HKSAR v. Zheng Wan Tai

CACC000254/1999

CACC254/99

HEADNOTE

Criminal Law - handling stolen goods - unmanifested cargo - severance of charges - discretion.

Handling stolen goods - recent possession - application to "assisting" in "2nd limb" handling - R v Ball and Winning (1983) 77 Cr. App. R. 131 applied.

Court of Appeal directions for written argument 10 days prior to hearing date - importance of adherence to directions - advance preparation time needed by Court of Appeal and Respondent.

Grounds of appeal - citation of cases by reference to name only is insufficient where grounds are settled by counsel.

CACC254/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 254 OF 1999

(ON APPEAL FROM DCCC 1048 OF 1998)

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Coram: Hon. Stuart-Moore, V.-P., Wong J.A. & Woo J.

Date of Hearing: 27 October 1999

Date of Judgment: 27 October 1999

Date of Handing Down Reasons for Judgment: 15 November 1999

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REASONS FOR JUDGMENT

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 26th March 1999, the Applicant was convicted, following a trial before Judge Whaley in the District Court, on charges of handling stolen goods and importing an unmanifested cargo. He was sentenced to concurrent terms of 2 1/2 years' imprisonment on each charge on 19th April 1999. The Applicant sought leave to appeal against conviction. We dismissed his application on 27 October 1999 and now give our reasons for doing so.

2. The two charges related to a consignment of 136 second-hand motorcycles which were sent in a container from Taiwan arriving in Hong Kong on 16th October 1997. The charge of handling alleged that on or about 16th October 1997, the Applicant had dishonestly undertaken or assisted in the retention, removal, disposal or realisation of 136 motorcycles belonging to owners in Taiwan, by or for the benefit of another or dishonestly arranged so to do, knowing or believing the same to be stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap. 210.

3. The second charge alleged that on the same day, the Applicant had imported an unmanifested cargo of 136 motorcycles, contrary to section 18(1)(a) of the Import and Export Ordinance, Cap. 60.

4. The shippers of the container, Sea-Land Service Incorporated ("Sea-Land") sent an arrival notice to the named consignee to inform him of the imminent arrival of the consignment. The cargo was described as consisting of 1,200 cartons of wooden carved doors valued at US$96,000. The consignee was ultimately, after amendment, named as Geelong Industries Ltd. ("Geelong"). Following this, the Applicant presented himself at Sea-Land in order to secure to himself the release of the container.

5. In a record of interview made on the next day, 17th October 1997, the Applicant admitted he had collected the Import Release Order from Sea-Land on 16th October 1997. In doing so, he had also signed an Arrival Notice which was chopped "for and on behalf of Geelong Industries Ltd.". As he was not in possession of a bill of lading, he had been required to sign a bank guarantee which was also chopped with the Geelong chop and signed in the Applicant's own name. The guarantee included these words:

"We desire and request that the goods be delivered to the signatory party claiming delivery or the order of such party in Hong Kong. To induce you to so deliver the goods without the prior production and surrender of bills of lading, we hereby represent and warrant as follows: (a) the signature party claiming the right of delivery is otherwise entitled to the possession of the goods and to the delivery thereof; (c) we have a financial interest in having the goods delivered as requested and we have full power and authority to make and issue this undertaking; (d) there are no holders of such bill or bills of lading other than the undersigned parties, nor any other parties are entitled to delivery of the goods."

6. These procedures, undertaken by the Applicant, incurred a fee of $2,490. The receipt was found in the Applicant's possession on arrest.

7. The Import Release Order which was given to the Applicant showed that Pac Trans Marine H.K. Ltd. had originally been the named consignee and that Geelong had been substituted for it.

8. In his Reasons for Verdict, the judge in dealing with this aspect of the evidence, said:

".... Sea-Land employees gave evidence to the effect that on 15 October 1997 an e-mail was received from the company's office in Taiwan requesting or instructing them to amend the consignee's name in that manner, namely to substitute the name Geelong Industries Ltd. as the consignee, with a telephone number provided for the consignee. That is, in fact, the same telephone number as appears against the consignee's name in the Arrival Notice. On receipt of this fax, the employee checked to see whether the consignee had yet applied to uplift the container and on ascertaining that he had not done so, she amended the consignee's name in the computer in terms of the request in the e-mail.

On the same date, 16 October, Mr. Wong of Asian Transportation Company received instructions from Ka Fung Industries to remove the container and transport it to the Pacific Terminal in Tsing Yi. He was instructed by Ka Fung to get the Import Release Order from 'Wong Wan-tai', and was given his mobile phone number to contact him at. (I should add that there was evidence that the defendant used to be called Wong Wan-tai and he changed his name by deed poll in 1995 to his current name Zheng Wan-tai.) Mr. Wong of Asian Transportation Company duly contacted this person at the mobile phone number given and arranged to meet him. The person was the defendant. Mr. Wong knew him; they had done business previously together. The defendant gave him the Import Release Order which he had obtained from the Sea-Land offices earlier that day. The following day Mr. Wong gave the Import Release Order to his tractor driver who then used it to secure the release of the container, which was then transported as instructed to the Pacific Terminal in Tsing Yi, to await instructions for its further disposal."

9. The container was opened by police in the presence of the Applicant at Pacific Terminal. Inside it, the 136 motorcycles were found jammed together. The Applicant was cautioned for handling stolen goods. He replied:

"Regarding this container, it's my friend Liao Huan Cheng from Taiwan who asked me to help him to change the bill receipt. The motorcycles didn't belong to me."

10. There then followed a long video-taped interview at the police station. The Applicant admitted, amongst other things, to trading in motorcycles on the mainland which had come from Japan. He explained in greater detail the arrangement he had with Liao regarding the consignment of motorcycles by saying that his involvement was through friendship. He understood the container related to wooden doors. He said that Liao had given him the Geelong chop at Mongkok MTR on the previous Sunday and that $600,000 had been transferred into his account by Liao.

11. In the light of this explanation, the police traced Liao. He admitted involvement in the consignment of motorcycles but said he had sold them to a man called Wu Sin-fung who handled all the export documentation. He said he did not know that the Applicant was the consignee. Liao denied having supplied the Geelong chop to the Applicant or transferring money into his account.

12. Liao was found by the judge to have been an unsatisfactory witness in a number of ways and he described Liao as "analogous to an accomplice". Liao faced charges in Taiwan in respect of these motorcycles. He was also intending to give evidence against his co-defendants in Taiwan. He was, however, adamant that he had had no direct connection with the Applicant in this consignment of motorcycles and that he had not met the Applicant since 1995. He accepted that a man called Chan Chak-ah had first introduced them and he denied having met Chan Chak-ah since that year.

13. The Applicant did not testify. However, two witnesses were called on his behalf. The second of these was Chan Chak-ah. He gave evidence of meeting Liao in Taiwan on 10th October 1997. He later learned of the Applicant's arrest and the circumstances in which it occurred. He gave evidence on the Applicant's behalf to demonstrate that Liao was lying when he said he had not met him since 1995.

14. The judge, in reaching a verdict of guilty, described the Applicant's version of events to police as a "tissue of lies" and he set out a number of cogent reasons why this was a proper way of describing the answers given to police by the Applicant.

15. With this background, Mr. Grossman S.C. who, together with Mr. Eric Kwok, appears on behalf of the Applicant, advanced seven grounds of appeal. These were settled by Mr. Kwok who appeared for the Applicant in the court below. Mr. Grossman came into this case for the first time only on Thursday of last week, 21st October 1999. It is necessary to mention this because, before dealing with the individual grounds of appeal, we should say that we take the greatest exception to the late delivery of the written argument which was directed by this court to be served 10 days prior to the hearing date. It was in fact only delivered five days before the hearing, on Friday, 22nd October 1999, without apology or explanation. Mr. Grossman was naturally embarrassed at this situation, which was not of his making. He explained that his junior was concerned, if a leader was to be instructed, that leading counsel should first have an opportunity to read the written argument. This is, of course, not an adequate answer. There is no reason why the written argument could not have been served and later, if need be, amended by leading counsel. We regard Mr. Kwok's conduct as a discourtesy to the court in holding back the written argument without any consultation with the court before taking this course. He is of sufficient experience to know that the almost invariable practice of this court is to require a written argument 10 days prior to the hearing day. Indeed, it is not suggested that he was unaware of the direction which had been made in this particular case. On the contrary, he was well aware of it.

16. There are a number of obvious practical reasons for the need for written argument well in advance of the hearing. The principal reasons are firstly, that this allows time for the members of the court to prepare for the application in depth and, secondly, it gives counsel for the Respondent an opportunity to provide a considered reply. Apart from these reasons, an applicant who is awaiting the hearing will expect the court to be conversant with the legal issues being raised by his counsel, quite apart from the factual matters which can be gleaned from the papers in the appeal bundle. It is to be hoped, bearing in mind the very large number of appeals which are dealt with in this Division of the Court of Appeal, that we will not again have to remind counsel of their responsibility, when they have been briefed in sufficient time, to comply with the directions given and to have written arguments served on the court 10 days prior to the fixed hearing date. We should add that it can be generally assumed in a case where, unlike the present one, no communication has been received by counsel as to the time by which written argument must be served, the probability is that this has been caused by an oversight.

17. The matter, however, does not end there because we were additionally hampered in our preparation of the papers by the fact that Mr. Kwok, in his Perfected Grounds of Appeal, made reference to four authorities in support of his propositions, none of which carried any citation. When cases are referred to, in terms of supporting a proposition of law, the full citation, together with a reference to the parts that are to be relied upon, should be given. In the event, we were eventually supplied with a list of 11 authorities which arrived with the written argument, supplemented this week by two further authorities.

18. We do not expect to remind counsel of Mr. Kwok's experience of his duty to prepare the paperwork properly for an application particularly, as here, it related to a case of some complexity. The Appeal Bundle included about 500 pages of transcripts and the trial in the District Court had lasted more than a month, involving approximately 36 witnesses.

19. It is hardly surprising with these serious complaints to be made about Mr. Kwok's preparation, that Mr. Cheung, for the Respondent, did not, contrary to normal expectations, reply in writing to Mr. Kwok's written argument. Understandably, it seems there was no time in which to do more than to provide the short and helpful list of authorities which we received from him two days before the hearing.

20. Turning now to the first ground of appeal, this complains that the judge failed to order severance of the two charges. The basis for this submission is that the Applicant was prejudiced in his defence by effectively having been deprived, by not testifying on the first charge, of any chance of success in his defence on the second charge brought under section 18 of the Import and Export Ordinance, Cap. 60, which reads so far as it is relevant:

"(1) Any person who -

(a) imports any unmanifested cargo; .....

.... shall be guilty of an offence .....

(2) It shall be a defence to a charge under this section if the defendant proves that he did not know and could not with reasonable diligence have known that the cargo was unmanifested."

21. The argument relating to severance of the two charges was similarly advanced in the court below. Mr. Grossman relied upon what was said by Barnes J. in The Queen v Wong Lap-kwong, (1991) 1 HKLR 52, as support for the proposition that, in circumstances such as these, severance should have been ordered. Wong Lap-kwong was a Magistracy Appeal in which the issue involved was described in these terms:

"The appellant pleaded not guilty in the Magistrates Court to two charges, each alleging offences under the Prevention of Bribery Ordinance (Cap. 201) ("the Ordinance"). The first charge alleged that he had acted contrary to s.3 of the Ordinance when he being a Crown servant (a police constable) accepted an advantage by way of a loan of $2,000. The second charge alleged that contrary to s.4(2)(a) of the Ordinance, he as a public servant accepted an advantage as an inducement, reward or the like on account of his past or expected performance of an act in his capacity as a police constable.

The two charges were heard together.

(The appellant's) first ground of appeal was that s.10 of the Magistrates Ordinance did not authorise the joining of the two offences.

The vital difference between the two offences was that on the s.3 offence no presumption arose, whereas on the s.4 offence a rebuttable presumption did arise. The nature of his defence to the s.3 charge was such that he would not have had to give evidence, whereas to make good his defence on the s.4 charge he would have had to give evidence."

22. Barnes J., at page 54E, continued by saying:

"The appellant's case in relation to the s.3 offence was that, although he had been paid money, the payment was not an advantage within the meaning of the Ordinance. His case in relation to the s.4 offence was an admission that he had accepted an advantage within the meaning of the Ordinance but a denial that that advantage was accepted for a corrupt purpose. He could have pursued his defence to the charge in relation to the s.3 offence without giving evidence. He could not have pursued his defence to the charge in relation to the s.4 offence without giving evidence.

Where an accused faces two charges in the one information there must be a risk that he will be caused embarrassment in his defence if the prosecution can invoke the aid of a presumption in support of one charge but not in support of the other. Whether that risk is real or not depends upon the nature of the defendant's defence to each charge. In many cases he may not be prejudiced or embarrassed and may well consider that his pursuit of justice will be aided by a joint hearing. If so, it would be consonant with the ends of justice for the magistrate to hear the charges jointly. But, equally there may be cases where the ends of justice will not be satisfied if through the joinder of 'presumption' and 'non-presumption' charges an accused person may run the risk of incriminating himself on one charge in order to have the advantage of exculpating himself on another. The difficulty is that an informed opinion as to whether an accused will be prejudiced or embarrassed in his defence needs assistance from the accused himself. It seems to me, therefore, that where multiple charges are properly joined and the proof of some, but not all, is aided by a presumption or presumptions, then the case has a special feature requiring the exercise of the magistrate's discretion under the proviso to s.10(2). That discretion cannot be properly exercised unless he is expressly informed by the defence whether it will be prejudiced or embarrassed by a joint hearing. That, in effect, means that a magistrate, in such cases, is under a duty to make that inquiry in order to ensure that he does have jurisdiction to continue with a joint hearing."

23. It is apparent, however, as Mr. Grossman was the first to concede, that R v Phillips,(1988) 86 Cr App R 18, was not cited in the judgment in Wong Lap-kwong's case although it had a considerable bearing upon the point raised. Phillips' case, which was amongst the authorities relied on by Mr. Cheung, involved charges of conspiracy and burglary. One of the grounds of appeal was that the trial judge had wrongly refused to sever the two counts thereby depriving the appellant of the freedom to choose to give evidence on one count but not the other. In giving the judgment of the court, Woolf L.J. set out the background of the application to sever in these terms: (at page 23):

"According to the instructions which Mr. Turner had from the appellant, he wished to give evidence on the burglary count but he did not wish to give evidence on the conspiracy count. Before the trial judge Mr. Turner did not explain the reasons for his client wishing to adopt this course, but before this court he accepted that the reason was because his client was conscious that if he gave evidence and was cross-examined in relation to the conspiracy charge, he would be compelled to make admissions which would incriminate him. Mr. Turner submits that in circumstances where a defendant wishes to give evidence on one charge but does not wish to give evidence on another charge, to try the counts together deprives him of his right either not to give evidence or his right to give evidence in relation to only one offence. Mr. Turner concedes that the two counts were properly joined but submits that the court still has a discretion to sever the counts where this is required in the interests of justice. In circumstances where, if there is not a severance, a defendant will have to make an election against his wishes either to give or not to give evidence in respect of an individual offence the only way the discretion can properly be exercised is to sever the indictment.

Mr. Turner acknowledges that if the counts were severed there would be the inconvenience of two trials, but he points out that all the evidence could be called at both trials and he submits there would be no question of the prosecution being prejudiced as a result of there being two trials apart from the administrative inconvenience and expense of two trials. He submits that administrative convenience cannot be allowed to override the rights of a defendant.

In considering Mr. Turner's submissions, the starting point must be the provisions of section 1 of the Criminal Evidence Act 1898, which removed the bar on an accused person giving evidence at his own trial. Section 1, so far as relevant, provides:

'every person charged with an offence .... shall be a competent witness for the defence .... Provided as follows (a) A person so charged shall not be called as a witness in pursuance of this Act except upon his own application, .... (e) a person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged; (f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless ....'

Although the 1898 Act refers to offence in the singular, it must be treated as applying equally to situations where a person is charged with offences in the plural and regarded as giving the defendant a choice of either giving or not giving evidence in relation to all the offences at the trial on which he is properly indicted. In the ordinary way if offences are properly joined in the same indictment then there can be no question of a defendant having in effect the right to have the indictment severed because the defendant believes that he might wish to give evidence in respect of one count and not another, which would be the consequence of Mr. Turner's submission. It would be entirely a matter for the discretion of the trial judge as to whether or not the indictment should be severed.

In considering whether to sever the indictment the provisions of section 5(3) of the Indictments Act 1915 must be borne in mind which provides:

'Where before trial or at any stage of a trial the court is of the opinion that the person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial on any count or counts in such indictment.'

In exercising his discretion the judge can take into account the practical consequences of ordering separate trials including the expense and inconvenience to witnesses that will result as well as the circumstances of the defendant. While the right of a defendant not to give evidence must be recognised and weight can be given to the desires of the defendant, it has to be borne in mind that whether or not the indictment is severed the defendant can change his mind about his wishes as to giving evidence and because of this there would be a risk that in some cases applications would only be made for tactical reasons.

Certainly in the circumstances of this case, the Court would not dissent in any way from the decision of the learned judge that he was not required to sever the counts of this indictment. The two counts were closely inter-related and it was obviously desirable that they should both be dealt with together at the one trial." (Emphasis added.)

24. Plainly, Phillips' case provides useful guidance in the approach to be taken in cases where severance is requested. Returning to the present case, it was conceded that the judge was fully aware of his discretionary powers and in our view he properly and sensibly exercised his discretion in refusing to sever the charges. It was accepted that the two offences were properly joined and, it goes without saying that they were very closely linked. Ultimately, Mr. Grossman was in agreement that this ground of appeal could only have force if the court took the view that the conviction for handling stolen goods would have to be quashed assuming success in his arguments on grounds 4 and 5 to which we shall later turn. This was because a conviction for handling left no room for a "due diligence" defence to the second charge of importing an unmanifested cargo.

25. We find no substance in this ground. Only very rarely will this court interfere with the proper exercise of a judge's discretion and no grounds have been supplied to suggest that this is such a case.

26. Ground 2 is a complaint that in assessing the evidence of Liao Huan-cheng, the judge erred in concluding that there was no "apparent advantage to him in the criminal proceedings which he faces in Taiwan for him to lie and falsely deny in the present proceedings that he had asked the defendant to help him dispose of the motorcycles".

27. Again we were unable to find any substance in this point. Whilst Liao's decision to give evidence might well be viewed as a self-serving course of action designed to demonstrate his cooperation with the Taiwanese authorities prior to being sentenced for his own involvement with these vehicles, it is hard to see that it would have been advantageous for him to make a false denial that the Applicant had helped him to dispose of the motorcycles. If his story had been that the Applicant had assisted him to dispose of the motorcycles, then it may have been perceived as more obviously advantageous to him, as this would have been closer to the prosecution's case. As it was, Liao was adamant, as the judge had stated, that he had not dealt with the Applicant in relation to these motorcycles. The judge was aware of Liao's involvement and that he was awaiting sentence in Taiwan for the offence he had admitted. In addition, expert evidence from a lawyer in Taiwan had been given to the effect that credit is given to a defendant in Taiwan in much the same way that credit is given in Hong Kong where an accomplice has given evidence against others who are involved.

28. In Ground 3, Mr. Grossman submitted that the judge erred in making no finding as to the evidence of Chan Chak-ah, who was called on behalf of the defence to testify along the lines which have already been covered in this judgment. It is true that nowhere in the judge's Reasons for Verdict is there a finding relating to the acceptance or otherwise of this witness' testimony. However, Chan's evidence at most went to the credit of Liao whose evidence, with some reservations, was accepted by the judge.

29. Ground 4 is a submission that the judge erred in finding that the 136 motorcycles were stolen.

30. The evidence at trial established that four of the motorcycles were stolen. Their respective owners had come from Taiwan to testify to that effect. These vehicles were stolen on three days between 5th and 8th October. However, there was other evidence for the judge to consider in relation to all 136 vehicles. Leaving aside the fact that Liao himself believed the motorcycles to be stolen goods, which could only amount to evidence of his belief, also to be considered was the manner of their storage (which is graphically demonstrated in the photographs), the false description given to the cargo and the fact that all the vehicles had, with the possible exception of one, had their vehicle number plates removed. The judge found that there was an irresistible inference to show that all the vehicles were stolen and we have not been given any reason to interfere with that finding. The motorcycles had been squeezed into the container like sardines into a can. The circumstances were such that this inference was practically overwhelming. However, there was a further factor which leads us to the fifth ground of appeal.

31. Ground 5 complains that:

"The judge erred in applying the doctrine of recent possession .... when it is alleged that the Applicant handled for another person's benefit."

32. Mr. Grossman relied upon R v Wong Wai-hung, (1997) 3 HKC 146, where Liu J.A., giving the judgment, said at 148E:

"The second charge is one of handling stolen goods by dishonestly assisting in the retention, removal, disposal or realization of stolen goods by or for the benefit of another person. Perhaps we should pause here to stress that the doctrine of recent possession is wholly irrelevant to this other method of handling stolen goods, namely, dishonestly handling for another person's benefit. See R v Sloggett [1972] 1 QB 430 at 433-434, [1971] 3 All ER 264 at 267, (1971) 55 Cr App R 532 at 537, per Roskill J. (as he then was)."

33. The appeal in Wong Wai-hung was allowed because, as the court stated, "both the judge's reasons for verdict and the charge as framed" were defective. R v Sloggett had been cited in argument to support the contention that in a "second limb" handling charge the words "by or for the benefit of another" must be included where it is appropriate to do so.

34. In Wong Wai-hung, the charge did not include the words "the benefit of another person" and was found to be defective for that reason. Furthermore, it was said that the judge had failed in his reasons to exclude the possibility that the appellant was acting for his own benefit. However, Sloggett was never an authority, nor was it cited as an authority, for saying that the so-called doctrine of recent possession could not be applied to all forms of handling, whether receiving (first limb) or assisting in one way or another (second limb).

35. Even if Sloggett may once have seemed to provide support for the argument that recent possession could only apply to receiving (first limb) handling rather than "second limb" handling by what is generally referred to as "assisting", this has long since been removed by the English Court of Appeal's judgment in R v Ball and Winning, (1983) 77 Cr App R 131, as both Mr. Grossman and Mr. Cheung pointed out. It is worth repeating in full the relevant passage in that judgment which is to be found on page 134 in view of the large number of applications reaching this court in relation to recent possession. McCullough J. said:

"(Counsel) who appears for both Winning and Ball, submits that the learned Judge misdirected the jury in a passage which runs as follows: 'What about the handling charge so far as the other two are concerned? Members of the jury, a similar principle applies. If a defendant is found handling stolen property in the sense that he is in possession of it or in control of it or in physical control or has physical contact with it, assisting somebody else who has got possession of it to dispose of it for instance - as in this case the prosecution allege - very soon after the property is stolen, you may again think and the law thinks that may call for an explanation. It is entirely for you, but in the absence of some innocent explanation you are entitled to infer against those people charged with handling what the law calls guilty knowledge; in other words, that they knew or believed the property they were dealing with was stolen property.'

(Counsel) referred also to a later passage, but the substance of the misdirection which he alleges is contained in the passage which I have just read.

His submission shortly is this, that common sense suggests that a person in control of recently stolen goods should be asked to account for his possession, and an adverse inference should be drawn as to his state of mind should he give no credible explanation; that such an inference should not be drawn against a person who merely has physical contact with such goods and is acting under the direction of someone who has them in his possession. In short the so called doctrine of recent possession should apply only to those whom the jury find to be in possession of recently stolen property and should not apply to those who are merely assisting other people to retain, remove, dispose of or realise such property.

There is no direct authority upon the submission which (counsel) makes, save for one short passage in Sloggett (1971) 55 Cr.App.R. 532; 11972] 1 Q.B. 430, to which I shall refer. None of the authors to whom reference is ordinarily made in such cases deals with the submission, save for Professor Griew in The Theft Act 1968 and 1978, (4th ed., 1982), at paragraph 13-23 on p.184, a passage to which I shall refer. The question has to be considered on principle and logic.

The so called doctrine of recent possession is misnamed. It has nothing to do with goods recently possessed. It concerns possession of goods recently stolen. It is not even a doctrine. It is in fact no more than an inference which a jury may, or may not, think it right to draw about the state of mind of a defendant who is dealing in goods stolen not long beforehand. It is based on common sense.

Stolen goods frequently pass quickly from hand to hand. Many of those who deal in them knowing or believing them to be stolen tell lies when they are asked to explain how the goods came into their possession. Others prefer to give no explanation. That has been the experience of the courts for generations. So when a defendant is found to have been in possession of goods recently stolen and either gives no explanation of how he came to acquire them innocently or gives an explanation which is patently untrue, it is the practice of judges to tell juries that they may, if they think it right, infer that he acquired them knowing or believing that they were stolen. The innocent man has nothing to fear from this. He has no need to lie. He will, as a rule, be only too willing to give his explanation. It is, in any event, an inference which a jury will only draw if they think it right to do so.

Before the Theft Act 1968 came into force on January 1, 1969, there was no offence of handling stolen goods. The governing provision was section 33 of the Larceny Act 1916, which made it an offence for a person to receive stolen property knowing that it had been stolen. Receiving meant receiving property into his possession or control. Section 22 of the Theft Act 1968 created the offence of handling. This provision is wider than the old one. It embraces two kinds of handling: the first is essentially the old offence of receiving and the second is what I shall call, for brevity, assisting.

The words of section 22(1) are as follows: 'A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or 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.'

Inevitably every case in which the question arose prior to 1969 was a case of receiving, and many of these cases therefore touched on, or turned on, the question of whether it could be said that the goods passed into the possession or control of the defendant.

There is, in the view of this Court, no reason in logic or justice why, since 1969, it should be permissible to draw the inference where the defendant has received recently stolen goods into his possession, but impermissible to draw it when he is merely assisting somebody else to deal with such goods. The distinction between the two types of handling lies in the relationship between the defendant and the goods. In each his state of mind is the same, and it is in relation to his state of mind that the jury may think it right to draw the inference."

36. We are in no doubt that what was held in Ball and Winning represents a true statement of the law. What had been said in Sloggett, eleven years earlier, was expressly disapproved and, although the court in Wong Wai-hung referred to Sloggett without disapproval, Ball and Winning was not cited in the judgment.

37. The circumstances in the present case were such as to enable the trial judge to consider recent possession and his Reasons for Verdict demonstrate that the judge's approach to this aspect was correct. The judge said:

"In purporting to act on behalf of the named consignee, Geelong Industries Limited, in receiving this container, the defendant was acting fraudulently, on the evidence. The admitted facts are that Geelong Industries Limited is in the business of manufacturing watch straps and that at no time did it import this container or its contents, and it never authorised anybody to import it on its behalf. Nor did it at any time authorise anybody to use the company chop on any of the documentation involved. It is a further fact that one of its chops had gone missing in September 1997 following an exhibition in the Convention and Exhibition Centre in Wan Chai, and the chop had never been recovered."

Having then turned to the property in question, and having found that the goods were stolen, he went on to say:

"The doctrine of recent possession applies to these four motorcycles and I note, as I have already made clear, that the defendant's explanation for his possession of these recently stolen motorcycles was completely unacceptable and clearly untruthful."

38. The judge continued by saying:

"I note that in the present case, on the evidence, a copy of the manifest, describing the consignment as being a container-full of 1,200 cartons of carved wooden doors, was in the normal course sent to the Customs & Excise Department. This cargo would, therefore, have been subject to Customs & Excise duty in the normal way, as carved doors.

In my view, the only reasonable inference to be drawn from all the evidence, or to state it another way, an irresistible inference which falls from all the evidence, is that all of these motorcycles had been stolen, all 136 of them, and that the defendant at all material times knew that they had all been stolen. It was that knowledge which explained the deceptions which the defendant practised in dealing with the documentation and procedures necessary for securing the release of the container, and also the considerable lengths he went to conceal the fact that he was, in fact, the true consignee of this container. It was the same knowledge on his part that he was receiving a container load of stolen second-hand motorcycles which, in my view, caused him to be so uncomfortable, evasive, hesitant and unsure throughout his record of interview with the police, and to tell the lies which he told in that interview."

39. The case against the Applicant was a very strong one. Clearly, the circumstances were highly suspicious and called for an explanation. This was provided to police but rejected in the light of all the evidence by the judge. This, in its turn, gave rise to an inference of guilty knowledge on the part of the Applicant.

40. This ground fails and it follows that ground 6 must likewise fail because it alleges that the judge erred in concluding that the Applicant knew or believed that the 136 vehicles were stolen. As we have indicated already, the judge was fully entitled to reach this conclusion.

41. Mr. Grossman abandoned the sixth ground of appeal, leaving the seventh ground which alleged that the judge erred in finding that Exhibit P18 was a copy of the manifest that was sent to the Customs and Excise Department. We do not find it necessary to deal in any depth with this ground. Undoubtedly, as the facts earlier outlined show, alterations had been made to the manifest. We have been provided (at page 466 in the Appeal Bundle) with what in the trial was accepted by the judge as a copy of the altered manifest showing Geelong to be the consignee of 1200 cartons of wooden carved doors. We accept, as Mr. Grossman put it, that the prosecution had to prove that the goods had been wrongly described. There was an abundance of evidence to this effect and the judge dealt with the matter in this way:

"As regards the charge (of importing an unmanifested cargo), the evidence was that it is the carrier's (Sea-Land's) statutory duty to submit a manifest in relation to each import to the Customs & Excise Department, describing the consignment. That was done in this case. Exhibit P18, a manifest describing the cargo as being wooden carved doors, was sent to the Customs & Excise Department The fact that this Exhibit 18 was, in fact, a copy of the document that was sent to Customs & Excise and was stored in the computer and retrieved from the computer on 29 December last year, presumably for the purposes of this litigation - does not introduce any doubt about the accuracy of the evidence that it was indeed a true copy of the manifest which was sent to Customs & Excise. I note that no suggestion was put to the relevant witness that it was not accurate."

42. We are not impressed by the argument that P18 was not a copy of the manifest. Plainly it was.

43. Accordingly, for the reasons we have given, leave to appeal was refused and the application was dismissed. An application relating to sentence was earlier abandoned in writing. We note, in passing, that the sentence of 21/2 years for this well-planned criminal enterprise, involving 136 motorcycles, was remarkably lenient.

Representation:

Mr. Clive Grossman, S.C. & Mr. Eric Kwok instructed by Messrs. Leo K.W. Lok & Co., for Applicant.

Mr. Cheung Wai-sun, D.P.G.C. for D.P.P./Respondent.