To Chun-kit v. The Queen

CACC000305/1978

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 11th December, 1978.

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JUDGMENT

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1. The appellant was found guilty of one offence of handling stolen property and one offence of theft. The first charge relates to a stolen motor-car and the second charge relates to the theft of another motor-car. He was charged with another person, CHIU Wing kwan, who pleaded guilty to various charges. The appellant appeals against his conviction.

2. Various grounds of appeal were submitted to the court. It is only necessary to deal with one. The trial started on the 26th September, 1977 when the then two accused pleaded not guilty to all the charges laid against them. The appellant faced three charges. His companion, the first accused, faced eight charges. There were various adjournments and, on the 17th March, 1978, CHIU Wing-kwan, pleaded guilty to two charges of handling stolen property and two charges of obtaining property by deception. The second charge of handling was the same charge as the second charge on which the appellant was found guilty of theft. CHIU Wing-kwan pleaded guilty before the prosecution case was opened. The Judge said that he would sentence him on the 30th March and he granted him bail.

3. At the close of the case for the prosecution, which was on the 21st March, counsel for the appellant told the Judge that he wished to call CHIU Wing-kwan, and suggested that the case be adjourned until 30th March when CHIU Wing-kwan could be sentenced, after which counsel would put him in the witness box. The Judge refused this request but granted an adjournment until the afternoon of the following day, the 22nd March, 1978. On that day, counsel for the appellant was unable to call CHIU Wing-kwan because he could not be found. In the event, he closed his case. It is understandable that counsel did not ask the Judge for an adjournment to the 30th March on this occasion, since the Judge made it quite clear that he was not disposed to grant such a request on March 21st. In the event, CHIU Wing-kwan was not called.

4. We do not think that this was a correct procedure. We think that the Judge should have allowed an adjournment to the 30th March to enable CHIU Wing-kwan to be called. We note that it was not until at a fairly late stage during the trial that counsel was in a position to know that he wanted to call this particular witness, and we cannot say that the result of the case would not have been different had that witness been called. At best, the prosecution case against the appellant was very thin depending as it did on the uncorroborated evidence of an accomplice. It may well be that had CHIU Wing-kwan been called, the Judge would have reached a different verdict.

5. In the event this appeal is allowed, the conviction is quashed and the sentence is set aside.

Representation:

Eddis (H.H. Lau & Co.) for appellant.

Griffiths for crown