THE QUEEN v. SUEN TIM PING AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1115 of 1991

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BETWEEN

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J U D G M E N T

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1. On the 5th October 1991, the appellants were convicted after trial of (a) attempted theft; and (b) attempted taking conveyance without authority.

2. They were each sentenced to 18 months imprisonment to run concurrently on each charge. They now appeal against both conviction and sentence.

3. The vehicle referred to in the (b) charge was a medium goods vehicle, Registration No. EL6164 which had been parked at Tsing Yi Pier near Hoi Yuet Garden construction site, Tsing Yi, on the evening of the 1st May 1991. The allegation was that the appellants attempted to take this conveyance during the early hours of the 2nd May 1991. So far as the 1st charge is concerned, the allegation was that at the same time they did attempt to steal from that medium goods vehicle.

4. The facts are comparatively simple. The 1st prosecution witness was the driver of the vehicle who testified that he parked it on the evening of the 1st May and that when he left it it was locked and secured.

5. The 2nd and 3rd witnesses were police officers who happened to pass and who, according to them, saw the two appellants by the side of the goods vehicle and saw one of them making use of a hard object to prize open the door to the cabin on the near side. The 3rd prosecution witness identified the 2nd appellant as the man who prized open the cabin door. He also identified the 1st appellant as the one who boarded the cabin first and sat on the driver seat whilst the 2nd appellant got in and closed the door and they looked around the cabin and touched all the things inside it, and the 1st appellant even bowed his head and appeared to be searching for something under the steeling wheel. The 2nd prosecution witness described their actions in the cabin as "searching and ransacking" the cabin. He was asked what movement he saw which made him believe this and replied that one of them sat on the passenger's seat and searched the things in the dash compartment. They bent down to search for the things inside the cabin, one of them sat on the driver's seat, the other sat on the passenger's seat, bent down and then straightened up as did the one on the driver's seat.

6. These two police officers, their suspicions aroused, approached the vehicle and the two appellants started running away. After a chase of about 3 minutes, both of them were arrested.

7. In the cabin of the goods vehicle, two screwdrivers were found which later turned out to be not the property of the driver nor had they been left in the goods vehicle at the time he had parked it.

8. The police also found a broken padlock used to secure the side door of the vehicle and a pair of gloves which had been discarded in a flower garden not far from the vehicle. It was clear that the padlock had been used to secure the goods compartment of the vehicle which contained a considerable amount of PVC leather material.

The grounds of appeal against convictions are :

"1. The Learned Magistrate failed to consider adequately the discrepancies between the evidence of PW2 and PW3 concerning the appellants' route of escape;

2. The Learned Magistrate failed to consider adequately the discrepancy evidence of PW2 who alleged one of the appellants was searching the dark compartment while PW1 gave evidence that there was no sign of searching;

3. There was insufficient evidence for the Learned Magistrate to convict the appellants on the 1st Count of theft."

9. It is convenient for me to take the first two grounds together because they both relate to alleged discrepancies in the evidece. There is no doubt that there was a considerable difference between the drawings of these two witnesses as to the escape routes. Mr Paul Tse, who represents the appellants on this appeal, submits that there are very big differences and should have affected the magistrate's opinion on the credibility of these witnesses.

10. Miss Mahomed, for the Crown, argues that the magistrate had addressed his mind to these discrepancies and bearing in mind that the drawings were just rough sketches and that the route of escape was roughly in the same area, although the shapes of the drawings were different, the discrepancies were really rather slight. Furthermore, no other discrepancies between PW2 and PW3 were complained of.

11. Although both PW2 and PW3 had testified to the effect of they saw movements which indicated that the appellants had been searching in the cabin, Mr Paul Tse draws my attention to the evidence of the driver that when he went back to the scene at 5 am to inspect the driver's cabin, he did not detect any sign of it having been searched in that everything was tidy.

12. I do not consider that there is anything in these first two grounds of appeal. The magistrate certainly addressed his mind to the subject of discrepancies and having seen the sketches drawn by the witnesses, I cannot say that he reached the wrong conclusion. As the magistrate quite rightly pointed out they were the sort of mistakes which could be made by honest witnesses.

13. So far as the 3rd ground is concerned, Mr Paul Tse argues that it is the Crown's allegation that the 2nd appellant had used a screwdriver in prizing open the cabin door and that the two screwdrivers found in the vehicle were the only two instruments which were found at the scene. However, the police also found the broken lock and the gloves beside it in a flower-bed not far away. The position, he says, is therefore that the padlock had been broken and discarded but there was not evidence to indicate who did that, or what instrument had been used to break that padlock. He submits that the two screwdrivers, which were the only instruments found at the scene which could, on the evidence, have been connected to the appellants, could never have been used to break the padlock. The magistrate had not considered how the padlock could have been broken without instruments other than the screwdrivers. There were no signs on the screwdrivers and there must therefore be a doubt about the breaking into the goods part on the vehicle by the appellants. Mr Tse argues that putting the Crown evidence at its highest, the evidence against the appellants only amounted to the fact that two persons had been seen to break into the cabin and search in the cabin. Whilst this would have been sufficient for a conviction on a tempering with a vehicle charge, it was not sufficient for a conviction on either of the charges levelled against these appellants.

14. Miss Mahomed criticizes Mr Tse's contention that the screwdrivers could not have been used to break the padlock. She argues that neither she nor Mr Tse are car thieves and that there are other ways of opening padlocks other than by using a heavy saw. The evidence was irresistible that it was the appellants who had broken into the goods part of the vehicle and the discarding of the gloves with the padlock strengthened that inference because the appellants no longer needed the gloves once they had got into the cabin and were going to drive the vehicle away. She argues that the magistrate addressed his mind to the circumstances and putting everything together, was satisfied beyond reasonable doubt of the guilt of these two appellants on both charges.

15. Having examined the padlock, it is clear that it was not cut with a saw but was broken by the application of great force. It would appear that at least one of the screwdrivers had been used to break into the cabin part of the goods vehicle, and yet no apparent damage to the screwdriver was visible to the naked eye. I do not think that it is conclusive, as Mr Tse suggests, that these screwdrivers could not have been used to force open the padlock by breaking it.

16. At the close of the Crown case, the magistrate held that there was a case to answer, there being no submission otherwise. At this stage, both appellants elected to remain silent and called no witnesses. The magistrate was therefore left with only the prosecution evidence upon which to decide the case. In a short judgement delivered at this time, he said -

"I accept the Crown witnesses as witnesses of truth. I find that the defendants were in the vehicle at a time when they had become aware of the contents of the rear tray. I find that the only reasonable inference to be drawn for all of the evidence is that when they were located their intention was to remove the vehicle and it's contents from the scene."

17. He reiterated this in his Statement of Findings saying :

"While as indicated at transcript P.103-105 there was no direct evidence that the defendants had earlier also broken into the rear tray, I was entirely satisfied that they would not have undertaken the risk involved in breaking into the cabin unless they had first attempted to check the contents of the vehicle. If they were not previously involved in the breaking into the rear tray then such a check would have revealed the contents of same and the fact that with this knowledge they then broke into the front cabin was circumstantial evidence from which only one inference could b2 drawn; - that being that their entry into the front cabin was undertaken with the intent of removing the vehicle with a view to the theft of its contents."

18. In my judgment, on the evidence which had been accepted by the magistrate, there was an irresistible inference that the appellants had committed both offences. There would have been no point in breaking into the cabin of a goods vehicle in these circumstances if it had not been the intention of the appellants to drive it away with the contents inside. Their movements at the scene were entirely consistent with an attempt to start up the engine of the goods vehicle.

19. For these reasons, the appeal against conviction is dismissed.

20. Both appellants appeal against their sentences on the basis that they are too severe.

21. Mr Tse stresses the fact that the appellants had only been convicted of attempted offences and that nothing had been taken away or damaged, other than the padlock and the cabin door of the vehicle. Nobody had suffered a substantial loss as a result of their actions. He submits by reference to various cases that the proper sentence for taking away a vehicle should be 3 months imprisonment and suggests that for an attempted theft, a sentence in the range of 9 to 12 months would have been more appropriate.

22. Miss Mahomed argues that the sentences were appropriate in the circumstance of the case in view of the fact that both appellants had bad records of previous convictions.

23. There was evidence that the total value of the PVC leather inside the vehicle amounted to HK$125,000.

24. Despite the fact that the 1st appellant had five previous convictions, including one for robbery and one for handling stolen goods, and that the 2nd appellants had five previous convictions, including two of theft and one of handling stolen goods, he nevertheless wanted to find out more about the appellants before determining the length of sentence to be imposed. He therefore remanded both of them in custody for presentence reports.

25. Not surprisingly, probation was not recommended in either case and the magistrate duly passed the sentences of 18 months imprisonment.

In the Statement of Findings the magistrate says :

"The value of the vehicle and its contents was considerable and as I noted this type of offence is both serious and prevalent. The matter had been adjourned for presentence reports and these were unfavourable. There being no matter put forward in mitigation which I could properly consider, I determined that a sentence of 18 months concurrent for each defendant was appropriate. This was the least I felt I could reasonably impose upon each defendant."

26. Clearly, the magistrate was imposing a deterrent sentence. The purpose of attempting to take the vehicle was not for a joy ride but to steal its contents. I do not consider, in all the circumstances of this case, that the sentences were a day too long and the appeals against sentence are therefore dismissed.