HKSAR v. WONG KA MING

HCMA 965/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 965 OF 2004

(ON APPEAL FROM KCS 4634/2004, KCS 4636/2004 & KCCC 5597/2004)

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J U D G M E N T

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1.  You were convicted after trial of four offences arising from the supply and possession of what, effectively, may be described as motor vehicle fuel in premises purporting to be a car wash.  The first two offences, relating to dealing with and possessing, respectively, 25 litres and 725 litres of fuel were brought under the Dutiable Commodities Ordinance, Cap. 109.  The third offence related to possession of goods subject to control under the Dangerous Goods Ordinance, Cap. 295.  The fourth was brought under the Fire Services Ordinance, Cap. 95.  The offences occurred in Chi Kang Street, To Kwa Wan on the 23rd of April 2004 when the police mounted an undercover operation. 

2.  You appeal both conviction and sentence.  You are unrepresented in these proceedings which have twice been previously adjourned, at your request, for, on the first occasion, preparation of a transcript of the evidence of the two prosecution witnesses and, on the second occasion, engagement of legal representation.

3.  The grounds of appeal against conviction are those contained in the pro forma notice of appeal.  When you appeared before me on 27 January 2005 you indicated that your ground of appeal was that you had been deprived of an opportunity to fairly present your case at trial due to the advice given to you by your then counsel.  That was the first occasion upon which this issue had been mooted.

4.  As a consequence of your allegations I adjourned the hearing of the appeal until today to enable your previous counsel to respond to your allegations.  The record of what you said in court was transcribed and forwarded to her.  She has responded.  You have been provided with her response as well as that of her instructing solicitor.  They have both indicated that you had the various options, with their attendant advantages and disadvantages, explained to you; that you were at liberty to make your own decision as to what course to follow; that you did so, choosing to call a witness but not to testify yourself.  What she says is repeated by a member of the staff of the firm of solicitors that represented you.  I have no doubt whatsoever that that is precisely what happened.  I accept what they say without hesitation.  There was nothing unfair at all about this trial.

The appeal against conviction

5.  Other than that allegation, you have today complained about the untruthfulness of the evidence given against you.

6.  There was only one issue at trial:  was it you with whom the undercover police officer had dealt in regard to the supply of fuel for his motor vehicle or was it a third person who, it is suggested, fled the scene?  Your case is that you were innocently washing a motor vehicle and were picked on by the police officers when they were unable to apprehend the true culprit.

7.  Two police officers gave evidence.  The first police officer was the witness who had actually spoken to you and arranged for the supply of fuel.  He had driven an unmarked car to the shop and spoken to you:  you had instructed your co-accused to physically provide the fuel.  He had dealt with you over a period of several minutes and some of the conversations had taken place face-to-face when you were a matter of feet apart.  It was the prosecution's case that after you had given this instruction to your co-accused, you went to stand at the entrance to the shop and act as a lookout. 

8.  The second prosecution witness testified that, whilst he had been outside the premises, he had seen you standing at the shop entrance:  he had later intercepted you there and subsequently confirmed with the first prosecution witness that you were the correct the person.  He had not witnessed any previous exchanges between you and his colleague inside the premises.

9.  You elected not to give evidence but called a single witness who testified that there had been another person present who had fled the scene and that at the material time you were innocently washing his, the witness’s, vehicle.  He testified that you had not received any request from the first prosecution witness nor relayed any instructions to the co-accused: these acts had been performed by the man who had fled.

10.  This was a straightforward matter which depended upon the credibility of the witnesses.  The Magistrate had the advantage of seeing and hearing them.  He disbelieved, as he was entitled to do, the evidence of the defence witness.  He accepted, as he was entitled to do, the evidence of the prosecution witnesses.  Once he took that course, conviction was inevitable.  There was no room for simple mistake.

The appeal against sentence

11.  You have one previous conviction for trafficking in dangerous drugs.  Because you had been committed to Training Centre in respect of that offence and may have been subject to recall the Magistrate called for various reports including a background report.  In the event, he decided that the appropriate course was a short immediate custodial sentence. 

12.  He imposed sentences of 9 months imprisonment in respect of each of the offences under the Dutiable Commodities Ordinance and 3 months imprisonment in respect of the offences under the Dangerous Goods Ordinance and the Fire Services Ordinance.  He ordered that the sentences all be served concurrently with one another, resulting in an overall sentence of 9 months imprisonment.

13.  In doing so, he took into account the fact that your co-accused had pleaded guilty to the same offences and been sentenced to short periods of imprisonment.  The Magistrate adopted the same, modest, starting points.  Of course, your sentences end up being 50% higher than those of your co-accused for you forewent the benefit of the one third discount from starting points which accrues as a result of pleas of guilty.

14.  The facts upon which the Magistrate relied to convict you showed that there were some 750 litres of combustible fuel in and about the premises.  25 litres of that fuel was destined to have been poured out from a plastic container, through an open funnel, into the petrol tank of the police officer’s vehicle. 

15.  There can be no doubt, in my view, that an immediate custodial sentence is appropriate in a matter such as this.  Although much is made of the loss of revenue to the fiscus in these matters, it must be self-evident that operations of this nature are highly dangerous - to the operators, their patrons and the surroundings in which they operate.  The location where these offences occurred were ordinary commercial premises, in a densely populated and busy area.  The operation as a whole posed a serious danger to the neighbouring buildings and to those in the general vicinity.

16.  The sentences imposed by the Magistrate were entirely proper.  They were within current sentencing practice.

17.  I would add this.  This was not an appropriate matter in which to have granted you bail pending appeal.  The Magistrate said

“	I am going to grant you bail not because I think there is any reasonable likelihood of success on appeal…But you are a young man and the court seriously views…putting young people in prison.”

18.  With respect, that is not the appropriate test.  

19.  When dealing with an application for bail pending an appeal from a magistrate Cons, V.P., said in R. v. Tam Chung-wah [1976] HKLR 831 at 833:

“	It will usually be necessary to show that the chances of successful appeal are high and that substantial injustice will be done by retaining the applicant in custody.”

20.  Although not dealing with an appeal from a magistrate Bokhary, J.A., as he then was, in R v LEE Hoi-kwong CA229/1992 adopted the formulation of the Court of Appeal in England in R. v. Watton (1979) 68 Cr App R 293 that

"... bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard."

21.  The required standard has repeatedly been described as requiring an applicant to show that he has a strong prospect of success on appeal: see, for example, Litton, J.A., in R v LEE Yiu-hang CA709/1993 Bokhary, J.A., in R v HO Wing-leung CA645/1996 and in R v SAJED Mahmood Minhas CA379/1996 and Stock, J.A., in HKSAR v KWOK Chi-fai CA473/2000 .

22.  It needs to be emphasized that a person is not automatically entitled to bail pending appeal merely because the sentence is short: that is the effect of the judgment of Stock, J.A., in HKSAR v WONG Ho-ching, San Stephen CACC547/2003.  This sentence does not qualify as a particularly short one at nine months. 

23.  You could show neither high prospects of success on appeal nor that substantial injustice would be done by retaining you in custody. 

24.  You were correctly convicted and sentenced.  I confirm the convictions and the sentences.  The appeals against both are dismissed.