The Queen v. Tai Shing Jewellery Co and Another

HCCC000278/1982

N.B. Upon further order made by this Judge this Judgment supersedes the one previously issued to you on 22.6.1983

Headnote

Sale of goods - stolen coins sold by robber to innocent shopkeeper - Section 24 of Sale of Goods Ordinance - sale in market overt - whether sale to a shopkeeper in his shop gives him a good title. Held that the section only protects a purchase from the shopkeeper.

Date of hearing: 13th May, 1983

Date of judgment: 22 JUN 1983

IN THE HIGH COURT OF HONG KONG

(Criminal Jurisdiction)

Criminal Case No. 278 of 1982

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Between

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Coram: Hon. Penlington, J.

Date: 22 JUN 1983

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JUDGMENT

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1. The accused in this case LO Yick-fat was convicted by a jury on the 4th of January 1983 and was sentenced by me to 5 years' imprisonment on a charge of robbery.

2. Included in the indictment was an allegation that part of the goods which had been stolen was some silver coins valued $140,000, the property of one Lui Sui.The evidence emerged that these coins had been acquired by Mr. Lui under somewhat in dubious circumstances, having been smuggled out of China. However there is no doubt that at the time of the robbery they were his property.

3. The gold coins were sold by the convicted person to the Tai Shing Jewellery Company ("Tai Shing"), No. 17 Kau Wah Street, Shaukiwan, Hong Kong. The coins were sold for full market value and there is no reason to suppose that the owners of Tai Shing had any reason to doubt that the person is selling them the silver coins did not have a good title to them. Such however was not the case.

4. Tai Shing now applies for an order that the silver coins should be returned to them, as being the persons entitled to them pursuant to Section 102(2) of the Criminal Procedure Ordinance, Cap. 221.

5. At first sight I could not see that there could be any possible grounds for the application being granted as quite clearly the person from whom Tai Shing obtained the coins did not have any title to them and although full value was given and the company acted in good faith the maxim nemo dat quad non habet applies. Lo Shing having stolen the coins could not give a good title to the jewellery company. Mr. Terence Wai, for the applicant, concedes that such is the case unless he can show that the goods were sold in market overt. He has put forward a very well prepared and presented argument based on the wording of section 24 of the Sales of Goods Ordinance Cap. 26. The section reads as follows :-

"24(1) Where goods are openly sold in a shop or market in the Colony, in the ordinary course of the business of such shop or market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.

6. I am satisfied that the applicant did buy the goods in good faith without notice of any defect or want of title on the part of the seller. It is also quite clear that the goods were sold in a shop. Mr. Wai argues therefore that it makes no difference if the proprietor of the shop is the purchaser and that a strict construction of the section means that whether the purchase is to or from the owner of the shop a good title pasees. Quite properly however he does also bring to my attention the case of Hargreave v. Spink and another, 1891 1 Q.B. 25. There, Wills, J. considered all the authorities for and against the proposition that sales to a shopkeeper should be considered in the same line as sales by the shopkeeper and says at page 32

"therefore the want of any case in which there has been a certificate or decision in favour of such an extension of the custom is I think very much against it. "

He goes on however to say that

"it was not necessary to decide the question because the court was satisfied that the place where the sales had been affected was not a shop. "

7. Mr. Wai seeks to distinguish that case firstly on the basis that what were said concerning the sale in a shop by a customer to the shop-keeper was obiter and secondly that the provision in the Sale of Goods Act 1893 is different to the relevant section in the Sales of Goods Ordinance in Hong Kong. Section 22 of the Sale of Goods Act 1893 reads as follows :-

"22.    Market overt.

(1)    Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller. "

(In a foot-note to the section in Halsbury's Statue of England, it is said "

"In the city of London every shop is a market overt,but only for such things as by the trade of the owner are put there for sale." )

Section 24 of the Sale of Goods Ordinance, Cap. 26 reads

"24(1)    Where goods are openly sold in a shop or market in the Colony, in the ordinary course of the business of such shop or market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller."

(The side note is "market overt".)

While the wording of the two sections is different I am satisfied that the principle relating to sale in a shop is the same.

8. It is I think to be noted that in Hong Kong a pawn broker has been given specific protection by the legislature. When goods are pawned which turn out to be stolen, the pawn broker may apply for the goods to be returned to him or that before they are returned to the owner, some compensation shall be paid. The courts have varied considerably on how, that provision should be applied but there is a specific power to relieve an innocent pawn broker who stands to suffer loss There is no such provision in regard to sale to an ordinary shopkeeper.

9. It is also been argued on behalf of the applicant that there was evidence that the coins seized from the goldsmith shop may have been confused or mixed with other coins which did belong to the shop and which had been acquired from persons who had a proper title to them. At all the times during the trial while naturally Mr. Lui could not positively identify each of the coins the exhibits was treated as being his property and the Crown's case was based on that. I am satisfied I must assume that the coins produced were those taken from Mr. Lui.

10. Having carefully considered the arguments put forward by Mr. Wai for the applicant, I have with some reluctance come to the conclusion that they must fail. I am satisfied that the dicta of Wills J. in Hargreave v. Spink is correct and that the legislation did not intend to afford protection for a shopkeeper who purchases goods in his own shop.

11. The section is designed to ensure that a member of the public who uses a shop to buy goods in the normal way gets a good title. It was not intended to protect a shopkeeper who buys from the public just because he happens to use his shop premises to do so. There are here two innocent persons, each of whom has a claim to the property involved and one must suffer a loss. In this case I am satisfied it must be the shopkeeper. There will therefore be an order that the silver coins the subject of this application, should be returned to Mr. Lui Sui provided he makes application for them to the police within 14 days. Should he make no such application then they should be returned to the Tai Shing Jewellery Company and Mr. Lui can commence civil proceedings if he so wishes.

Representation:

Terence Wai (Peter Hark & Co.) for the let applicant.

2nd applicant (Lui Sui) in person.

Further order suspending the above order for period of 14 days or until the determination of any appeal if filed within that time.