HKSAR v. FAN CHI WAI

CACC 343/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 343 OF 2015

(ON APPEAL FROM DCCC NO. 207 OF 2015)

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J U D G M E N T

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1.  The applicant faced one charge of handling stolen goods, namely a motorcycle bearing registration mark RT4352, contrary to section 24 of the Theft Ordinance, Cap 210. He pleaded not guilty to the charge in the District Court but was convicted after trial before HH Judge Woodcock on 16 September 2015. On the same day, he was sentenced to 2½ years’ imprisonment for the offence. In addition, a 2-month suspended sentence for claiming to be a member of a triad society was activated in full, making a total sentence of 2 years and 8 months’ imprisonment.

2.  On 8 October 2015, the applicant filed a Notice of application for leave to appeal against his conviction and sentence.

The facts

3.  On 22 December 2014, Mr Vong Chi-peng (PW1) parked a motorcycle which had been provided to him in connection with his duties by his company, which dealt with lift maintenance, underneath a footbridge near Wan Tsui Estate Shopping Centre.  The rear tail box attached to the motorcycle had PW1’s company name printed across it, and contained his tools and belongings.  The motorcycle itself was worth about HK$40,000: his tools and belongings, about HK$5,000.  At about 9.30 am the following day, 23 December 2014, PW1 found that the motorcycle had been stolen, and accordingly made a report to the police at about noon.

4.  At about 10.30 pm on 24 December 2014, the police called PW1 and asked him to go to Chak Tsui House at Wan Tsui Estate, where he identified the rear tail box which had been removed from the motorcycle.  He was then taken to a bridge near Sau Fung House, where he identified the stolen motorcycle itself without its rear tail box, and confirmed the chassis number of the vehicle.  PW1 also confirmed that the motorcycle had been modified: it no longer needed a key to ignite the engine, having been replaced by an “on/off” switch.

The prosecution case

5.  Two police officers (PW2 and PW6) were on plain-clothes patrol separately near Fung Wah Estate on 24 December 2014, specifically looking out for vehicle theft activity.  At about 6.10 pm, PW2 saw the applicant walk into the area under the footbridge staircase where several motorcycles had been parked. There he saw the applicant use his right hand to touch the front part of a white motorcycle.  As a result, PW2 revealed his identity, whereupon the applicant turned to walk quickly away.  However, the officer went after the applicant and stopped him some distance away.  The applicant was taken back to where the motorcycle was.  By then, PW6 who had observed the above from a different position had arrived at PW2’s side and, while he guarded the applicant, PW2 asked the applicant whether the motorcycle belonged to him.  The applicant replied in the affirmative, whereupon PW2 searched him but was unable to find any key or driving licence.  The applicant insisted that the motorcycle belonged to him and explained that he had bought it from an unknown man.  The applicant showed the officers how to turn on the motorcycle with the switch.

6.  Thereafter, PW2 called the console to check the registered owner of the motorcycle, and was informed that it had been reported stolen.  The applicant was then arrested for taking a conveyance without authority.

7.  Under caution, the applicant insisted he had bought the motorcycle, and that a white helmet on the ground next to the vehicle also belonged to him.  The applicant also said that he had thrown away the tailgate box in the car park of Wan Tsui Estate.  The tail box was later found at the location stated by the applicant.

8.  The applicant was then handcuffed and taken by police vehicle to Chai Wan police station.  At the police station, the applicant refused to sign the post-recorded statement in PW2’s notebook.

The defence case

9.  The applicant acted in person during trial.  He did not challenge the fact that the motorcycle had been stolen on 22 December 2014 from Wan Tsui Estate.  His case was that the police had framed him for the offence and that none of the events alleged by PW2 and PW6 had occurred.

10.  The applicant said that on the day in question he was in the process of moving into a new flat and breaking up with his girlfriend.  He had gone downstairs to call and text her but she was not responding.  He was evidently not in a good mood when he came upon a white seven-seater vehicle parked in the car park with all the seats lowered.  He walked up to it and saw four people, including PW2 and PW6, lying down in the vehicle.  The applicant shouted and swore at them through the window.  Another officer (PW7) then alighted from the vehicle and revealed his police identity, pushing the applicant and asking him what he was doing.  They argued and swore at each other, and some mutual pushing and shoving ensued.  The other three officers then got off the vehicle and verbally abused the applicant.

11.  PW2 then handcuffed the applicant and arrested him.  PW7 said they would frame him for stealing the motorcycle.  The applicant said that no one had asked him any questions.

Reasons for verdict

12.  In her reasons for verdict, the judge thoroughly considered the respective cases for the prosecution and defence, the elements of the offence which the prosecution needed to prove, and the doctrine of recent possession[1].

13.  The judge accepted the evidence of the prosecution witnesses for the reasons she gave[2] and rejected that of the defence[3]. In particular, the judge did not believe that a man preoccupied with reaching his girlfriend would suddenly approach a vehicle of strangers and shout and swear at them without any provocation or reason.  Even after he knew they were police officers, he continued to argue and struggle with them.  She accepted that the applicant had told PW2 where the rear tail box was left, so that the police were later able to locate it.  She found that the applicant had said this in an attempt to legitimise his explanation that he had bought the motorcycle.  However, the tail box was incriminating evidence against the applicant, since it still had the company name printed on it when he discarded it and, even if he had paid for the motorcycle, he must have known it was stolen.  She considered the applicant’s explanation as to why the police should want to frame him to be far-fetched.

14.  As for the lack of CCTV and fingerprint evidence, the judge found that:

“The defendant also makes much of the fact the police did not retrieve CCTV near the car park. The police did not go to retrieve it. They thought there was no need. That is not fatal to the prosecution case. The same applies to the lack of fingerprint evidence on the motorcycle. Again, that is not fatal to the prosecution case.[4]”

15.  The judge found that the applicant’s evidence was untrue and a deliberate attempt to distance himself from his own wrongdoing by alleging misconduct on the part of the police.  She found that he knew the motorcycle had been stolen when he dishonestly received it.

Reasons for sentence

16.  In sentencing the applicant, the judge noted that the applicant had a number of previous convictions, including theft, robbery, trafficking in dangerous drugs, blackmail and claiming to be a member of a triad society.  She observed that there were no sentencing guidelines for the offence but that it should attract a custodial sentence.  Factors relevant to sentence included the value and nature of the stolen goods, and the sophistication in the handling of the stolen goods[5]. Here, the stolen goods were a motorcycle worth about HK$40,000, a not insignificant amount.  The vehicle had been modified.  The judge adopted a starting point of 2½ years’ imprisonment and decided to activate a current suspended sentence, which had been imposed 1 year earlier, in full.

Grounds of appeal

17.  In his Form XI, the applicant submits that he was not satisfied with his conviction as there was no cautioned statement, no fingerprint evidence, no DNA evidence nor any CCTV footage obtained.  He further complains that his sentence was excessive.

18.  In a letter to the court filed on 11 January 2016, the applicant avers that the evidence at trial consisted of his word against the police officers, but the judge had refused the applicant’s application to adjourn the case to obtain CCTV footage of the car park which would have been objective evidence to assist the court in deciding his case.  In the circumstances, the trial had been unfair.

The respondent’s submissions

19.  Ms Catherine Ko, on behalf of the respondent, submits that the case ultimately turned on the credibility of the witnesses, and an appeal court will have to act with the greatest caution before interfering with the judge’s findings as to credibility, where the judge has seen and heard the evidence first hand.

20.  As to the failure to obtain CCTV, fingerprint and DNA evidence, the respondent submits that there was no suggestion that the police deliberately failed to obtain, or that they destroyed, evidence favourable to the applicant; nor was there suggestion that without the CCTV the applicant was so prejudiced that a fair trial was not possible.  As the case depended on the credibility of the witnesses, there was already a plethora of evidence from the officers concerned to support the offence charged, which evidence had ultimately been accepted by the judge.

21.  Finally, in respect of sentence, the respondent submits that a term of 3 years’ imprisonment is not uncommon for an offence of handling stolen goods.  She also cites the case of HKSAR v Cheng Chun Ming(unrep., CACC 356/2000), where the Court of Appeal had said, at para 14:

“Cases involving 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”.

Ms Ko argues that the same principles would apply to motorcycles and thus the sentence could not be considered manifestly excessive.

Consideration

22.  This was a case which ultimately depended on the credibility of witnesses.  The judge has given reasons for her findings, which at this stage I can see no reason to impugn as to their validity or effect.

23.  This was also a case where the judge was entitled to consider the doctrine of recent possession and the inferences which flowed from that evidence.  She appears to have directed herself correctly on the law in this regard, having wholly rejected the applicant’s explanation[6].

24.  As for the absence of fingerprint evidence, such an absence has been judged to be a neutral factor: see HKSAR v Law Wing Hong (unrep., CACC 169/1998); HKSAR v Pham Thi Nga (unrep., CACC 224/2011).  The same has been said of the absence of DNA evidence: see HKSAR v Tsuchiya Koji (unrep., CACC 121/2014).

25.  In relation to the absence of CCTV evidence, the judge considered this point and accepted that the police saw no reason to retrieve it (para 14 supra).  She held that it was not fatal to their case.  It is, however, not clear to me on the available material before this Court what the evidence was as to the existence, location and value of any CCTV evidence.  Nor is it clear from the court clerk’s endorsement in the court file whether the matter was ever raised with, or dealt with, by the judge.  Accordingly, beyond the finding by the judge to which I have just referred, I do not know which prosecution witness (or witnesses) was asked about it, what he was asked about it, what he said was the reason for not examining it, whether the CCTV camera covered the scene of the incident between the applicant and the police officers and/or the parked motorcycle, whether the CCTV recordings still existed by the time of trial some 9 months after the event, whether and when the applicant requested an adjournment and how the judge dealt with that application (if any), etc.  Since I do not know the answers to these and perhaps other questions relevant to this complaint, I am ordering a full transcript of the evidence of the witnesses and the closing submissions of prosecuting counsel and the applicant.

26.  However, I wish the applicant to understand that I am taking this step out of an abundance of caution, should this application come back before the Court of Appeal, who will be asking themselves the same questions which I have just posed, the answers to which do not appear anywhere in the bundle as presently constituted.  The Court should not be left groping in the dark as to whether or not the issue of CCTV was raised and, if it was raised, how it was dealt with or not dealt with; which questions may precipitate an adjournment of any appeal for the relevant transcript to be prepared.  The evidence and submissions in the case were relatively short (together less than 2 full days), the applicant is unrepresented, and it seems to me expedient and prudent that this material be transcribed.  In the course of submissions by the applicant this morning, he has also referred to suggested inconsistencies between the prosecution witnesses, which recourse to a transcript will no doubt settle.

27.  Nevertheless, I can at this stage see no reasonably arguable ground of appeal arising from the non-production of CCTV evidence (if it existed).  The judge has, on the face of it, dealt with the matter in her Reasons for Verdict and given what seems a valid reason why it did not affect her view of the case.  There is an important difference between the non-disclosure of potentially relevant evidence which the prosecution has gathered, and the non-collection of evidence which the prosecution does not consider either necessary or relevant to gather.

28.  As for the absence of a signed confession, the judge was aware that the applicant refused to sign PW2’s notebook[7], which was consistent with his defence that the police had framed him up.

29.  Accordingly, I can at this stage see no reasonably arguable grounds of appeal against conviction.

30.  In relation to the application for leave to appeal against sentence, I can also see no reasonable argument on the basis of material before me that the sentence of 2½ years’ imprisonment for dishonestly handling a motorcycle worth some HK$40,000, which has been suitably modified within two days of its theft, is manifestly excessive.  Nor can I see any reasonable argument that the activation of the 2-month suspended sentence in full is manifestly excessive or wrong in principle.

31.  The application for leave to appeal against sentence is likewise refused.

32.  The applications for leave to appeal against conviction and sentence having been refused, the applicant is duly advised of his right to renew his application for leave to appeal against either conviction or sentence or both to the Court of Appeal, and the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the particular application.

[1] Reasons for Verdict, Appeal Bundle, p 15J-O

[2] Reasons for Verdict, Appeal Bundle, pp 16C-J; 18O-19A

[3] Reasons for Verdict, Appeal Bundle, p 17K-18K

[4] Reasons for Verdict, Appeal Bundle, p 18E-H

[5] Reasons for Sentence, Appeal Bundle, p 21R-U

[6] Reasons for Verdict, Appeal Bundle, p 15A-R

[7] Reasons for Verdict, Appeal Bundle, p 11T