The Queen v. Tsang Hing Wah

HCMA001312/1989

HEADNOTE

Possession of implements intended for theft - must relate to a future offence which the accused intended to commit. Question of what degree of entry necessary to constitute burglary, R. v. Collins (the rapist who kept his socks on, considered at p. 3).

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1312 OF 1989

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BETWEEN

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Coram: Penlington, J.A. sitting as an additional High Court Judge

Date of hearing: 10 November 1989

Date of delivery of judgment: 10 November 1989

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JUDGMENT

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Penlington, J.A.:

1. This is an appeal against conviction on a charge of being found in possession of articles for use in the course of or in connection with theft. It was the Crown's case that the articles, a pair of gloves and a screwdriver, were for use in connection with burglary about to be committed in a hair-dressing salon in North Point.

2. There was evidence, accepted by the trial magistrate, that at 2:30 a.m. on 6th September, 1988 a Mr. LAN Wing Kim was going home from work and at the junction of Tanner Road and Kam Hong Street he saw a white goods van with its lights on and the engine running. There were four or five men in the van. A few moments later when he got home he looked out from his balcony and he saw two men sawing at the bars of a window at the rear of No. 4, Tanner Street, a hair-dressing salon. He dialled 999 and reported the matter. He then went and had a shower. When he came back to the balcony he saw that one of the men, whom he identified as being dressed in red, had been arrested. It is clear that that man was not the Appellant but was in fact a co-accused (D1).

3. There was also evidence from police officers that following the information received from Mr. Lam they went to the scene and on arrival they found four men in the van including the Appellant and D1. They also found that some bars had been sawn through in the window of the salon. In the van, together with the four men, was a hacksaw and forensic evidence showed that it was the same one that had been used to cut the bars from the windows of the premises. Traces of paint from the saw were found on D1's clothing. On that evidence D1, who was dressed in red, was convicted of attempted burglary.

4. The Appellant made a statement and said that he was a construction worker, he was out for a joy ride with his friends, had a few drinks and then subsequently parked where the van was found for perfectly innocent purposes. He knew nothing about the sawing of the bars and the gloves and the screwdriver were tools of his trade which he had simply forgotton to leave behind when he left his construction site in Peak Road. Evidence from the foreman of that site, however, was that the Appellant had not been there for some weeks before the 6th of September.

5. From the authorities which have been cited to me by Mrs. Jackson-Lipkin, who appears for the Appellant, it would seem that the 1st accused could perhaps have been convicted not of attempted burglary but the substantive offence because it is clear that the bars were within the premises and there are decisions such as R. v. Bailey, 1888, Crown Cases Reserved, that where bars or any part of a building is broken that is sufficient to constitute the offence of burglary and that the accused does not have to actually enter the premises. Mrs. Jackson-Lipkin submits that just a hand going into the premises to take out the bars having been sawn through would be enough to constitute the offence, Odgers 1972 C.L.J. 194. There is however also authority in R. v. Collins 1972 56 C.A.R. 554 that there should be "effective and substantial entry" and the earlier common law cases on this point should be ignored following the enactment of the Theft Act, 1968.

6. That authority was however queried in R. v. Brown 1985 Crim.L.R. 212 where it was suggested that the real test was whether there was "effective" entry. It may be that Collins was decided on its own facts which as Edmund Davies L.J. said were "as extraordinary a case as my brethren and I have ever heard on the Bench or at the Bar". The evidence there was that on seeing a young lady naked in bed the accused removed all his clothing bar his socks before entering the room. He had intercourse with the lady who did not realise, she said, that the intruder was not her boy-friend until some time after the alleged offence had taken place. Apart from the interesting legal principles involved there was considerable speculation in the Court of Appeal as to why an intruder bent on rape should keep his socks on. Subsequent authorities have shed little light on that point and as it had minimal relevance here I did not invite submissions from counsel.

7. That the offence of burglary had already been committed is relied on to show that the trial magistrate was wrong in holding that the gloves and screwdriver were for use in a future burglary. There must be a theft related offence intended to be committed, not one which had already taken place. It was held in R. v. Ellames [1974] 1 W.L.R. 1391 that where a robbery had been committed and the accused were later found in possession of articles fit for use in a robbery, Section 25(1) of the Theft Act, which corresponds to our Section 27(1), did not apply. At p. 1397 Browne J. Said,

"In our view, to establish an offence under section 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat."

Here the Crown's case was that the Appellant was in possession of these articles and that he intended to use them to commit burglary in the premises which had already been opened up by D1.

8. While it may be that D1 had already committed the substantive offence of burglary there was no evidence that the Appellant had also done so and it is his conduct, what he had done and what he intended to do, which is relevant. It is submitted that the magistrate should not speculate as to what the Appellant intended to do and that there was in his statement an explanation showing he was in the van for a perfectly lawful purpose. (It is however to be noted that he did not give evidence in support of that statement). With respect that cannot be right. The magistrate had to be satisfied from all the evidence that the Appellant intended in future to commit burglary in the hair-dressing salon and he was going to use the gloves and screwdriver to do so. That is in some way to speculate as to future conduct but that is what the law requires him to do. We must of course be satisfied of the accused's future intentions beyond reasonable doubt, which requires cogent evidence, but there is nothing here which suggests that the trial magistrate was not fully aware of that.

9. I am satisfied here that the magistrate had ample evidence before him that one, possibly two, of the occupants of this van had sawn through the bars. There was also evidence which would justify his finding that this was the first part of the operation and that if the other occupants of the van had not been disturbed they would have entered the premises through the window which had been opened up by D1.

10. I am satisfied that on the evidence that was before him the magistrate was entitled to come to the view that the gloves and the screwdriver were in the possession of the Appellant in connection with a future burglary on his part.

11. This is a well thought out and carefully presented legal argument which clearly did have some basis, but I am satisfied that although one of the men in the van may have committed burglary, that does not mean that the other men of the van, particularly the Appellant, did not have the intention of themselves committing that offence in the immediate future. Therefore the magistrate was right in finding that he could distinguish Ellames on which the Appellant relied.

12. The appeal must therefore be dismissed.

Representation:

Mr. Patrick Loftus C.C. for Crown

Mrs. Lucille Jackson-Lipkin inst'd by Kenneth C.C. Man & Co. for Appellant.