The Queen v. Ip Tat-shing and Otheres
Read the full judgment text of DCCC 90/1971 on BabelCite. This District Court judgment.
1. Prior to the Theft Ordinance, where the facts left open a charge of either larceny or receiving it was the practice to lay them in the alternative. The position would then arise as to whether to convict of either the tribunal of fact must be satisfied beyond reasonable doubt as to which of them the accused had committed. That is was it sufficient to be satisfied beyond reasonable doubt that the accused had committed one or the other but as to which be only on the position of saying which the
Cited by 1 case
|
DCCC000090/1971 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CRIMINAL JURISDICTION CASE NO. 90 OF 1971 -----------------
----------------- Coram: R. O'Connor, District Judge Date of Judgment: 17 March, 1972. --------------------------------------------------- EXTRACT FROM JUDGMENT ---------------------------------------------------
1. Prior to the Theft Ordinance, where the facts left open a charge of either larceny or receiving it was the practice to lay them in the alternative. The position would then arise as to whether to convict of either the tribunal of fact must be satisfied beyond reasonable doubt as to which of them the accused had committed. That is was it sufficient to be satisfied beyond reasonable doubt that the accused had committed one or the other but as to which be only on the position of saying which the more probable. 2. In R. v. Langmead (Leigh & Cave Reports 427) 3. When faced with this problem, Pollock C.B. said if there is other evidence consistent with either the accused having stolen himself or with his having received the goods knowing them to be stolen, then it will be for the jury to say which to them seems to be the more probable solution. A strong court of five other judges agreed. Incidentally, Byles J. said that where there was a burglary and men and women found in recent possession, juries almost universally found the women guilty only of receiving "the consideration of her sex inclining their minds to the belief that she did not take any part in the burglary". 4. In The People (AG) v. Mulcahy & Carney 87 Irish L.T.R.137 the appeal court accepted that to convict of receiving someone other than the receiver must be shown to have stolen the goods but applied the dictum of Fitzgerald B., in 5. R. v. McMahon 13 Cox C.C. 275 that "if there was a rational hypothesis that this was so all the judge has to do is to leave it to the jury". 6. In Minister for Industry & Commerce v. Pim 1966 Irish 7. Reports 154 noted 1967 Journal Criminal Law 278 8. Davitt P., obiter said that where a person is in possession of recently stolen goods and it is clear he either stole them or received them knowing them to be stolen, the court or jury being in doubt as to which it is, is not bound to acquit but can select which offence they consider the more appropriate and convict accordingly. 9. In Andrew Obobyo v. R. 1962 E.A. 542 a decision of the Court of Appeal for Eastern Africa, the following passage occurs:
10. In R. v. Flynn 111 Canadian Criminal cases 129 the accused was charged with theft the only evidence being recent possession. On appeal it was argued that there could not be a finding beyond reasonable doubt of theft as the evidence was consistent with receiving. The court held that the rule of circumstantial evidence did not go so far and it sufficed if the judge applied the evidence to the offence actually charged and the jury was satisfied beyond reasonable doubt that the accused was guilty of that charge and they need not consider whether he might be guilty of an offence not charged. To my mind that is really the same result as the other cases though the approach is somewhat different. 11. The decision in R. v. Ratcliffe 1970 Cr.L.R. 661 lends clear support for the view that a jury can convict of handling though having a real suspicion it might be theft. 12. In R. v. Seymour 1954 1 W.L.R. 678 it was held that if there is evidence to support both larceny and receiving they should both be left to the jury. This attitude (like that in The People (AG) v. Mulcahy & Carney) appears to really beg the question. 13. See the commentary to R. v. Ratcliffe - Criminal Law Review and letter in 1971 Cr.L.R.58. Also commentary to R. v. Thompson 1965 Cr.L.R.553. 14. In D.P.P. v. Neiser 1958 3 W.L.R. 757 at 766-767 the Court implies that an inference as to an essential ingredient of the offence may be made on a probability. It is to be noted that the inference was one of two inferences either of which would involve the commission of an offence but the offences would be different. To that extent it is not a matter of guilt or innocence but a question of which offence is he guilty of. 15. I should refer to R. v. Hanmore 1966 Cr.L.R.288 (and commentary thereon) to the effect that a conviction for larceny will not be upheld if there is a serious possibility it was receiving. See also People (AG) v. O'Connor, 1949 Irish Jurist Rep. 25, 14 Journal Criminal Law 309 referred to in Glanville Williams 'Criminal Law' para. 83 n. 3. where it was held that as regards carnal knowledge under Offences against the Persons Act 1861, if the evidence leaves it uncertain whether the girl is just over or just under 10 years there cannot be a conviction under either S.50 or S.51. 16. In R. v. MA Kam-wing, 1966 H.K.L.R. 885 the Full Court in substituting a conviction on appeal did not appear to consider this point but apparently went on the basis that where it was undertain which of two rather similar (but non cognate) offences had been committed it was permissible and proper to convict of the less serious one even though not cognate. 17. I come to the conclusion that as regards theft or handling, when it is established beyond reasonable doubt that the defendant is either the thief or the handler, the choice between them can be made on the balance of probabilities.
Representation: |
Other judgments that cite this case
Further hearings and rulings under DCCC 90/1971