Chan Fai v. The Queen
Read the full judgment text of CACC 321/1975 on BabelCite. This Court of Appeal judgment.
1. The Appellant was charged with robbery, but was convicted of handling stolen goods knowing them to be stolen. He appeals against conviction and sentence.
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CACC000321/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 321 OF 1975 -----------------
----------------- Coram: Huggins, McMullin & Cons, JJ. Date of Judgment: 8th September 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Appellant was charged with robbery, but was convicted of handling stolen goods knowing them to be stolen. He appeals against conviction and sentence. 2. The judge found that four men robbed the watchman of a godown of eight coils of galvanised iron strip at 3:15 a.m. on 18th August 1974, and that finding is not disputed. The watchman was unable to identify any of the robbers but he said that none of them appeared to him as tall as the Appellant. The evidence by which it was sought to connect the Appellant with the offence was as follows. The Appellant is the owner of the Sheung Fai Sea Land Transportation Company and owns, inter alia, a lorry registered with the number BE4708. That lorry was found near the Appellant's place of business at about 7 p.m. on 19th August with the stolen property on board. The same lorry had been used by four unidentified persons to deliver the stolen goods to a godown at Kwai Chung at about 4 a.m. on 18th August, i.e. within an hour of the goods' being stolen. The four men gained access to the Kwai Chung godown by use of the Appellant's name, but there was no direct evidence that he had authorised this use of his name. Nevertheless there was evidence that some days earlier the Appellant had arranged with a man called LI Por that the Appellant should be allowed to store some goods in that godown. It is not clear to us whether LI Por had the right to allow the Appellant to use the godown or whether, having a right to store his own goods in the godown, he was merely lending his name to the Appellant and, vis-a-vis the godown, was treating any goods of the Appellant as though they were his own goods. However, nothing turns upon this. LI Por had gone with the Appellant to the Kwai Chung godown and "introduced him to the watchman there, one FUNG Sang. It was by reason of this introduction that FUNG Sang subsequently allowed the goods to be deposited, but he was justifiably suspicious of the circumstances in which the deposit was made and later on the morning of 18th August he informed LI Por of it. Whilst he was unable to identify any of the men who came on the lorry, he identified the lorry itself as one owned by the Sheung Fai Sea Land Transportation Company and bearing the registration number BE4708. After hearing from FUNG Sang LI Por in his turn tried to communicate with the Appellant and, when he eventually tracked him down, asked him to remove the goods without delay. Subsequently the Appellant did remove the goods from the godown - on the afternoon of 19th August - on board his lorry BE4708 and he left them in the place where they were found by the police. The Appellant has apparently deposited no goods, or no other goods, in the godown in pursuance of the permission given to him by LI Por. 3. One other piece of evidence was relied upon by the prosecution, namely that on the morning of 16th August the man who was employed by the Appellant to drive the lorry BE4708 and who had one of the two keys to the lorry (the second being with the Appellant) found the lorry was not in its usual parking place. The Appellant told him that he had lent the vehicle to somebody. Shortly afterwards this driver was sent to collect the lorry and found that the large characters "Sheung Fai Hong" which has been on the lorry had been "painted off". When he informed the Appellant of this the Appellant merely said "Let it stay that way because we are in a hurry to transport something", but on 19th August the Appellant said that there was not much work to do and asked him to repaint the characters. The apparent conflict between this evidence and the evidence of FUNG Sang to the effect that he saw the characters "Sheung Fai Hong" on this lorry at about 4 a.m. on 18th August has not been resolved. 4. The defence, which was disbelieved by the judge, was that the goods were never handled by the Appellant but were probably handled, if not actually stolen, by a man called LEUNG To. It does not seem to have been disputed by the Crown that LEUNG To was the owner of another transportation business with an office near that of the Appellant. The Appellant claimed to be on friendly terms with LEUNG To and to have allowed him the use of his (the Appellant's) lorries on several occasions, though he did not attempt to explain the use of lorry No. BE4708 (whether by LEUNG To or by anyone else) on the night of the robbery. The Appellant said that on the occasion when LI Por introduced him to the watchman FUNG Sang LEUNG To was present and was in fact also introduced to FUNG Sang. LI Por, on whose evidence the Crown largely relied, agreed that LEUNG To was present on th t occasion but he and FUNG Sang both denied that he was introduced. It is, however, sufficient for the purposes of the Appellant's case on the appeal that he is able to show that LEUNG To may have been aware of the arrangement between LI Por and himself (the Appellant) and could have used that knowledge to effect a deposit of goods in the godown without his knowledge. It was part of the case of the Appellant that when LI Por asked him to remove the goods from the godown he did so to accommodate both LI Por and LEUNG To and not because he had any interest (legal or otherwise) in the goods. LI Por agreed that when he asked the Appellant to remove the goods the Appellant' immediate reaction was to say th t he would have to get in touch with LEUNG To, and it has been strongly argued that th t tended to support the defence put up, which was further supported by the undisputed fact that LEUNG To has disappeared and canno be found. 5. In convicting the Appellant the judge indicated the offence to be "handling stolen goods in that [the Appellant] did at about 4 a.m. on 18th August 1974 handle the goods the subject of the charge knowing them to be stolen. We gave leave to argue grounds of appeal additional to those stated in the Notice of Appeal, but as the additional grounds were also numbered from "1" it was sometimes difficult to know which ground was being argued at a particular time. Under the heading of "Ground 1" counsel contended that there was no evidence to show either that the Appellant was handling goods at 4 a.m. or that he knew they were stolen (presumably under Ground 1 of the original grounds), but he further argued that the conviction was bad because it was not clear under which limb of s.24(1) of the Theft Ordinance the judge found that the case fell (presumably under Ground 1 of the additional grounds, although it would seem that the argument fell more comfortably under Ground 4 of the additional grounds). 6. We will consider first the second of those arguments. Sub-s.(1) of s.24 reads:
The position is identical to that under s.22 of the English Theft Act 1968, which has been the subject of much litigation. Mr. Sedgwick's point is that where an indictment is laid under these sections the particulars must show the nature of the "handling" alleged and, where appropriate, should contain two counts, one framed with reference to the first limb of the sub-section and one framed with reference to the second limb. It seems to us that there may be some conflict of principle between the cases cited to us and those more directly concerned with the subject of duplicity, but it is not necessary to consider this matter further in the present case: we think Miss Kam is right when she submits that the present case is distinguishable in that it was a case where the charge sheet contained no charge of handling. Mr. Sanguinetti, who appeared for the Appellant at the trial, in his final address pointed out that he was under difficulty as he had no particulars as to the alleged method of handling. Where might well be a case where the defendant was seriously prejudiced if he were not told the basis upon which the court might consider returning an alternative verdict (particularly where there was a trial before a judge without a jury) but in the present case we are satisfied that the Appellant was not prejudiced: there could have been no doubt that if the Appellant were to be convicted of handling it would have to be under the first limb of s.24. The prosecution, of course, alleged to the last that the Appellant was guilty of robbery. Their case was based upon the Appellant's being one of the four men who actually stole the goods and upon evidence which, they said, showed him to have been in possession of the goods at about 4 a.m. Mr. Sedgwick argued that as the judge acquitted the Appellant of robbery he necessarily found that the Appellant was not in possession of the goods at 4 a.m.: there was no reason to believe that he received the goods from the robbers between the time of the robbery and the time when the goods were delivered to the godown or that he was told between those times that the goods had been stolen. Moreover, Mr. Sedgwick submitted, if (and this never appears to have been suggested in argument) FUNG Sang was an agent of the Appellant and the Appellant then knew that goods were going to be stolen and delivered to the godown, the Appellant would still be guilty of robbery as what Smith and Hogan call "a secondary party": accordingly that part of the verdict which found him not guilty of robbery negatived the possibility of a conviction for handling based on those facts. 7. Where a conviction rests upon evidence of recent possession it appears that it may be proper to convict the defendant not merely of theft but of robbery, though not of robbery with violence: Fallon (1963) 47 Cr. App. R. 160. The reason is that the inference is usually to be drawn that he was at the scene of the stealing and would know that the victim was put in fear though he (the defendant) may not have intended that violence should be used. But where there is evidence to su gest that the defendant was not at the scene of the theft, the proper inference to be drawn from evidence of recent possession would probably be that the defendant was guilty only of handling, though it might be that he could be a secondary party to the theft itself. There was nothing here to show that the Appellant knew the goods were to be stolen in a manner which would amount to robbery. 8. The submission is that, by reason of the words in parenthesis in s.24(1) "otherwise than in the course of the stealing", it was not open to the judge in this case to convict the Appellant of handling, for the evidence which would appear to support that conviction would establish that he was a secondary party to the theft. We think that is right, but it does not follow that we ought to allow the appeal and discharge the Defendant. While we agree that the verdict of Not guilty of robbery but guilty of handling was wrong, we are satisfied that if the facts which the judge must have found were sufficiently supported by the evidence the Appellant was clearly guilty of theft and ought to have been convicted accordingly. 9. It is strongly argued that the learned judge failed to attach sufficient weight to the defence set up, which undoubtedly was supported by evidence. Much of that evidence was undisputed and everything turned upon whether the judge believed the Appellant when he said that he did not know the goods were to be stolen and that he took them from the godown solely to oblige LI Por and LEUNG To. If that evidence was unworthy of credit the other evidence was just sufficient to support a conviction. The judge had to consider LI Por's evidence in the light of what the Appellant said. It is contended that the judge should have expressly directed himself concerning the possibility that LI Por was an accomplice, whose evidence would need corroboration, but at no time was it suggested to the judge that LI Por might be an accomplice and, although the possibility existed, we do not think it was obligatory for the judge to refer to it in his Reasons for Verdict. The judge subjected the evidence of these two witnesses to a careful scrutiny and also pointed out a discrepancy between the stories of the Appellant and of his lorry driver. He came to the clear conclusion that the Appellant was an unsatisfactory witness who was not telling the truth. As a result he thought himself compelled to draw an inference of guilt from the prosecution evidence. 10. We have considered carefully all the points advanced in the Appellant's favour, but in the end it would seem that the inference which was drawn by the learned District Judge was the proper inference. Quite apart from the matters which have been mentioned there is much in the Appellant's conduct during the relevant period which does not square well with his pretence to injured innocence. The judge had accepted the driver's evidence that the company's name had been totally painted out upon the lorry. This had been done while it had been confided to the care of LEUNG To, yet at no time does the Appellant ever seem to have challenged LEUNG To upon this matter and he contented himself with the suggestion which was however rejected by the judge, who accepted the driver's evidence. That, one would have thought, for a start was a singularly disquieting occurrence. Following upon that, when LI Por rang the Appellant on the Sunday morning with the information that the Appellant had caused goods to be put in LI Por's godown one would have thought that he would have been eager not merely to deny this, and to suggest that it must have been done by LEUNG To (which he did), but, in view of the agitated nature of the telephone call, and the obvious implication that there was something wrong with the goods, also at once to have set out resolutely to track down LEUNG To and have the matter out with him. However, having made one brief visit to the latter's premises at the ground floor of the same building in which the Appellant's premises were situated, he appears to have done nothing more about it on the Sunday. According to him, the whole matter impinged so little upon his mind that he had forgotten about it on the Monday morning. Then at about 9 o'clock on that morning his driver approached him with the information that once again his lorry had been found in a condition which suggested that it had been tempered with and that the engine had been turned on by somebody. Surely this in conjunction with what LI Por had told him already must then have alerted him to the possibility that his lorry had been wrongly used by LEUNG To in taking the goods to the godown. So far, however, was he from at once mounting an intensive search for LEUNG To that he did not apparently do anything else, and, when he met LEUNG To, it was quite by accident upon the stairs as he went down to take his breakfast shortly after 10 o'clock. Even then, and despite what LI Por had said to him on the previous day and what his driver had only just then said to him, he did no more than greet LEUNG To and continue on his way to breakfast. It was only after he had returned to his own premises and had been informed that LI Por had been on the telephone once again concerning these goods that he bestirred himself to go down and broach the matter with LEUNG To in the latter's own premises. It does not seem possible that he would not, if he were innocent, at that point have had at least a lively suspicion that LEUNG To had been up to no good and that he had appropriated the Appellant's lorry for an unlawful purpose. All he did however was to ask LEUNG To to have the goods removed and he was, apparently, quite satisfied when the latter said that he would do so "in a moment". Thereafter there followed the series of telephone calls with LI Por which finally resulted in the latter's going with some of the Appellant's fokis on the afternoon of Monday to remove the goods. This was not the behaviour of an innocent man, and, asking all of this together with the matters upon which the learned District Judge expressly relied, we cannot think that the judge came to a wrong conclusion upon the facts. 11. The result is that we allow the appeal against conviction only to the extent that we substitute a verdict of Not guilty of robbery but guilty of theft for that of Not guilty of robbery but guilty of handling. We are unable to say that the sentence of twelve months' imprisonment was manifestly excessive and the application for leave to appeal against sentence is dismissed. 8th September 1975. Representation: |