HKSAR v. LI CHUNG YUK

CACC 214/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 214 OF 1999

(ON APPEAL FROM DCCC 947 OF 1994)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 5th March 1999, the appellant was convicted by H.H. Judge Wright in the District Court of two charges of handling stolen goods and he was sentenced to a total of 4 years imprisonment.

2. The first charge alleged that the appellant on or about 16th July 1994, dishonestly handled one diamond ring and eight watches, the properties of Yip Wai-mun, knowing or believing the same to be stolen goods. The second charge alleged that the appellant on or about 18th April 1994, dishonestly handled a gold gentleman's Rolex wrist watch, the property of Alexander Hao, knowing or believing the same to be stolen goods.

3. The appellant had applied for leave to appeal against sentence and conviction but failed to obtain leave to appeal against sentence. His application to appeal against sentence was not renewed. The present appeal is therefore in respect of his conviction only.

4. The prosecution evidence was this:

5. Two burglaries occurred on 18th April 1994 and 16th July 1994. The Rolex watch in the second charge together with other watches and two watch boxes were stolen during the April burglary. The diamond ring and the eight watches in the first charge were stolen in the July burglary.

6. The appellant was arrested on 6th August 1994. The police searched the appellant's home and found the two watch boxes stolen in the April burglary. After his arrest, the appellant made three statements to the police under caution and in these statements, he admitted he acted as a conduit for the sale of the watches stolen in the July burglary and for that he received $30,000. The transaction took place on 16th July 1994 in his flat but at that time, he already suspected that the goods were stolen goods. He admitted he had pawned the diamond ring stolen in the July burglary. The pawnbroker PW3 confirmed that the appellant pawned it on 24th July 1994. The appellant further admitted that he pawned the Rolex watch stolen in the April burglary in Macau on 18th April 1994. There was evidence from the Immigration Department that the appellant went to Macau on that date. The victims PW1 and PW2 identified the properties retrieved by the police were those stolen in the burglaries.

7. The appellant at the trial challenged the admissibility of his statements on the ground that the police subjected him to bastinado and various assaults to make him give his statements. He gave evidence to substantiate his allegations. The Judge found there were no such occurrences and his evidence was fabricated. The Judge also found no threats or violence were offered to the appellant at any stage during the interviews and the statements were voluntary.

8. The appellant's evidence was also that the diamond ring was given to him by a sub-tenant in settlement of arrears of rent. This as well as his explanation that in giving his statements he was then providing information to the police about the persons suspected of having committed the burglaries were rejected by the Judge.

9. On the evidence before him, the Judge found both charges proved and he convicted the appellant of both charges.

10. The first ground of appeal is that the Judge was wrong not to allow the appellant's lawyer sufficient time to prepare the defence case. The complaint is that at his trial, the appellant asked the Judge for leave to replace his defence lawyer because he was not in agreement with him. Leave was granted but the Judge only gave his new lawyer half a day to prepare the case. The appellant submits that being given insufficient time, his lawyer was unable to adequately represent him and the trial was unfair to him.

11. We have before us the transcript of the trial proceedings. According to this record, the trial commenced on 11th February 1999. The appellant was then represented by a Mr. Patrick Chu assigned by the Legal Aid Department. By the afternoon of that day, prosecution counsel told the Judge that he had concluded all the evidence by the civilian witnesses and would embark on police evidence which would include evidence on the taking of the statements. The record shows that when the trial resumed on 2nd March 1999, the appellant was represented by a Mr. C.W. Chung also assigned by the Legal Aid Department. A change of legal representation had taken place between the two dates. There was no record of Mr. Chung asking for more time before he could conduct the defence at the resumed hearing. On the contrary the record shows that Mr. Chung told the Judge he was ready to proceed with the voir dire and the grounds of objection to the admissibility of the statements were read. It is therefore abundantly clear that Mr. Chung did not complain of insufficient time to prepare his case. On the contrary he was able to proceed with confidence and there could be no prejudice to the appellant in so proceeding with the trial. This ground must fail.

12. Grounds two to five relate to the evidence of the police officers in the voir dire. Essentially the appellant submits that the inspector, PW4, had induced him to give certain information after he was arrested in his flat which the inspector denied. The appellant complained that the inspector's evidence that he did not speak to the appellant on his arrest was untrue because this evidence was contradicted by the evidence of other police officers who said the inspector did speak to the appellant. The evidence of the sergeant that he lost the note book used in the appellant's arrest, the appellant now says, was suspicious. The appellant also complains in these grounds that he was arrested at 5:00 a.m. and immediately thereafter he was subjected to questioning although he was still very tired. He complains that PW6, the statement taker did not give him sufficient rest before he was interviewed. Other complaints are that there were procedural irregularities in recording the statements from him in that the time recorded was wrong and that he was not given the choice of writing the statement himself.

13. These are all matters which the Judge in his Reasons for Verdict dealt with in some details, especially the conflict in the evidence of the inspector and the sergeant's evidence of the loss of his notebook. In respect of the sergeant's evidence the Judge said this:

14. The Judge also considered in detail the evidence of PW6, the statement taker, referring specifically to his evidence that he had recorded one of the two times in the statement incorrectly. The Judge nevertheless found that PW6 was truthful and there was nothing improper in the taking of the statements. These are findings of fact supported by evidence which the Judge had accepted. This court has no reason to interfere. Grounds two to five are of no substance.

15. The sixth ground relates to the evidence of the identification of the diamond ring by the owner. The appellant complains that the owner said that he identified the ring on 20th July 1994 which is inconsistent with the pawnbroker's evidence that the ring was pawned on 24th July 1994.

16. It is clear from his Reasons for Verdict that the Judge was aware of the inconsistency between the two dates. However the evidence was that the owner identified the ring "around the 20th something of July" and the Judge considered that this evidence was "sufficiently encompassing to cover the acknowledged pawning of the ring on 24th July and its retrieval by the police".

17. In our view the Judge was entitled to conclude on the evidence of "around the 20th something of July" that the identification by the owner of the ring was not before 24th July 1994. This ground also has no substance.

18. For the above reason, the appeal has no merits whatsoever and is dismissed. We order that three months of the time the appellant has spent in custody shall not be counted as part of his sentence.