The Queen v. Yeung Hon Wang and Another
Read the full judgment text of CACC 187/1983 on BabelCite. This Court of Appeal judgment.
1. The two applicants were two of four accused charged in four separate counts of one indictment. The 1st defendant (D1) was charged in the 1st count of robbery. The 1st applicant, the 2nd defendant (D2), was charged in the 2nd count with the offence of handling stolen property. The particulars alleged that he, "on the second day of July 1982 at Kowloon, handled 25 ingots of pure tin, 293 solder wires, 1480 solder bars and 91 large solder bars, the property of the Alpha Metals Limited, knowing o
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CACC000187/1983 IN THE COURT OF APPEAL
BETWEEN
Coram: Hon. Roberts, C.J., Li & Silke, JJ.A. Date: 7th October, 1983 _____________ JUDGMENT _____________ Li, J.A.: 1. The two applicants were two of four accused charged in four separate counts of one indictment. The 1st defendant (D1) was charged in the 1st count of robbery. The 1st applicant, the 2nd defendant (D2), was charged in the 2nd count with the offence of handling stolen property. The particulars alleged that he, "on the second day of July 1982 at Kowloon, handled 25 ingots of pure tin, 293 solder wires, 1480 solder bars and 91 large solder bars, the property of the Alpha Metals Limited, knowing or believing the same to have been stolen". The 3rd defendant (D3) was charged with a similar charge in the 3rd count to that of D2. The 2nd applicant, the 4th defendant (D4), was charged in the 4th count with a similar charge. The particulars alleged against the 4th defendant, WONG Lung, were that "on the second day of July 1982, he handled 25 ingots of pure tin, 280 solder wires, 1480 solder bars and 91 large solder bars, the property of the Alpha Metals Limited, knowing or believing the same to have been stolen". 2. In the event, D1 and D3 were acquitted. D2 and D4 were convicted of their respective charges. D2 applies for leave to appeal against conviction.D4 applies for leave to appeal against conviction and sentence. Background 3. On the 29th of June last year, a robbery occurred in the premises of the factory of Alpha Metals Limited at 213 Wai Yip Street, Kwun Tong. At the material time, several Chinese males went into the factory premises, tied up the watchman, CHAN Kei, and took away 25 ingots of pure tin, 38 cartons of solder wires, 190 solder bars, 95 large solder bars and 6 small solder bars. A report was made to the police who started the investigation. 4. Acting on information received, the police visited the premises of the Ngai Lik Electronic Company in Hunghom on the 12th of July. There they found 2,000 pounds of solder bars which were part of the stolen property of that robbery. Upon enquiry from the manager of Ngai Lik, it was found that D4, the sole proprietor of Hop Hing Lung Metal Shop at 23 Cooke Street, Hunghom, had sold these bars to Ngai Lik at $21 per pound. The manager gave evidence that this was the normal price and that it was a normal transaction. His company had frequent dealings with D4 and he had no suspicion whatsoever of any irregularity. The police then interviewed D4. When this enquiry began, D4 told a lie that he purchased these solder bars from the Shing Ki Metal Shop. When this was found out D4 confessed to the police that he purchased the metal, part of which he resold to Ngai Lik, through D3. He led the police to his store at 13, Cooke Street, Hunghom as well as his brother-in-law's place at Hammer Hill Road, where the property was stored. In the end, practically all the property stolen in the course of the robbery was recovered and identified by the factory manager of Alpha Metals as being the property stolen from their company. Such evidence was not challenged. Statements 5. At 22.45 hours on the same day he was arrested, namely the 12th of July last year, in Kowloon Police Station. D4 made a cautioned state-ment which was duly admitted in evidence. Part of this statement reads:-
6. He gave particulars of this HUI Wu (D3) who sold the metals to him to the police whom he led to arrest D3. In due course, D3 led the police to arrest D2, who was alleged to be the person who first contacted D3 in relation to the sale of the metal. D2, when arrested, told the police that it was Dl who asked him to arrange for the sale of this metal. 7. D2 also made a cautioned statement in which he admitted acting as a middleman between D1 the seller and D3 the buyer but denied that he had any reason to suspect that the goods were stolen. However, in reply to question put by the interviewing officer "when did you know the tin pieces were obtained from robbery?", he replied "I did not know that all the time. When Ah Kwok told me to deliver the goods at 4 o'clock in the morning I began to suspect that there might be something wrong with the goods because it was unreasonable to deliver the goods in the middle of the night. Therefore I requested to postpone it to half-past five in the morning." 8. In the evidence before the jury, D2 repeated that he was a middleman. He was contacted at about 5 p.m. in the street by Ah Kwok, D1 and Ah Kwok's friend, Ah Hoi. Dl asked him whether he could find a buyer for the metal and told him that the weight would be some 3 to 4 thousand catties. He telephoned D3 who later offered him $13 a catty to which Ah Hoi agreed. D3 repeated that at no time he was suspicious there was any irregularity about the transaction, and that he knew nothing about the eventual agreed price between the vendor and the purchaser, D4. Case against D2 9. There were various discrepancies between D2's statement to the police and his evidence. For example, he first said that the parties agreed at the price of $13 but subsequently he said he knew nothing about the price. 10. There was also the failure of D2 to make inquiries on which the judge commented:-
11. There were also some conflict in the evidence between one given by D2 with that of D3. The judge commented on this:-
12. The judge directed the jury as to the burden which lay on the prosecution to prove the knowledge or belief in the following terms: -
13. We see no fault in this direction which put the correct issue before the jury which convicted D2 on the evidence as a whole. Nor can we say that the verdict of the jury is perverse. Leave to appeal against conviction by D2 must be refused. Case against D4 14. D4's defence may be summarised as follows: - 15. He was approached by D3 who offered him 3 to 4 thousand catties of metal. Subsequently he was shown a sample and offered $17, a price which was on the low side because it was difficult to tell the tin content of metal. D4 took the sample to a metal technician in Temple Street for analysis and was told that the metal was probably worth mote than that. He had in mind to make a profit of about $3 per catty. Despite his offer of $17 per catty he agreed to the price of $18 per catty as subsequently required by D3. 16. D4 said he had the goods delivered to him on the 2nd of July. He had not enough space to store all of them. After they had been weighed he arranged with his brother-in-law to store part of them at the latter's Hammer Hill Road premises, and part of them in his store place at 13 Cooke Street. He had absolutely no suspicion that the goods were stolen until the police told him. 17. On the 4th of July he did approach the Ngai Lik Company to sell to them some of the metals he purchased on the 2nd of July. He delivered them to the company on the 5th of July. The agreed price was $21 per pound. He agreed that by $21 per pound it would amount to $28 per catty and that therefore he had made a profit of $10 per catty. However, he said that there was a difference in price in transactions between dealers and factories and a greater difference between cash sales and credit sales. Also he allowed the Ngai Lik Company a credit; while the total price was $40,000, he received a $10,000 cheque which was post-dated 15 days and a $30,000 cheque post-dated 30 days. That accounted for his extra profit. Grounds of Appeal 18. The first ground was that the trial judge misdirected the jury by telling them that the price of $18 per catty that the appellant paid for the goods in question was a very low price. It is argued that there was evidence suggesting that the $18 per catty was not a very low price. Alternatively, it was said that the judge, by so doing, withdrew from the jury the issue as to whether the price was so low as to be any indication to guilty knowledge. 19. It is further alleged that the judge erred in directing the jury that they could draw inference of guilty knowledge by the factor of the very low price. 20. Finally, it is alleged that the judge misdirected the jury on facts and law, in comparing the price $28 per catty paid by a factory where a post-dated cheque had been given with the bulk purchase price in cash of $18 per catty, that was paid by a scrap metal dealer. 21. There was evidence by Mr. Yip of the Alpha Metals company to the effect that metal with 60% tin content would fetch a price much higher than $18 per catty. 22. However, another prosecution witness, YUEN Choi-po of the Shing Kee Metal Shop, said that metal with a low tin content would cost about $14 to $15 per catty and a high tin content metal would fetch about $17 to $18 per catty and those would be the prices she would be willing to pay. However, this witness said that she knew nothing about the price of tin in 1982 and that she had not sold any solder bars since 1981. She also, in her evidence, agreed that the price of metal depended largely on the market price at the time. 23. Mr. Lam of Ngai Lik who said that the metal he purchased from D4 was of roughly 60% tin content and such metal would fetch $21 per pound. He had frequent dealings with D4 from whom he purchased metal from time to time. According to his experience in dealing with D4, that was the sort of price he paid for that sort of metal. However, Mr. Lam agreed that whereas on a credit sale he would be willing to pay $21 per pound, or $28 per catty. He would have offered$17 per pound or $22 per catty in cash. 24. In his statement to the police D4 admitted that in view of what was told to him by D3 he "believed that the goods were obtained illegally. Therefore he pressed down the price by suggesting that he would buy the goods at eighteen dollars per catty". On his own evidence, the value of the goods he was about to purchase through D3 would be about $24 to $25 per catty. The question of low price was therefore suggested by D4 in his own statement. 25. At page 118, the judge when putting various points to the jury commented:-
Thus, the judge did not say in so many words that it was a low price. He asked the jury to consider if it was a low price. 26. The trial judge did not mention the differences between cash and credit sales, nor did he refer to the difference in the prices paid by the dealers and those paid by factories. Nor were those mentioned by D4 in the statement as the reason why he offered and paid $18 per catty. It is clear that when he made the offer, he already had a profit of $10 in his mind, and not $3 or $4. 27. We consider that it was open to the jury to conclude that there was such a substantial profit as to amount to evidence of guilty knowledge on the part of D4. 28. The only other ground of substance was that there was insufficient evidence to show that the applicant had guilty knowledge or belief that the goods were stolen goods when he purchased them. This is a question eventually for the jury, taking account of all the evidence adduced. D4 in his own statement at page 142, admitted that he believed that the goods were obtained illegally and so he pressed down the price. Prior to that, D3 had said: "You need not care about it. However, the goods would be sold to you cheap and to your advantage any way." When he examined the samples of the goods, he knew that their value was about $24 to $25 per catty and so he was buying at a low price, as he admitted. 29. It was further argued that the judge did not sufficiently explain to the jury the requisites of a charge of handling stolen goods by failing to define the phrase "knowing or believing that the said goods were stolen and dishonestly receiving the same". 30. In directing the jury, the judge said, at page 90:-
31. We agree with this approach, which is approved by the observation of Waller L.J. in R. v. Reader (1):-
32. We consider that it was proper for the trial judge not to further elaborate the meaning of the words "belief", "knowing" or "dishonest". These are simple English words. The more he tried to explain then, the more the jury might well be confused. 33. Having regard to the aforesaid, we are of the opinion that there is no merit in the application of D4 for leave to appeal against conviction and accordingly leave is refused. Sentence 34. In support of this application, counsel relied on the fact that D4 had lost over $100,000 and critised the judge for refusing to accept that $18 per catty was the price paid by D4. It was also argued that the judge wrongly made no distinction between the criminality of D2 and n4 since D2 had so many previous convictions but D4 had a clear record. 35. In assessing sentence, the judge did acknowledge that D4 had lost something - albeit he did not accept that he lost over $100,000. The matter of clear record was before him. Indeed, there was very little distinction as to the criminality between D2 and D4. D2 was greedy to earn commission as a middleman, irrespective of the consequence. Without persons like D4 ready to buy stolen goods it would be harder for criminals to dispose of their ill-gotten gains. We are of the opinion that the sentence was not manifestly excessive and the application for leave to appeal against sentence is also refused.
(1) (1978) 66 C.A.R. 33 Representation: Brook Bernacchi (Lo, Wong & Tsui) for 2nd accused 4th accused in person G. Alderdice (Crown) for respondent |