HKSAR v. CHENG CHUN MING

CACC 356/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 356 OF 2000

(ON APPEAL FROM DCCC NO. 573 OF 2000)

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REASONS FOR JUDGMENT

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Wong JA (giving the judgment of the court) :

1. On 28 June 2001, we granted leave to the applicant to appeal against his conviction but applied the proviso and dismissed the appeal. We also dismissed his application for leave to appeal against sentence. We indicated that we would give our reasons and this we now do.

2. The applicant was convicted after trial before Judge Whaley in the District Court of one charge of handling stolen goods and sentenced to imprisonment for two years and eight months. He sought leave to appeal against both conviction and sentence. The undisputed evidence was that Mr. Robert Wood bought a brand new motor vehicle, a Subaru Impreza in 1997. It was registered in his name and he used it continuously until 13 September 1999 when he found the vehicle which he had parked in a parking space in Sai Kung the night before, missing. He made a report to the police. Mr. Wood attended a motor car show in the New World Centre in Tsim Sha Tsui on 17 October 1999 and saw one vehicle which he identified and which was subsequently confirmed to be his missing car. It was also not in dispute at the trial that the applicant had driven and delivered this car to PW2, a used car dealer at the motor car show on 11 October 1999 and asked PW2 to display the car for sale on his behalf.

3. The applicant gave evidence which was disbelieved by the judge. His case was that he had innocently purchased the car from Hui Siu Keung, another used car dealer for the purpose of reselling it for a profit.

4. The issue at the trial was, as the judge framed it, "what the applicant's state of mind was when he received and handled the vehicle and, in particular, did he know or believe at that time this was a stolen vehicle?".

5. The Perfected Grounds of Appeal contained these complaints :

1. In evaluating the explanation given by the applicant for the possession of the stolen vehicle the learned judge had erred in taking into account "the implication of the applicant making his choice to remain silent in the circumstances" when the circumstances were :

(a) that the applicant was interviewed by the police on those occasions under caution; he remained silent as he had been accompanied by his lawyers and he had been advised by the lawyers to remain silent;

(b) that during one of the interviews, the applicant refused to explain to the police various documents shown to him (allegedly given to the applicant by Hui Siu Keung from whom the applicant claimed that he had bought the vehicle from) and

(c) that when the applicant was under caution, he has a right to remain silent.

2. The learned judge erred in taking into account the failure of the applicant, on the 6 occasions when he answered and extended his bail at the police station and saw Hui (who was similarly answering bail there), to tell the police that Hui was the one from whom the applicant had bought the car from, and the failure of the applicant to ask Hui to confirm to the police his innocence.

6. In relation to the complaints in 1(a) (b) and (c), the judge dealt with them in his Reasons for Verdict at p.15Q to T and p.16 A-J. At p.15Q to T, he said :

"The defendant was, of course, perfectly entitled to remain silent when he was cautioned by the police and questioned by them. The right to silence is a long established and important right to anybody who is accused of having committed a crime. Indeed, the defendant said his lawyer specifically advised him of that right and that there was no need for him to say anything or offer any explanation to the police."

At p.16A-J, he continued :

"Notwithstanding that it was his right to remain silent, this, of course, does not mean that a court cannot, should not, assess the implications of the defendant making the choice to remain silent in the circumstances.

It is strange in my view, that when the defendant had, according to him, a perfectly good and straightforward and simple answer to the suspicions of the police, he did not at any stage reveal that answer to them. He was interviewed on four separate occasions under caution. He was cautioned specifically that he was suspected to have handled this vehicle, knowing it at the time to be a stolen vehicle, or believing it to be a stolen vehicle, yet he never at any time told the police that he was the innocent purchaser of this vehicle from Hui. During at least one of those interviews the police showed him the documents which he had obtained from Hui and given to PW2, and the defendant was asked if he wished to offer any explanation for the documents."

7. The complaint in ground 2 arose from a passage at p.17A-G of the Reasons for Verdict where the judge said :

"It is even more strange when it is borne in mind that the defendant was released on police bail and he went to the police station on six occasions, I understand, to answer and extend that bail, on most if not each of those occasions he saw Hui in the police station, who was similarly answering his bail, he having also been released on bail on similar charges of theft or handling of stolen vehicles. Yet, it never occurred to the defendant to tell the police that this was the man from whom he had innocently purchased the vehicle, nor occur to him to insist that Hui, who was with him there in the police station on these occasions, should confirm that fact to the police."

8. Although the Perfected Grounds of Appeal were divided into paragraphs, the issue, and the only issue, was whether the applicant's right to silence had been infringed. Mr. Hung, who appeared for the applicant before us, submitted that the passages quoted effectively rendered nugatory the applicant's right to silence and the judge was merely paying lip service to this very important principle when he talked about the right. In the course of argument, both Mr. Hung and Miss Sin for the Respondent referred to the decisions in R v Chan Kung-ling [1992] 1 HKCLR 43 and R v Gilbert [1978] 66 Cr. App. R. 237. R v Chan Kung-ling was a decision of this Court, differently constituted, where Macdougall JA (as he then was) said at p.47 :

"It is in our opinion now clearly established by decisions of the Court of Appeal and of the Court of Criminal Appeal that to invite a jury to form an adverse opinion against an accused on account of his exercise of his right of silence is a misdirection."

Gilbert was a decision of the English Court of Appeal, and in delivering the judgment of the Court, Viscount Dilhorne said at pp.234 and 235 :

"We regard the present position as unsatisfactory. In our view it may not be a misdirection to say simply "This defence was first put forward at this trial" or words to that effect, but if more is said, it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercise his right of silence, in which case a conviction will be placed in jeopardy."

It should be mentioned that in both cases the Court applied the proviso and dismissed the appeals, having been satisfied no miscarriage of justice had actually occurred. There is another matter to be borne in mind and that is the position in England with regard to this aspect of the law is different from Hong Kong as a result of the provisions of s.34 of the Criminal Justice and Public Order Act 1994. It was noted by Stuart-Moore VP in a decision of this Court in HKAR v Del Carmen [2000] 3 HKC 431, a decision neither Miss Sin nor Mr Hung had brought to our attention, that there is now a specific provision to deal with the 'effect of accused's failure to mention facts when questioned or charged'. It is to be noticed also that in the English code of practice for the interviewing of suspects (Archbold 2000 at para 15-234) the caution given by a police officer is in these terms :

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence".

But it must be remembered that this is not the law in Hong Kong. We will return to Del Carmen at a later stage.

9. There can be no doubt that the judge made extensive comments on the fact of the Applicant's silence when he was interviewed or confronted by the police and drew certain conclusions from it. The important question to be asked is whether the judge had in fact relied solely on the applicant's silence to infer guilt and we are satisfied that he had not. This is evident from what he said at p.21B-D of his Reasons for Verdict :

"The inference arises irresistibly from the evidence, as a whole, in my view, that the defendant knew at all relevant times that this vehicle which he received and handled was a stolen vehicle."

There is ample reason and an abundance of other and independent evidence to justify the judge's conclusion. He had seen the applicant and observed his demeanour in the witness box and found that the applicant's evidence was a tissue of lies. The applicant admitted that he had lied when he had said that he only got to know Hui in August or September 1999 and that the transaction in question was the first transaction when in fact he had known him much earlier and had previous dealings. The documents which he delivered to PW2 and those the police seized from his home were false and could not have been genuine. Similarly the purported written agreement dated 25 September 1999 under the letterhead of Kui Cheung Motor Parts Company had no reference to the chassis number or engine number of the vehicle. Being an experienced second-hand car dealer, the applicant could not have failed to notice all or any of the false or missing particulars in the documents relating to title and ownership.

10. We have indicated earlier that we would come back to the decision in HKSAR v Del Carmen which is a very similar situation to the present appeal. The headnote reads :

"The applicant was convicted of trafficking in cocaine when she caused a suitcase containing the drugs to be brought into Hong Kong International Airport. The prosecution contended that she knew the contents of her suitcase. After the applicant cleared customs, she failed to collect her suitcase but went straight to a hotel. Later a man called the airline and as a result, customs officers disguised as airline officials delivered the suitcase to the applicant. The drugs were found packed into paper boxes to give the appearance of being packets of coffee. On one box of filter papers in the suitcase, the applicant's fingerprint was found. On arrest, the applicant maintained her right of silence. At trial the applicant admitted having control over the suitcase from the start of her journey in Bolivia but said she believed the packages in her case contained samples of coffee to deliver in Hong Kong. She said on a stopover in Tokyo a stranger had said something that led her to think her suitcase might contain contraband, and that was why she did not pick up her suitcase from the airport. She testified that a man was called 'Taby' had phoned her and persuaded her there was nothing wrong with the contents of the suitcase and she therefore accepted delivery of the suitcase. On appeal, it was argued that the judge had erred in her summing up on the applicant's exercise of her right to silence. It was said the judge's direction amounted to an invitation to the jury to form an adverse opinion about the credibility of the applicant's evidence as a result of her not having disclosed the totality of her defence at the first available opportunity. It was submitted this amounted to an impermissible attack on the credibility of the applicant. The respondent submitted that the judge gave a clear direction that the jury could not draw an inference of guilt from the applicant's exercise of her right to silence and that the judge explained that the relevance of the applicant's silence was only to the credibility of the applicant's first account of events during her trial.

Held, granting leave to appeal, but dismissing the appeal :

(1) Whether or not the judge had fully and fairly explained to the jury that no adverse inference could be drawn from the defendant's exercise of the right to silence in itself, the fact that the defence had only emerged at trial for the first time was something which any sensible jury would be unlikely to ignore when deciding what weight to give an explanation. However, common law precedent was generally opposed to permitting a judge to make any comment which invited the jury to use this feature of the evidence in this way. R v Cho Chak Por & Ors [1983] HKLR 174, R v Coombs [1983] NZLR 748, R v Hung Wai Hung [ 1990] 1 HKLR 431 and R v Petty & Maiden (1991) 55 A Crim R 322 considered (at 438H-443D).

(2) In this case, the judge directed the jury that they could use the applicant's silence on material aspects of her defence as factors they could 'take into account in assessing the credibility of the account that she gave (in evidence at her trial)'. This was inviting the jury to take an adverse opinion of the applicant's evidence (at 443E).

(3) While there was sympathy for the judge's motives in seeking to limit the extent to which the jury could use the evidence about the applicant's silence solely to the issue of credibility when summing up, in the absence of legislation permitting such a direction, the judge went further than permitted and thereby misdirected the jury (at 443G).

(4) No miscarriage of justice actually occurred as a result of the misdirection. Bearing in mind that there was strong circumstantial evidence, the jury would inevitably have come to the same conclusion in spite of the misdirection. Leave to appeal would be granted, but the proviso in s 83(1) of the Criminal Procedure Ordinance (Cap 221) would be applied and the appeal would be dismissed (at 443H-444A)."

Towards the end of his judgment, Stuart-Moore, VP put the matter in perspective. He said at p.443 :

"Whilst common sense might dictate that the failure on the part of a defendant to reveal a defence at an opportune moment prior to trial is something to be weighed in the scales when determining how much weight to attach to a defence first raised at trial, it seems that common law precedent is generally opposed to permitting the judge making any comment which invites the jury to use this feature of the evidence in this way.

In the present case, the judge directed the jury that they could use the applicant's silence on material aspects of her defence as factors they could 'take into account in assessing the credibility of the account that she gave (in evidence at her trial)'. This, it seems to us, was inviting the jury to take an adverse opinion of the applicant's evidence.

That a judge may not comment, even to the limited extent to be found in the present case, seems to us to be far from satisfactory. The jury was entitled to know that the applicant had remained silent after her arrest and they would inevitably have drawn their own conclusions about the story she told for the first time in her evidence at trial. All the judge had sought to do was to limit the extent to which the jury could deploy the evidence about the applicant's silence, by restricting their consideration of it to the sole issue of credibility. To that extent, while having every sympathy for the judge's motives in directing the jury in this way, we have reluctantly come to the conclusion, in the absence of legislation permitting such a direction, that the judge went further than she was permitted to go and thereby misdirected the jury. However, we are satisfied that no miscarriage of justice has actually occurred as the result of this misdirection. We have borne in mind that this was a case based upon strong circumstantial evidence and, putting aside the misdirection, we are satisfied the jury would inevitably have come to the same conclusion."

11. The authorities are clear. In commenting, not only extensively, but also adversely, on the Applicant's silence when he was interviewed or confronted by the police, the judge had clearly overstepped the prohibited boundary and thereby committed an error of law. Be that as it may, there remains, in our view, ample evidence to justify the judge to come to the conclusion that he had reached. Notwithstanding the misdirection, we are satisfied that no miscarriage of justice has actually occurred and this is a proper case for us to exercise our discretion to apply the proviso pursuant to s. 83(1) of the Criminal Procedure Ordinance (Cap. 221) and accordingly we would grant leave to appeal, and treating the hearing as the appeal, we dismiss the appeal.

Sentence

12. The Applicant also applied for leave to appeal against his sentence of two years and eight months imposed by the judge.

13. It was submitted on his behalf by Mr. Hung that this was an isolated occasion that the offence was committed by a casual or opportunistic handler involving property of less value than other major theft or handling of vehicle cases. Furthermore, the Applicant had a clear record, good working and family background. But all these factors had been fully taken into account by the judge as it is plain from his sentencing remarks at p.23C-P where he said :-

"The value of the vehicle at the time of its theft was approximately $158,000 and it has, of course, been recovered.

The defendant is 30 years old and he has a clear record. The background report from the probation officer is a reasonably favourable report. There is nothing to suggest that the defendant was involved in any way with the theft of the vehicle. Indeed, on the evidence there is no reason to believe that this was other than an isolated theft of a motor vehicle, by whoever stole it, which the defendant subsequently handled. In other words, it was a casual or opportunistic handling on his part.

Nevertheless, I do take into account that a motor vehicle is a substantial and an important asset that individuals own, and the theft of it causes great inconvenience as well as financial loss. People like the defendant who subsequently dispose of such stolen vehicles do, directly or indirectly, encourage the theft of the vehicles.

I have adopted a starting point of 3 years' imprisonment after trial, and of course, this sentence is being imposed after trial. However, in view of the defendant's clear record and a reasonably favourable report, I discount the sentence by 4 months, which results in a sentence of 2 years and 8 months' imprisonment."

14. We are unable to say that the starting point of 3 years' imprisonment adopted by the judge is in any way wrong or manifestly excessive. Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime. We respectfully echo the words of Macdougall VP in R v Tang Hing Wong CACC 476/1994. That case was concerned with two thefts of motor cars. He said at the ultimate paragraph of the judgment :

"...... we think that the overall sentence of two years' imprisonment for these offences was unduly lenient. It is a notorious fact that car theft, particularly that of luxury cars, has become increasingly prevalent. Those who commit such offences must be severely dealt with as a deterrent to others. Despite the appellant's understandable sense of grievance we have come to the conclusion that even after taking into account his assistance to the police the overall sentence could not properly have been less than two years' imprisonment. In our view, it would be wrong to reduce these sentences. We therefore refuse the application."

It is to be noted that the sentence was imposed after a plea of guilty.

15. The application for leave to appeal against sentence is therefore dismissed.