R. v. KWOK KAM CHUEN and Another

IN THE COURT OF APPEAL

No. 649 of 1995
(Criminal)

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J U D G M E N T

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Wong, J. (giving the judgment of the Court):

1. The applicants, who were respectively the 1st and 4th Defendant at trial, were convicted before Judge Bailey in the District Court of one charge of handling stolen goods. The 1st Defendant was sentenced to 4 years imprisonment and the 4th Defendant to 3 1/2 years. They apply for leave to appeal against their convictions. The particulars of offence are:

2. Kwok Kam-chuen, Chiu Lung-yu, Chan Wai-keung, Lam Chun-ping and Chan Yiu-kwai, between the 23rd day and the 29th day of July, 1994, in Hong Kong, dishonestly handled certain stolen goods, namely, one BMW 520i private car, registration number EC 308, the property of Lau Tak-tar; one BMW 730i private car, registration number FM 1121, the property of Expert System Company Limited; one BMW 325i private car, registration number FB 6014, the property of Mak Shing-yan; one BMW 520i private car, registration number FA 9804, the property of Chui Lik-sun; one Toyota Camry private car, registration number EZ 8658, the property of Flashtrade Company Limited; one Toyota Camry, registration number EY 8658, the property of Longley Elmer Charles JR; one Honda Accord private car, registration number FU 615, the property of Chau Chok-kuen and one Toyota Camry private car, registration number FR 9531, the property of Ng Mei-kwan, knowing or believing the same to be stolen goods.

3. It is not in dispute that the eight private cars named in the particulars were stolen between the months of June and July 1994 and reports had been made to the police. On 28th July 1994, these cars were found in On Chuen carpark, Fanling inside two containers mounted to two trailers with four cars in each container. Fung Chun-ming, PW3, was interviewed by the police as a suspect initially rather than as a witness. The applicants and three men who were the 2nd, 3rd and 5th Defendant were subsequently arrested.

4. Fung was employed by the Luen Fung Transport Company to drive tractor EV1522 which he was permitted to take home at night. But he was not permitted to use the tractor for private gain. He gave evidence to the effect that in the middle of 1992 a friend introduced him to Chiu Lung, the 2nd Defendant in Shenzen, China. The 2nd Defendant was granted bail but failed to appear during the trial and a warrant has been issued for his arrest. The 2nd Defendant introduced the 1st Defendant to him about three months later and he understood that the 1st Defendant was employed by the 2nd Defendant. The 1st Defendant has been known to him as Lee Chuen.

5. On 20th July 1994, Fung met the 2nd, 1st, 3rd and 4th Defendant in the Sun Ming Yuen Restaurant in Fanling. He was introduced to the 3rd Defendant as "Ah Keung" and the 4th Defendant as "Ah Lam". He identified the 3rd and 4th Defendant at an identification parade on 3rd August 1994 and the 1st Defendant at an informal confrontation on 30th July 1994. At the restaurant, the 2nd Defendant suggested and Fung agreed that Fung would use his tractor to move containers for the 2nd Defendant within Hong Kong for $5,000 each trip. The 2nd Defendant told Fung in the presence of the 1st, 3rd and 4th Defendant that the 1st Defendant would contact him when there was work.

6. In the evening of 23rd July 1994, the 1st and 2nd Defendant telephoned Fung and as a result he had dinner with the 1st and 3rd Defendant at the Sun Ming Yuen Restaurant. After dinner, Fung drove his tractor with the 1st and 3rd Defendant on board to a trailer loaded with a container parked at a roadside in Fanling. While the 1st Defendant waited at a cafe, Fung towed the trailer with the container at the 3rd Defendant's direction to the Ka Wah Concrete Company Site in Man Kam To. The 4th Defendant was already at the site when Fung and the 3rd Defendant arrived and directed Fung where to leave the trailer/container. Fung then drove away in his tractor to join the 1st Defendant at the cafe while the 3rd and 4th Defendant remained at the site. Fung stayed with the 1st Defendant at the cafe until 1 a.m. and returned to the Ka Wah site on the 1st Defendant's instructions to tow the trailer/container which he had left earlier to the On Chuen carpark in Fanling. The 4th Defendant remained at the Ka Wah site while the 3rd Defendant accompanied Fung in the tractor to Fanling. Fung said that he felt that the container was slightly heavier than when he left it at the Ka Wah site.

7. On 26th July 1994, Fung again met the 1st and 3rd Defendant at the Sun Ming Yuen Restaurant after phone calls from the 2nd and 1st Defendant. He was accompanied by the 1st and 3rd Defendant in his tractor to a container loaded on a trailer which was parked at a roadside in Fanling. Fung was surprised to find that the trailer was his, which he had lent to the 2nd Defendant about a year previously. He spoke to the 1st Defendant about this and was told that the 2nd Defendant was on business in China and would speak to Fung about his trailer upon the 2nd Defendant's return. The 3rd Defendant then directed and accompanied Fung to tow the trailer/container to the Ka Wah site and left it in a similar position to the first occasion. The time was between 11 p.m. to 12 p.m. Fung drove away and met the 1st Defendant at a restaurant. Around 2 a.m. or 3 a.m. Fung returned to the Ka Wah site, accompanied by the 3rd Defendant. The 4th Defendant also followed him in a private car while the 1st Defendant remained at the restaurant. Fung was upset with the 2nd Defendant regarding the use of his trailer and instead of towing the trailer/container to On Chuen carpark, he drove it to his home in Tin Shui Wai, Yuen Long and parked it at a road. The next day, he towed it to the On Chuen carpark after meeting the 1st, 3rd and 4th Defendant who followed him to the carpark in a car.

8. The 4th Defendant did not give evidence nor call any witness. The 1st Defendant gave evidence. He denied any participation. He said that he was in China on 20th July 1994 and produced his China Entry Permit. He admitted that he had known Fung and the 2nd Defendant prior to this incident.

9. The case against the applicants depends very substantially on the evidence of Fung Chun-ming. Both in the Amended Perfected Grounds of Appeal and his argument before us, Mr. Grounds, who appears for the applicants, directed his attack on the evidence of Fung and the manner the judge dealt with it. He submitted that because of the role Fung played in this matter, he had to fabricate a story and gave names in order to save himself. He had the best motive in the world to tell lies. At the time he gave statements to the police, Fung was under heavy subjective pressure and a state of extreme worry. Fung is a capable, cunning and intelligent individual. It was absurd, Mr. Grounds contended, that Fung had no suspicion of the goods in the containers he was asked to transport and he still trusted Chiu despite what happened to his own trailer. Had the judge properly evaluated the evidence and took into consideration of all these matters, he could not have believed Fung.

10. This witness was subjected to vigorous and thorough cross-examination by defence counsel. The judge heard his evidence and observed his demeanour. In his Reasons for Verdict, the judge dealt with Fung's evidence in considerable detail. He warned himself to approach Fung's evidence with a substantial degree of caution because of the role he played and that Fung had interest of his own to serve. He directed his mind to Fung's evidence as to his perceived status as a suspect when initially interviewed by the police. At p. 53 of the Appeal Bundle he concluded:

"I am sure that he gave truthful evidence as to the roles of the 1st, 3rd and 4th Defendant in arranging the collection of the two containers and subsequent loading and delivery to the On Chuen carpark."

11. We are satified that the judge evaluated the evidence properly and with care. There is nothing in the submission or in the record to cause us concern that the convictions were unsafe and unsatisfactory. Leave to appeal is refused.