R. v. TAM KAI WING and Another

IN THE COURT OF APPEAL

1996, No. 323
(Criminal)

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court) :

1. The first applicant, Tam Kai-wing, who was the first accused in the Court below, applies for leave to appeal against both conviction and sentence. The second applicant, Ka Kwan-sinn who was the third defendant below seeks leave only to appeal against sentence.

2. On 22nd May, 1996, the first applicant was convicted of five offences committed as long ago as December, 1994, and two offences committed in August 1995. Two Australian companies, Poseidon Seafoods (S.A.) Pty Ltd, and Austpak Seafood Pty Ltd, had been deceived into thinking that they had sold a large quantity of live lobsters to a company in the People's Republic of China. The deception went so far as the supply of false documents showing telegraphic transfers of money to them. In fact, the Chinese company did not even exist. Each of the Australian companies sent the lobsters to Hong Kong and they arrived on 3rd and 4th December, 1994. When they arrived at Kai Tak airport they were collected by the second and third accused who gave details of their identity cards and who produced the requisite copies of the airway bills and a bogus chop of the Chinese company. They had been given these by the first applicant. The first applicant went with them to Kai Tak but stayed outside the cargo terminal while they went to collect the goods. Thereafter he directed them on both occasions to go to a beach at Luk Keng where some of the lobsters were loaded on board a speed boat at sometime after midnight. He also went with them and someone called Ah Yu to another place in the New Territories where the rest was unloaded. The first applicant was paid $70,000 for his troubles by Ah Yu while he himself paid the second and third accused a smaller sum. These events were the basis of the first four charges, which were for handling stolen goods in that he dishonestly arranged for them to be removed knowing or believing them to have been stolen. He was sentenced to three years imprisonment on each charge each to be served concurrently with the others.

3. When the Australian companies discovered that the telegraphic transfer documents were false they complained to the authorities. Not unnaturally those authorities made enquiries of the second and third accused. They in turn contacted the first applicant on 7th December, 1994, and were told by him, in effect, not to involve him but to say that they had collected the goods for another person and that they should work it out. A few days later they told him that they had made statements and that everything was all right. This formed the basis of the fifth charge of conspiring with the second and third accused to pervert the course of justice by making false statements to the police for which the first applicant was sentenced to imprisonment for one year and one month. The police had reached a dead end and nothing else happened until a new team of investigators was assigned to the matter. The new team asked to interview the second and third accused again and they again contacted the first applicant. He told them to say what they had said before, although there may be some dispute as to whether or not he meant that they were to tell the truth. He told them not to mention that they had collected the goods for him. This was the basis of the sixth and seventh charges of doing an act tending to pervert the course of justice in that the first applicant instructed the second and third accused respectively to give a false statement to the police for which he was sentenced to imprisonment for one year and one month on each charge. The sentences on the fifth to seventh charges were to run concurrently with each other but consecutively to those imposed for the first four charges to make a total of four years and one month.

4. In the course of the investigations the first applicant made three statements under caution. The first was upon his arrest for theft of the lobsters on 3rd and 4th December, 1994 in which he said,

"One must carry the can for what one has done. It has nothing to do with Ah Ka and Ah Ting. This job was done by me."

The second was made on the night of the same day. When he was asked what he had meant by the first statement he said,

"That means Ah Ka and Ah Ting do not know about this case of stealing lobsters. They were only told to go to collect the goods by me."

When describing the collection of the goods on the first occasion he said,

"After the two of them had collected the goods and came out, I got into Ah Ka's vehicle and told him to transport the goods to Luk Keng."

There was a speed boat at the beach which had been arranged by Ah Yu well beforehand. Some of the goods were loaded on board that speed boat. He said the same sort of thing as to the second collection. Finally, he said that he thought that there was something wrong with the consignment because although Ah Yu himself was in the lobster business he did not dare to collect the goods himself and had offered such a large amount of money to him to do so. When asked what he thought might be wrong he said he thought there was something fishy. He said that when the second and third accused first contacted him to say that the police were making enquiries he told them he thought they might be "mouse goods". He explained to the police that what he meant was that they were from a dubious source or were stolen property. It is to be remarked that in his second statement after he had been arrested for the offence of theft he himself referred to the goods as having been stolen.

5. Notwithstanding objections, the Judge below admitted all three statements into evidence and there is no appeal against that. The first applicant gave evidence both on the trial within a trial and upon the general issue. His evidence was materially different in many respects from the contents of his statements. The Judge did not believe his evidence and relied upon those statements and inferences she drew from them in convicting him.

6. The complaints put forward attack those inferences drawn by the Judge namely that the first applicant knew at all material times that the goods were stolen. She inferred this from the following. First, the first applicant said to the police that he must carry the can for the stealing of the lobsters. Secondly, she accepted that the first applicant had used the term "mouse goods" and that he had given the explanation of it which he is recorded having given to the police. Thirdly, there was the amount of money he had been offered and paid by Ah Yu. Fourthly, according to his statement he directed the second and third accused to go to Luk Keng which suggested that he knew where part of the first collection was to go. These were all matters clearly admitted in the cautioned statements. The Judge was not only entitled to find as she did. It is not possible to understand how she could have concluded otherwise. One of the complaints is that the Judge was in error in finding that it was part of this applicant's job to collect cargo from the airport so that she was wrong to infer that the first applicant had utilised the second and third accused to distance himself from the cargo. He worked for a company dealing in seafood and it is quite apparent from his own evidence that he did go to collect cargo from the airport and deal with it as part of his job. He did not personally deal with it on the two occasions in question.

7. Having regard to all of the circumstances, we see nothing in the grounds of appeal put forward by the first applicant and his application for leave to appeal against conviction must be dismissed.

8. The first applicant, together with the second applicant, that is to say the third accused, also apply for leave to appeal against sentence. The first applicant's only ground and the first ground of the second applicant are the same. It is that they should have been charged under section 63 of the Police Force Ordinance, Cap.332, rather than for conspiracy to pervert the course of justice while the first applicant also says that he should have been more appropriately charged under that section instead of charges 6 and 7 as well. It is not for this Court to say what offences should be charged. The present case was one of conspiracy involving an international fraud in which the two Australian companies lost in excess of $660,000 and by reason of which the police were delayed in their investigations. The first applicant's application for leave to appeal against sentence must be dismissed and the second applicant's application for leave to appeal against sentence so far as it depends upon the same ground must also fail.

9. We were concerned however that in the Court below the Judge had given the second accused a sentence of eight months imprisonment and then suspended it for a period of two years. The difference between the second and third accused at trial below was that the second accused had pleaded guilty. On the other hand, the third accused had not given evidence and therefore had not told lies to the Court. It may be true that the second accused was in a position subordinate to the third but in essence they both did what they were told by the first accused and no distinction can be drawn between them in that respect.

10. The third accused had a very minor conviction which is not relevant to the present case while the second accused had a clear record. We are not entirely sure that the Judge was right in suspending the sentence of the second accused. We have now been told that the Judge was in fact acting under the misapprehension, apparently contributed to by his legal advisers at the time, that the third accused did not have any employment. She seems to have given the second accused a suspended sentence because he had, amongst other things, a job. It has now been shown that the third accused also has a job to which he is able to return.

11. As we have said, we are not at all sure that a Judge below was correct in her sentencing of the second accused but in all of the circumstances of this case we think it is right that the third accused should not leave this Court with a sense of grievance and in the circumstances we accede to the application and the suggestion made by Mr. Edward Laskey that the rest of the third accused's sentence should be suspended for two years. His application therefore for leave to appeal succeeds to that extent and treating this application as a substantive appeal we so order.