Leung Wai and Others v. The Queen
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CACC000244/1972 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 244 OF 1972 -----------------
----------------- Coram: Leonard J. in Court. Date of Judgment: ----------------- JUDGMENT ----------------- 1. The three appellants have appealed against both their convictions and their sentences on a charge of stealing together with Li Tak Cheung 2 car wheels and 2 hubcaps the property of Ching Chik Wa contrary to section 9 of the Theft Ordinance. 2. The facts relating to this charge were as follows. At about 6 p.m. on the 9th November 1971 Ching Chih Wa parked his car AP 4421 outside 27, Wing Kwong Street. At about 5.30 a.m. on the morning of the 10th November 1971 he went down to the place he had left his car and found both front wheels with them hubcaps missing. At about 4.20 a.m. that morning a party of police in an Emergency Unit patrol car went on instructions to Wing Kwong Street. On arrival there they saw a car AG 9475 driving away from the street: they gave chase and at about 4.30 a.m. having had AG 9475 in view throughout stopped AG 9475 in Chatham Road near On Fat Road. Li Tak-cheung was alone in that car and in the boot were found inter alia two hubcaps. About 10 minutes later car AR 8110 driven by the 1st appellant with 2nd appellant by his side and 3rd appellant in the rear drove up and stopped near the Emergency Unit patrol vehicle and AG 9475. The appellants alighted and the 1st appellant claimed that AG 9475 belonged to them and said that Li Tak-cheung was his friend and pointing at AG 9475 said "This vehicle is ours". The 1st appellant is himself a police officer. 3. The car AP 8110 was in turn searched and in the boot of it were found the 2 missing wheels without hubcaps. The boot had been locked when AP 8110 drove up to the scene and the only key to fit the lock on it was the ignition key to AP 8110. The keys of AG 9475 did not fit the lock to AP 8110. All three appellants denied knowing how the wheels got into the boot of AP 8110. Eventually car AG 9475 and AP 8110 was claimed by and returned to the 2nd appellant and the 3rd appellant respectively. 4. Counsel for the Crown had opened the case on the basis that 3 cars that is to say AP 4421 from which the hubcaps and wheels were stolen, AG 9475 and another unidentified car had been at the scene of the theft at about 4 a.m. some short time before the police arrived at the scene. The witness who was to prove this fact was not in fact called. Although the prosecution applied for a subpoena to compell his attendance he could not be served. 5. Mr. Comber for the appellants complained there was insufficient evidence on which to convict and that the learned Magistrate took into account what was said by counsel for the Crown in opening. It is correct that the learned Magistrate found or inferred that the wheels were stolen between 4 a.m. and his reference to 4 a.m. may have been prompted by the opening. On the facts proved the theft might have taken place at any time after 6 p.m. on the 9th November 1971. However it is reasonable to infer that it did not take place much before 4.20 a.m. since AG 9475 in which the hubcaps were found was still on the scene of the theft at that time. One does not loiter at the scene of a theft after it has been completed; certainly AG 9475 did not loiter when the patrol car drove up. No evidence was adduced on behalf of the appellants and no explanation given as to how the boot of AP 8110 could have been found locked with the stolen wheels inside if they had not been privy to the theft. 6. I consider having reread the record most carefully that the inference of guilt arising from the facts proved was an irresistable one and I therefore dismiss these appeals against conviction. In view of the fact that the 1st appellant is a police officer I consider that the sentence imposed on him erred, if it erred at all, on the side of leniency. I have given anxious consideration to the question as to whether the fines imposed on the 2nd and 3rd appellants can be said to be manifestly excessive having regard to the scale of imprisonment for non-payment of fines laid down in section 68 of the Magistrates Ordinance. Having regard to that scale I think fines of $1,000 each will meet the justice of the case and I allow the appeals of the 2nd and 3rd appellants to the extent that the fines imposed on them shall be reduced to that figure.
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