The Queen v. Ng Mou Wo and Others

CACC000279/1984

[Directions on recent possession Aves (1950) 34 C. A. R. 159 to be followed.]

BETWEEN

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Coram: Yang, Silke & Barker, JJ. A.

Date of Hearing: 19 October 1984

Date of Judgment: 6 November 1984

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JUDGMENT

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Sike, J. A. :

1. NG Mou-wo - "D1", WONG Ka-keung - "D2" and WONG Lin-fong -"D3" appeared for trial upon an indictment containing a multiplicity of counts.

2. D1 pleaded guilty to three of those counts and was convicted upon that plea.  He seeks leave to appeal against his sentences of eight years on each count concurrent.

3. D2 was convicted upon two counts of robbery, count 5 and 11, and D3 was also convicted upon those two same counts and a further count, count 4, of handling stolen property.   They seek leave to appeal against their convictions.

4. The evidence as to robbery in relation to the 5th count was that a Madam Lee was asleep in a house, on the 10th November 1983, when she was awakened by some person putting a hand over her mouth telling her not to move and being asked where her money was.  She told the man.  Her eyes were then covered with a towel and she was bound hand and foot. Later she was freed by a sister-in-law who lived in the same house and she then found her premises to have been ransacked.  Amongst the items taken were a Philips radio cassette recorder, one Canon camera and an Italian gold necklace with a jade pendant.

5. The evidence on the 11th count was that in the early hours of the 21st November 1983 a Mr. Li, the proprietor of Yuen Tat Hong, a firm dealing with the export and import of topical fish, was awakened to find a knife pointed at his neck. He was told not to move or else he would be "stabbed to death".  His face was covered with a bedsheet and he was tied up.  He was asked where his money was and a Rolex watch which he was then wearing was taken from him. The robbers then left taking a car key with them but were unable to start a car parked outside.  Mr. Li untied himself.  But when he put his head through the door the robbers were still there and they came and tied him up again.  He lost in the robbery his Rolex watch, cash of approximately $2,000, two crossed cheques drawn on the Wing Lung Bank and a cheque in the sum of $300 drawn on the Hong kong and Shanghai Bank.

6. It was the case for the prosecution that on the 22nd November, that is the day after the robbery in count 11, a Rolex watch was pawned by a person giving his name as CHONG Hoi-chun. This information came to the notice of the police through the pawnbroker and on the 23rd November, at about 6:30 in the morning, a police party went to the address given which was 571, Fuk Wing Street. There they found CHONG and the 2nd defendant. CHONG was a cousin of the 2nd defendant and he informed the police that the watch had been given to him by the 2nd defendant to pawn.  It was the 2nd defendant who then said that he had bought the watch from two friends whom he knew as Wo Chai and Chau Chai. The 2nd defendant alleged an assault by the police at that time.

7. The 3rd defendant was arrested on the 26th November 1983 at a restaurant in Shanghai Street.  Two persons were with him.  As the result of statements made by the 3rd defendant, the police went to the address of one of his companions, WONG Wai-tung, together with the 3rd defendant, where they found two radio cassette recorders.  The 3rd defendant was alleged to have said that those two recorders were obtained from robbery.

8. In respect of both the 2nd and the 3rd defendants, the Crown relied mainly on the confessional statements which they had made in relation to all the counts upon the indictment.  It also relied on the doctrine of recent possession of stolen property or the references to such property in those statements in respect of certain of the counts.

9. The fact that the defendants were acquitted on a number of the other counts of robbery based upon those confessional statements has led Mr. Lunn, who appeared for both of the applicants both here and below, to submit that the jury's verdicts were inconsistent.   He has produced an attractive analysis of the statements referable to each count and where, if it applied, property recovered.  The trial judge had left the issue of what, if any weight, the jury should put upon those statements very clearly to them. It is noticeable that where there was nothing more than a bald admission contained in a statement the jury acquitted.

10. Briefly, as regards D2, the position was this:

(a)	On count 3 there was a bald admission.  It was D3 who led the police to recover some property.  The jury did not hold this as evidence against D2 and they acquitted.
(b)	On count 5 there were admissions and there was evidence of the recent possession of the recorder.  He was convicted.
(c)	On count 8 there was a bald admission without the recovery of any property.  He was acquitted.
(d)	On count 10 there was a bald admission.  No property was traced and the reference in the statement to a knife being placed on a cupboard could have been information known to the police at the time the statement was made.  The jury acquitted.
(e)	On count 11 there was a detailed admission and there was evidence of the recent possession of the Rolex watch.  He was convicted.

11. In respect to the 3rd defendant, leaving aside for the moment the 4th count with which I shall deal later:

(a)	On count 5 there was a confession and he took the police to recover property.  He was convicted.
(b)	On count 6 there was a bald admission and nothing more.  He was acquitted.
(c)	On count 8 there was a bald admission and he was acquitted.
(d)	On count 11 there was an admission and a reference to the 300 dollar cheque stolen.  He was convicted.

12. It is Mr. Jennings' submission that these were logical verdicts of the jury and it is only when they looked for and found supporting evidence that they convicted.

13. Despite the thoroughness of Mr. Lunn's analysis and the attraction it had at first blush, we think that these verdicts were proper verdicts and were not as inconsistent as he would have them to be.

14. The evidence on count 4 in respect of D3 came from Mr. LI Chok-sing who described a Contec radio cassette recorder being stolen from him on the 9th November 1983.  The unfortunate Mr. Li had been the subject of two robberies - one on the night of the 9th November and the other on the 10th November.  These appear in the indictment as counts 3 and 6.  It was in the course of the first robbery that the Contec was taken. In his statement the 3rd defendant had admitted the handling of this recorder and it was made very plain by the trial judge that if the jury found that they could not accept that statement then D3 would be entitled to be acquitted of that offence altogether.  In evidence in his defense, the 3rd defendant had said he had received the recorder from the 2nd defendant.

15. This leads us to the consideration of the directions upon recent possession.  These directions have a bearing not only on the handling charge against the 3rd defendant but on the other counts where property was recovered and upon which the 2nd and 3rd defendants were convicted.  As to the 2nd defendant on count 11 the Judge said this of the explanation given by that defendant:

"Now he has given this explanation that he had bought this wristwatch from Wo Chai, but if you are not satisfied with this explanation then, even aside from the statement, assuming that that statement, you assigned no evidential value whatsoever to that statement, it is still open to you to convict the 2nd defendant of the offence of robbery in the 11th count."

16. He dealt with other counts and with the explanations given and the main complaint of Mr. Lunn is directed at the following passage:

""If the explanation given by him is not accepted by you, then it is open to you to convict him ....."

Our attention has been directed to another passage in the summing-up where the trial judge said:

""Now, members of the jury, in order to ascertain whether he had knowledge or belief that these two articles were stolen goods, you have to take account of those circumstances and also use your common sense, and you may find that the defendant knew or believed the goods to be stolen because he deliberately closed his eyes to those circumstances."

17. It is Mr. Lunn's contention that these directions did not go far enough and that the Judge should have gone on to say that if the jury were left in doubt by the explanations offered then they should also acquit.  He cites in support a short judgment of Lord Goddard, L. C. J., in Aves⁽¹⁾, which is worth setting out in full:

"Where the only evidence is that an accused person is in possession of property recently stolen a jury may infer guilty knowledge (a) if he offers no explanation to account for his possession, or (b) if the jury are satisfied that the explanation he does offer is untrue. If however, the explanation offered is one which leaves the jury in doubt as to whether he knew the property was stolen, they should be told that the case has not been proved, and therefore the verdict should be Not Guilty.

I may add this as an addendum to the formula above stated: If there is evidence that prisoner was in possession of property recently stolen and other evidence as well which tends to show guilty knowledge, then the Chairman should direct the jury so far as they are dealing with recent possession in the terms which I have mentioned, and then go on to deal with the other evidence against the prisoner, if there is any, which may or may not be consistent with the explanation, if any, which he has given."

18. We accept that the Court in Aves⁽¹⁾ was primarily concerned with the offence then known as "receiving stolen property" but as was said in Smythe⁽²⁾ at page 11:

"It is a misconception to think that the circumstances of possession and its relationship in point of time to the commission of the act of theft is a material consideration only in cases of receiving, or handling as it has now become."

19. The directions given therefore assumes importance in this case, in particular because of the nature of the jury's verdict; Each of the accused had given explanation for their recent possession of property.

20. Smythe⁽²⁾ quoted with approval the passage in "Cross on Evidence" (5th edition), at page 49, which followed Aves^(l) Sir Rupert Cross had analyzed all the decisions on this aspect very fully. The passage cited in Smythe⁽²⁾ stopped at the point of the jury being satisfied that the explanation he does offer is untrue but Cross goes on:

"If, however, the explanation offered is one which leaves the jury in doubt as to whether he knew or believed the goods were stolen, they should be told that the case has not been proved, and therefore the verdict should be not guilty."

21. Mr. Jennings has advanced the proposition that recent possession applies only to offences of handling and refers to the state of mind of an accused when found in possession of the property.  He submits that the direction, as it stood, was correct but it would not be wrong, and it is not improper, to leave out the doubt portion. It would equally well not be wrong to say it.

22. We think that the proper direction where recent possession is relied upon in trials for robbery, theft or handling should be that as indicated in Aves⁽¹⁾.   If it is correct in plain handling we can see no reason why it should be different for the other offences.  So in addition to the direction given, the jury should have been told that if the explanations offered by the defendants were such as left them in doubt as to whether the defendants knew or believed that the goods were stolen, then they could not use the recent possession as an assistance to them in coming to their verdict. Because of the manner in which they did render those verdicts, it is clear that they would not have convicted on the bare statements.

23. In the event, the convictions on the 5th and 11th counts in respect of the 2nd defendant and on the 4th, 5th and 11th counts in respect of the 3rd defendant, albeit on the 11th with some reluctance, cannot stand.  We grant the applications, allow the appeals and quash the convictions.

24. We would wish to hear Counsel on the issue of a re-trial.

Sentence

25. The 1st defendant's application for leave to appeal against sentence was dismissed.   He had received a sentence of eight years' imprisonment upon his plea of guilty to three of the robbery charges - the 5th, 8th and 11th counts.  These sentences were ordered to run concurrently so that the totality was eight years.  All the victims in these robberies had been threatened with knives, had been tied up and had their faces covered with cloths or blankets.  The persons from whom the property was taken were not people of substance.  They all lived in fairly remote areas and are entitled to protection.  The trial judge gave full credit to the applicant for his plea of guilty and we cannot say that the totality of the sentence of eight years was in any way wrong.

D2 - D3

26. Having heard Counsel

27. Order

28. That there be a retrial on a fresh indictment: D2 on counts 5 and 11 and D3 on counts 4, 5 and 11.

(1)    [1950] 34 C. A. R. 159

(2)    [1981] 72 C. A. R. 8

Representation:

1st applicant in person.

M. Lunn, Esq. assigned by DLA for 2nd and 3rd applicants.

M. Jennings, Esq. for Crown/Respondent.