HKSAR v. WONG KWOK LEUNG

DCCC 652/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 652 OF 2016

----------------------

----------------------

---------------------

Reasons for Verdict

---------------------

1.  The defendant faces two charges, one of theft and the other one of using markings on a vehicle with intent to deceive.

2.  The facts show that on 14 April 2016 the defendant was stopped beside a stolen car in Sha Tin. He was in possession of a key that could ignite the ignition block.  The car had been stolen in fact between 1 March and 4 March that same year.  The defendant says his presence there and possession of the key is innocent.  The prosecution say that the court can infer his guilt in the two offences charged and that simply is the issue in this case.  By that submission the prosecution must concede there is no direct evidence of either of the two charges.

3.  The facts of the case are not generally disputed and they are as follows: 

Mr Lee Wing Tak, PW1, was a car dealer and learned from another car dealer, Mr Wu Kwok-kam, PW3, that a car owner, Mr Ng, PW2, was going to sell his motor vehicle, namely a private car with chassis numbers agreed bearing a registration mark of SS5980. That is referred to as “the car” after this. On 22 February 2016, PW2 sold the car to PW1 through PW3 for some $6,500 and PW1 received from PW2 two keys for that car. On 1 March 2016 PW1 parked the car near a lamppost in Pat Heung on Kam Po Road and secured the car and engaged the locks. On 4 March 2016 he returned from China and found the car was missing. A report was made to the police all together. That is the dates between which the theft is alleged to have occurred and that is the theft charged in this case.

4.  We now move to 11 am on 14 April.  PC9961 who is PW4, arrived at a lamppost which is designated in Hin Tin Street in Sha Tin to conduct surveillance after locating the car, that is the stolen car, at that location.  His evidence was that some offence had been committed in relation to the parking of the car.  PW4 observed the condition of the car and found the number plates at the front and rear of the car bore a registration of TU796 but the driving permit under the windshield showed a registration number of SS5980.

5.  Around 3 pm on that day, PW1 arrived at the location where the car was found.  He confirmed the car found at Hin Tin Street was the missing car belonging to him.  He checked the engine number and chassis number of the car.  He attempted to use his original keys to start the car and failed.  He used his keys to open the doors of the car and they could be unlocked by his keys.  There was a prised ignition cylinder inside the cabinet near the driver’s seat that was seized as an exhibit.  A vehicle search was conducted. A certificate of the vehicle registration document showed the registered owner was PW2 but the official registration SS5980 was the official registration of the car and the chassis number was shown and there is no registration mark TU796 registered with the Transport Department.  Those are the basic facts that were in agreement but the other facts were basically agreed.

6.  The police officer who in fact arrested the defendant was called.  His evidence was not substantially challenged.  He found the driver’s door on the right front was unlocked, this is as described by PW4 in the facts.  The three passenger car doors were locked.  He found prised marks on the ignition cylinder next to the steering wheel.  They could be seen in photographs.  He continued, as he said, guarding the car.  He saw the defendant come to the car and walk towards the driver’s seat of the car bending his body as if to open the car.  The police officer decided to intercept the defendant before he was able to use his key or before the defendant entered the car.  He held a bunch of keys in his left hand.  Those keys were later seized and found to be capable of igniting the ignition of the vehicle.  When the police officer asked the defendant what he was doing here he said “I am here to guard the car for others”.  The keys were seized, inserted into the ignition and found that it could turn the ignition. 

7.  The defendant was then cautioned and the defendant’s answers under caution were also admitted into evidence. Essentially they say the following:

He said, “The car is not mine. Ah Fai asked me to come over to help him to take care of the car sometime after six this morning. I am now awake so I come over to take care of the car for him”. He answered further as follows: “I came to know him when I played ball at Hin Kin. I have known him for many years. I don’t have his phone number and address”. He was shown the car key and car anti-theft remote control seized from his left hand. He said, “Well just now I intercepted you, you have a car key in your left hand, do you have any explanation?” and the answer was, “Ah Fai Sir put it in my letterbox and asked me to get it for taking his car”. The matters were later put back to him again and he said, “Ah sir, nothing to do with me. Fai Sir asked me to help him to take care of the car. I have never driven the car” and all this was admitted into the evidence.

8.  It was established in cross-examination of PW4 the defendant was in fact carrying his breakfast at the time.  The witness appeared to say that he inferred that the defendant was going to open the car door with the key, however, it was established that the car door that he was supposed to be attempting to open was in fact open in any event, which would suggest that the defendant was not aware of the state of the vehicle in terms of it being locked.  The reason why the car had been looked at was established by PW5 which was the car was parked outside a refuse station and it was blocking or obstructing others.  Now that was in essence the prosecution case and it can be seen that in essence again there is little dispute on the evidence.

9.  The defendant gave evidence in this case.  His evidence was in similar terms to the record made in the record of interview. He said that in the early morning of 14 April 2016 he received a telephone call from Fai Sir.  He lives near his house and he is a “kai fong”.  He first met him several years ago when he played ballgames in a ball court near his home. He met him playing basketball.  He told me, that is the defendant, that he had something to do and he had driven a car “at downstairs of my house and he asked me to guard the car for him for a while.  A friend would come and take the car.  I told him”, the defendant said, “I was sleeping so I asked him to put the car key at my letterbox.  The key was put in the letterbox”.  The defendant said “Eventually I got up and I went out to buy breakfast, I did so.  I took the car key from the letterbox and went and bought breakfast”.  Then he went to the car to look at it to see if there were any problems.  “When I walked to the side of the car”, he says, “a cop approached me.  He said ‘What are you doing here?’  “I explained to him” in the same terms as his evidence.  He said, “When the policeman came I was at the right side of the car about one or two steps away.  I was looking at the car.  I was holding the key in my hand.  I had not tried to use the car key”.  He said, “When I went to the car around one to two days before the incident, Fai Sir asked me out to play ballgames.  He drove me my house by the car.  I was seated next to the driver’s seat.  I touched the car door, the door opening mechanism”.  This is confirmed by another agreed aspect of the evidence which was the defendant’s fingerprint was found on the passenger side door opening mechanism.

10.  The prosecution challenged the defendant’s account in court.  It supported the charge of theft, the prosecution say, that the inference can be drawn from the defendant’s possession of the key combined with the fact of the theft of the vehicle and the alterations to the vehicle whereby a new ignition block had been acquired, new number plates had been acquired and the fact that the defendant was in possession of the key to this car.  These facts combined with the fingerprint which show the defendant had been inside the vehicle previously to the time of his arrest, combining this with the rejection of the defendant’s account as being unbelievable would lead the court to the irresistible inference that the defendant had stolen the car between 1st and 4 March 2016, or they say or subsequently by asserting control of the vehicle.  I note that is not how the matter is charged in the allegation of theft. 

11.  Alternatively, were the charge of theft not to be established, the possession of the key and the defendant’s admission that he was to guard the car would show the defendant at least assisted in the retention of the vehicle on 14 April 2016 and that the other matters raised could lead to the irresistible inference that the defendant knew or believed the vehicle to be stolen at that time.  They say that accordingly the alternative charge is made out on the evidence.  They say if either of these alternatives are made out of course the defendant would then be equally guilty of the 2nd charge that he faces.

12.  The defence say this: That given that a long period of time has elapsed from the admitted theft of the car to the point where the defendant was found with the key, given that the locations were also geographically distant and separate, that what is in effect evidence of a simple possession of a key that would ignite the engine could not of itself be used to draw an irresistible inference that would lead to a conviction for theft.  All that can be established, they say, is the defendant had putative control of the vehicle, there are many more elements to be shown in a charge of theft.  It simply, it was said, it is not the sole available reasonable inference that could be drawn.

13.  Furthermore, although the defendant had been in the car earlier, his explanation of being a passenger was in fact borne out by the location of the fingerprint, the independent evidence in the case.  That the alterations to the car including the new number plates and the marks of prising on the ignition could not be attributed to be known by the defendant as it was not established or could not be established in evidence that he had ever been in a position to drive the vehicle or been in the driver’s seat of the vehicle or been in a position to check the vehicle licence with the vehicle registration plates.  The possession of a key to the vehicle which was, they say, the only real evidence against this defendant prior to him entering the vehicle was insufficient, furthermore, to save the deficiencies as applied to the charge of theft and the alternative possible charge of handling stolen goods and the 2nd charge on the indictment.

14.  I had to make some conclusions of fact in relation to this case even though the majority of the evidence was agreed.  My findings of fact are predicated upon the evidence which was unchallenged.  The only real finding of fact needed was an assessment of the reliability and credibility of the defendant’s explanation offered at the scene and in the caution record.  The car we know was stolen between the 1st and 4 March in Pat Heung.  The prosecution’s primary allegation is the defendant was the person who stole it on those dates.  The car was found on 14 April, that is over one month later in Sha Tin.  The ignition had obvious marks of prising.  The ignition block had been changed.  The vehicle licence and the number plates were different from each other.  The defendant was stopped with a key to the new ignition block on his way to the car.  The driver’s door was open, the other door was locked.  The defendant’s key could not unlock the other three doors.

15.  The defendant’s fingerprint was found on the passenger’s seat driver’s door opening mechanism.  This showed he had been in the car prior to the time of his arrest.  It could only establish his presence in the front passenger seat at some point prior to his arrest.

16.  The remaining evidence was a need to assess the reliability of what the defendant had told me which echoed the explanation given to the police on his arrest.  Naturally there is consistency there. However, I did not place any reliance upon his explanation about how he had come into possession of the key.  I found his evidence about Fai Sir unreliable, it contained too many questionable assertions for it to be relied upon.  He still could not even in court volunteer to the court where Fai Sir lived, his actually address, even though they had been “kai fong’s” apparently and played ballgames together.  They lived in the same place.  Fai Sir, on D1’s account, lived nearby and Fai Sir also knew where the defendant lived because he was supposed to have dropped off the keys but apparently this was not a vice-versa situation, the defendant not knowing where Fai Sir lives.

17.  The defendant did not in fact indicate what “guarding the car” consisted of or constituted.  Was he to move it?  The inference that could possibly be drawn is that the vehicle was not securely parked and something had to be done about it but I think that is as far as the evidence takes it. 

18.  Also there was no limit as to how long the defendant should be guarding this car.  This is unusual especially as it was a working day for the defendant.  I found the defendant’s account of how he came to be in possession of the key to be unreliable and I rejected it.  However, I did note that the defendant’s assertion that he had been a front seat passenger in the car was supported by the fingerprint evidence. 

19.  Thus after this exercise I was left again effectively with the prosecution case plus an explanation for the defendant’s fingerprint in the car.  What does that evidence of the prosecution actually establish against the defendant at the time he was arrested?  It establishes simpliciter that the defendant had a key that could drive, possibly drive the car in his possession at a time when he was near to the car and possibly preparing to enter the vehicle.  I believe from that I conclude the defendant was in control of the vehicle.

20.  The charge of theft requires a number of elements to be established beyond a reasonable doubt.  It acquires appropriation of property with the intention of depriving the owner of that property and it requires that that be done dishonestly.  All those elements have to be proved beyond a reasonable doubt.  However, in this case as the defendant had not tried to enter the vehicle it would appear from that I could not attribute to him knowledge of the fact that the key he possessed could not unlock any of the other doors in the vehicle or that the defendant was aware of the state of the ignition block.  What is established is that the defendant was in a position where he could possibly drive the vehicle and therefore assert control of it.  That is a fact that can be established in my view but what other inferences could be drawn from that proved fact?

21.  I could also conclude the defendant had been present in the car previously in the front passenger seat.  However, this does not permit me to find as a fact or to infer as a fact that the defendant must thereby be aware of the prising to the ignition or the dissonance between the number plates and the driving licence shown on the window.  This is not the only available inference that could be drawn from that fact.  It is possible for a front seat passenger to be unaware of the marks or the difference between the number plates and the driving licence.

22.  The facts that incriminate the defendant in the charge of theft and also the 2nd charge were his possession of the keys simpliciter; the fact that the key could possibly be used to drive the car; combined with his admission he was guarding the car and the fact the defendant had been in the car earlier.  I on adding those factors together do not consider that this is sufficient to establish as an irresistible inference that the defendant stole that car on the 1st to 4 March 2016, too long has gone by since that time, or that the defendant stole it at any other time.  It appears to me the inference cannot be drawn that the defendant would have intended to deprive the owner of that car in any event after such a period of time had elapsed.

23.  A later appropriation is not charged within the time period and again in any event I do not think the prosecution case as charged can be established beyond reasonable doubt on the simple facts that have been proved.  In my view the charge of theft cannot be proved beyond reasonable doubt.

24.  However, I do need to consider the alternative possibility of a conviction for handling stolen goods on the basis that it is admitted that the car in fact was stolen and it would appear on the evidence that the defendant by his possession of the key and his admission that he was going to guard the car, the defendant must have assisted in the retention of the vehicle which had been stolen.  It also needs to be proved to the court beyond a reasonable doubt, the court must be satisfied so that it is sure that the defendant knew or believed the car to be stolen when he took possession of the keys and went to guard it.

25.  The case against the defendant on this alternative charge by the evidence on this particular point to that alternative charge suffers from the same deficiency as the theft case.  The defendant has not yet entered the vehicle.  The prising to the ignition, the difference between the licence on the window and the number plates cannot be attributed as knowledge to him and without that knowledge the evidence does not establish that the defendant must have known or believed that the vehicle itself had been stolen, that the indicia effective inside the vehicle itself were not available to be attributed and inferred as knowledge in the defendant’s mind when he simply had possession of the keys outside the vehicle.  Furthermore, presence in the vehicle inside the passenger seat does not permit me to establish this either.

26.  The evidence in my view shows at best that the defendant might have known that it was stolen, however, this is insufficient to establish the charge beyond a reasonable doubt where I must be satisfied that I am sure that he knew it was stolen.  Therefore the defendant must also be acquitted of this alternative charge.  It appears to me that the 2nd charge stands or falls with the 1st charge.  As I have said, the 1st charge must fail so both charges will be dismissed as against the defendant.