R. v. Wong Chung Man

CACC000289/1996

IN THE COURT OF APPEAL

1996, No.289

(Criminal)

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Coram: Hon Power, Ag. C.J., Mayo, J.A. & Gall, J. in Court

Date of hearing: 12 December 1996

Date of judgment: 12 December 1996

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J U D G M E N T

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Gall J. : (delivering the judgment of the Court)

1. On 16th May 1996, the applicant was convicted of two charges of handling stolen goods in the District Court. He was sentenced to 2½ years imprisonment on each charge and now applies for leave to appeal his conviction in respect of each charge.

2. The evidence led by the prosecution was not in dispute. In respect of each of the charges, the applicant on the date set out in each charge towed a container into, which had been loaded three stolen motor cars, to a transportation company for storage. On each occasion, he used a false name and false identity card number on the storage bill raised by the transportation company. In relation to the first charge of which the applicant was convicted one of the motor cars had been stolen about seven hours before the applicant towed it in a container and in respect of the 2nd charge one of the vehicles had been stolen less than three hours before he towed that container.

3. The applicant testified that at the time of the events he believed he was transporting honestly obtained left hand drive motor vehicles which were to be smuggled into China.

4. The judge found that in respect of each charge the applicant was in possession of very recently stolen vehicles. He transported them to storage depots where he arranged their storage using a false name and false identity card number. For these services, he charged a higher fee that was warranted by the work. His explanation was rejected by the trial judge who reminded himself that the rejection of that evidence did not weigh against the applicant but that its absence left him with no explanation to throw doubt on the case for the prosecution. From these facts, he was sure a proper inference could be drawn that the applicant knew or believed the vehicles he transported were stolen.

5. The first ground of appeal is that the trial judge erred in the manner in which he assessed the credibility of the applicant in that he relied too much on the demeanour of the applicant and too little on his clear record and lack of court experience : that he attributed to the applicant a general knowledge of the prevalence of smuggling stolen vehicles and wrongly drew the inference that the applicant knew the vehicle was stolen.

6. It is clear from the Reasons for Verdict that the judge had in mind both the demeanour of the applicant and his clear record. There is nothing to suggest that he relied too much upon the former and gave too little weight to the latter. The judge noted that the applicant was brought up and educated in Hong Kong and had been in the transportation business for nine years at the date of the offences. He found that the applicant must have been aware of the notorious fact that a great number of motor cars had been stolen in Hong Kong and smuggled into China during that period of nine years. He was entitled to do so. He was also entitled on the facts before him, coupled with the doctrine of recent possession which he correctly set out as contained in R. v. Hall 81 Cr.App.R.206, to draw the inference that the applicant must have been aware that the vehicles he transported were stolen.

7. The second ground of appeal argues that the judge misunderstood the implications of the defence and drew conclusions and inferences adverse to the applicant not warranted by the evidence nor logic.

8. The judge below did not believe the evidence of the applicant that the vehicles which he transported were left hand drive cars to be smuggled to China. Having made that finding, he reminded himself that the burden of proving the elements of the offence lay with the prosecution. He took all the evidence he found to be the true and from it drew the inference that the applicant knew or believed the vehicles had been stolen. There is nothing in this ground of appeal.

9. The third ground alleges that by acquitting the applicant on one charge and convicting on the other two the trial judge was inconsistent. In the first charge, the driver was not the applicant, the fee charged was not abnormally inflated and no false name and identity card number were used. There was no inconsistency in the finding of the judge that he could not be sure that the first charge was proved to the required standard.

10. The fourth ground alleges that the judge relied upon the doctrine of recent possession to establish knowledge or belief of the nature of the goods despite the explanation advanced by the applicant. The explanation given by the applicant was disbelieved. The facts giving rise to the doctrine of recent possession were not in dispute. It was a proper and logical inference to be drawn.

11. The fifth ground argues that the judge relied upon general knowledge as to the prevalence of the smuggling of stolen cars in Hong Kong and was illogical in his rejection of the explanation of the applicant. The notorious nature of the knowledge of the prevalence of smuggling of stolen cars in Hong Kong has been dealt with in respect of Ground 2 and the reasoning of the judge in respect of the rejection of the explanation of the applicant in Ground 3.

12. Ground 6 argues that the trial judge failed to evaluate the charges separately and adopted an incorrect test in his finding that the vehicles had been stolen or that the applicant had believed that they had been stolen.

13. The judge in his Reasons for Verdict sets out the facts of each charge separately. He deals with the timing of the theft of cars and their transport by the applicant separately for each charge.

14. The only time he considers the charges at the same time is where the law and the facts are common to both. There is no indication in his reasons that he failed to properly evaluate each charge on its merits.

15. Application for leave to appeal against conviction is dismissed.

Representation:

Mr D.W. Dick, S.C.C., for Crown

Mr Toby Jenkyn-Jones, inst'd by M/s Sung & Co., for Applicant