R. v. Tiu Chun Kit

CACC000234/1996

IN THE COURT OF APPEAL

1996, No. 234

(Criminal)

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Coram: Hon Litton V-P, Sears and Yeung JJ in Court

Date of hearing: 30 January 1997

Date of judgment: 30 January 1997

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J U D G M E N T

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Litton V-P giving the judgment of the Court:

Introduction

1. This is an application for leave to appeal against conviction.

2. The applicant, the first of two defendants at the trial, was originally charged on two charges of theft in the District Court. After trial before His Honour Judge Christie he was acquitted of the theft charges and convicted of the lesser offence of handling stolen goods contrary to s24(1) of the Theft Ordinance, Cap 210.

3. The 1st charge of theft related to 500 cartons of Adidas shoes, the property of Ming Kai Transportation Co. The theft was said to have been committed between 30 and 31 August 1994.

4. The 2nd charge of theft related to 670 cartons of "Voyage" shoes, the property of Man Kee Transportation Co. The theft was said to have been committed between 27 and 28 September 1994.

Facts relating to 1st charge

5. The facts found by the judge, briefly are these.

6. The applicant had an account, in the name of Jetvas Industrials, with the Shui Foong Loong Godown Company in Tsuen Wan.

7. On 8 September 1994 482 cartons of Adidas shoes were deposited at the godown in the name of that company.

8. They came from a consignment of 500 cartons which had been stolen on the night of 30 and 31 August 1994 when a container lorry parked overnight with the goods on board was driven away.

9. On 14, 26 and 29 September quantities of these Adidas shoes were removed from the godown. On 1 October 1994 the police went to the applicant's office to make inquiries relating to the "Voyage" shoes, the subject of the 2nd charge. Two days later, on 3 October, the remaining 222 cartons of Adidas shoes were uplifted in lorries and then transferred to other lorries at a carpark and taken to another warehouse where they were stored under the name of Wah Shun Industrial Company.

10. Those, in essence, were the facts from which the prosecution invited the inference of guilt on the 1st charge.

Facts relating to 2nd charge

11. The facts relating to the 2nd charge found by the judge are as follows: At about 11 a.m. on 28 September 1994, 668 cartons of "Voyage" shoes were deposited in Jetvas Industrials' name at the godown.

12. They came from a consignment of 670 cartons of shoes stolen in the early hours of the same day when a parked container lorry with the shoes on board was taken away.

13. These shoes deposited at the godown in the morning were uplifted and taken to the Kwai Chung Container Terminal together with other goods on the same afternoon (28 September) and soon thereafter were shipped to Singapore.

14. Those, in essence, were the facts from which the prosecution invited the inference of guilt on the 2nd charge.

Conviction for lesser offence

15. As can be seen, the evidence linking the applicant to the theft of the two consignments of shoes was virtually non-existent: Handling stolen goods, an offence chargeable under s24(1) of the Theft Ordinance, was another matter. By virtue of s32, a person acquitted of theft can be found guilty of handling, being one of the offences specified in the 2nd column of the Schedule to the Theft Ordinance.

Defence case

16. The defendant's case in essence was this:

(i) He was a trader.

(ii) He was friendly with the deputy supervisor of the Shui Foong Loong Godown and was able to obtain favourable storage rates.

(iii) He had an arrangement with a man surnamed Chan for Chan to store goods at the godown in the name of Jetvas Industrials. Sometimes the applicant was authorised by Chan to sell those goods and the applicant received commission in consequence.

(iv) The goods the subject of the two charges were deposited by Chan on the account of Jetvas Industrials under this arrangement.

(v) Regarding the Adidas shoes they were removed because Chan wanted them removed; as regards the "Voyage" shoes the applicant was making arrangements at the godown for the removal of large quantities of other goods - microwave ovens, garments, jewellery boxes - when the 668 cartons of "Voyage" shoes arrived. The applicant was then arranging for the other goods were to be consigned to a buyer in Singapore. When the 668 cartons of "Voyage" shoes arrived, it was arranged to have those shoes consigned to the same buyer as well.

The judge's approach

17. Regarding the arrangement made with Chan, which lies at the foundation of the applicant's case, the judge said this:

"it is clear that the defendant did have a business relationship with CHAN, in which CHAN deposited goods to the Jetvas account. This was confirmed by Mr LAU, PW31, the godown deputy supervisor."

18. Given the nature of the defence case, it was incumbent upon the judge to evaluate all the evidence to see if the inference of guilt could irresistibly be drawn.

19. The judge, for good reasons, evaluated the evidence regarding the "Voyage" shoes - the subject of the 2nd charge - first. The judge concluded that the applicant had prior knowledge of the arrival of the shoes at the godown: that is, prior to their arrival on the morning of 28 September: In other words the applicant knew that a lorry-load of "Voyage" shoes was going to be stolen or had been stolen before the 668 cartons arrived. The judge reached this conclusion by the following process of reasoning: If the theft of the container with the shoes inside were "opportunistic and made without planning" he would have agreed with defence counsel that it was inherently unlikely that the applicant knew the shoes were stolen when they arrived at the godown on the morning of 28 September. But, the judge said this:

" There is the fact, however, of the Adidas heist in the same month and it supports the likelihood that this theft of Voyage shoes was also known in advance to be a theft of shoes."

20. Mr Bruce QC rightly concedes in this court that this process of reasoning is flawed. The judge, in his fact-finding role, was bound to consider the charges separately - as a jury would have been directed to do, if the judge were sitting with a jury. This goes to the root of the issue of knowledge - the only real issue in the trial - on the 2nd charge.

21. As to the first charge, regarding the Adidas shoes, there was a gap of 8 days between the theft on 31 August of the 500 cartons and the receipt of 482 cartons into the godown on 8 September 1994.

Did the judge err in evaluating the evidence?

22. As Mr Grossman QC, counsel for the applicant, rightly submits, the judge appears to have given undue weight to the fact that, upon receipt of the goods on 8 September, the applicant took no steps to inspect them: For this was consistent with the defence case: If the applicant was acting merely as a sub-bailee for Chan, as he said he was, there was no particular reason for him to inspect the goods. And in any case, the applicant's case was that, within about two days, Chan said he had found a buyer and the shoes were progressively removed.

23. The judge also had doubts regarding the alleged sale by Chan, having regard to the "pattern of four separate withdrawals over almost 3 weeks": This, counsel says, is illogical: There is nothing inherently improbable in a sale by Chan resulting in separate withdrawals over a period of about 3 weeks.

24. There is strength in these submissions.

The substituted offence of handling

25. It is however unnecessary to consider if the above points taken on behalf of the applicant are enough to impeach the convictions, for there is another overwhelming point in his favour. It is this: In relation to both charges of theft, the applicant was convicted of the alternative offence of handling stolen goods contrary to s24(1). What the judge said in relation to the two charges was this:

(1) "I acquit him of the charge of theft in charge one, and find him guilty of handling 482 cartons of the Adidas shoes described in that charge in that the defendants, believing them to be stolen, dishonestly undertook their retention and removal between 8 September and 3 October 1994, at the Shui Foong Loong Godown and the Kalun Godown. Now, that charge is amended accordingly, and a verdict of guilty also recorded."

In relation to the 2nd Charge the judge said this:

(2) "I acquit him of the charge of Theft in charge two and find him guilty of an offence contrary to section 24(1) Cap. 210, of handling of 668 of the 670 cartons of Voyage shoes referred to in the charge, in that he, knowing them to be stolen, dishonestly undertook their retention and disposal on the 28th and 29 September 1994, at the Shui Foon Loong Godown, Tsuen Wan. Now, that charge is amended accordingly, and a verdict of guilty as recorded against it."

26. Now, section 24(1) contains two situations whereby a person can be convicted of handling stolen goods:

(a) He dishonestly receives the goods knowing or believing them to be stolen;

or

(b) He dishonestly undertakes or assists in their retention removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

27. Here, in acquitting the applicant of the theft charges, the judge proceeded under the second limb of s24(1) which requires, as an ingredient, that the retention and removal was by or for the benefit of another person.

28. The judge disregarded this element in s24(1) and made no finding that the retention and removal of the two lots of shoes was by or for the benefit of another person: presumably Chan in this case, if that is what the judge had in mind.

Retrial

29. Mr Bruce QC realistically concedes that the point is fatal to the convictions but argues for a retrial: or at least on the 2nd charge, suitably amended, relating to the Voyage shoes where the evidential presumption arising from recent possession was much greater against the applicant.

30. In our judgment this is not a case for a retrial, particularly having regard to the fact that the applicant has been in custody since the end of March last year and the staleness of the events. If, upon our ordering a retrial, the prosecution should decide not to proceed against the applicant on charge 1, then effectively the applicant would have served the bulk of his sentence even if convicted on an amended charge 2.

31. For these reasons, we would allow the application, treat the hearing of the application as the hearing of the appeal and quash the convictions.

Representation:

A.A. Bruce QC and Edmond Lee (Crown Prosecutor) for Crown/Respondent

Clive Grossman QC and Michael Poll (M/S Chong, Leung & Co.) for the Applicant