to steal a bumper and that when they reached the 4th floor of the car park the first defendant alighted from the car for this purpose alone. However, he returned to the car without doing so.

4. Objection was raised at the trial as to the admissibility of the statement but after a voire dire had been held the learned magistrate ruled the statement to be admissible. Upon the appeal Mr. Cunningham who appeared for the appellant did not object to admissibility of the statement.

5. On the 12th November 1984 the appellant appeared before a magistrate with the other defendants and was remanded in custody until the 15th November 1984. On the 15th November 1984 the appellant was granted bail but was apparently re-arrested after the hearing and taken to the Tsuen Wan Police Station where later he made three further cautioned statements exhibits P2, P3 and P4. The appellant objected to the admissibility of these statements at the trial on the grounds of oppression and that lie was also refused access to a lawyer. These statements ware also admitted in evidence by the magistrate after a voire dire. The appellant did not give evidence on the voire dire or on the general issue. There was no evidence of oppression before the learned magistrate so that this objection must fail. Mr. Karbhari the appellant's solicitor testified in the voire dire that he went to the police station in the afternoon of 15th November 1984 but said he was unable to see the appellant until after the statements had been taken. By his failure to give evidence there was no admissible evidence to support the appellant's allegation that he had been refused access to a lawyer. As a result this objection also fails. In my judgment the statements were properly admitted.

6. The only evidence against the appellant relating to the first charge is contained in exhibit P2 where the investigating officer in the preamble says he was enquiring into a case of theft of a vehicle which occurred between 3 a. m. and 7.10 a. m. on the 4th November 1984 at the road entrance of Ki Lung Wai Village, Tuen Mun when the appellant and three other named men stole a private car registration No. CF2043. In the statement the appellant says as follow:-

"At that time, I did not know that they (went) stealing car. However, I took YIP Kwan-shun, WONG Ping-hoi and WONG Chai to Tuen Mun by car. (It) was YIP Kwan-shun who went down to steal (a) car. Then, I drove WONG Ping-hoi and WONG Chai to the road entrance of Ka Wo Li Village by my car, CU5734. After that I went home."

This statement far from amounting to an admission of guilt is in fact a denial of knowledge. It would therefore be unsafe to allow this conviction to stand.

7. Mr. Cunningham argued that there was no evidence of mens rea or actus reus in respect of the other two charges. With regard to the charge of theft Mr. Cunningham said that the appellant's original intention was restricted to stealing a bumper and not to a general intention to steal. I do not accept this submission for it is abundantly clear from the evidence that the appellant formed part of a joint enterprise to steal. It would be unrealistic to regard him as an innocent observer sitting at the wheel of his car whilst his colleague was stealing from another vehicle and afterwards placed the stolen items in his car. There were clear admissions in the cautioned statements of common intent to participate in a joint enterprise upon which the learned magistrate relied as true which were sufficient to found the convictions on the second and third charges.

8. Although Mr. Cunningham commented that the learned magistrate may not have adopted the proper standard of proof, I do not agree.

9. Accordingly the appeal in respect of the first charge is allowed so that the conviction will be quashed and the sentence set aside. The appeals in respect of conviction on the second and third charges will be dismissed.