The Queen v. Cheung Chung Yau and Another

HCMA000033/1985

HEADNOTE

Going equipped for stealing - Belief property abandoned - Subjective test - Effect of admission under Section 65C Criminal Procedure Ordinance。

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 33 of 1985

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BETWEEN

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Coram: Hon. Bewley J. in Court.

Date of hearing: 24 January 1985

Date of delivery of judgment: 2 February 1985

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JUDGMENT

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1. The appellants were convicted of going equipped for stealing contrary to Section 27(1) of the Theft Ordinance. The prosecution case was admitted in toto on their behalf under Section 65C of the Criminal Procedure Ordinance. The facts admitted were these:

"At around 1120 hours on 28th October, 1984, PW's 1 & 2 were on High Rise Patrol at the 3rd floor of Block 15, Tung Tau Estate, when they noticed two Chinese males (later known to be D1 & D2) at the opposite side of the block, on the 2nd floor, lifting a whole window frame out of one of the rooms.

The PW's then proceeded down to D1 & D2's location and, upon arriving there a few moments later, they found it to be Room 239, which was a vacant unit. By this time D1 & D2 had already removed the whole iron window frame with glass panes. Upon questioning by the PW's the Defendants revealed that they did not live at the room, did not have any permission from the Housing Department to remove the window, and that they believed that they could take the window because it was from a vacant unit. D1 & D2 were arrested and taken to Wong Tai Sin Police Station at 1126 hours after Exhibits 1-5 were seized from the ground outside Room 239.

The Defendants were jointly charged for the above two offences on 8.11.84 and bailed to appear at Sari Po Kong Magistracy at 0900 hours on 10.11.84."

2. The defence was, as implied in paragraph 2 of the admitted facts, that the defendants believed the window frame had been abandoned by the previous owner and they were therefore entitled to take it.

3. The appellants were also charged with stealing the window frame, which was alleged to be the property of the Housing Department. In the face of uncontradicted evidence by the appellants that such metal window frames had been installed in Tung Tau Estate by individual occupants over the years, the magistrate was not satisfied that ownership had been proved and acquitted them on this charge.

4. The 2nd appellant is an employee of the 1st appellant's father, who owns an electrical appliance company in the same estate. The 1st appellant was aware that many units in the estate were vacant. Initially all the window frames were wooden, but some occupants installed metal frames for the sake of security. The 1st appellant decided to remove one of these window frames from a vacant unit, in order to install it in his own premises, and recruited the 2nd appellant to help him.

5. On 28th October, last year, they set forth on their mission, equipped with two screwdrivers, two hammers, a chisel and an iron bar. The 1st appellant said in evidence that, when they reached the premises in question, the window had already been removed and was lying in the corridor outside the premises, the door of which was locked. It had not been their intention to go inside; the window could be removed from the corridor. It did not occur to the 1st appellant to get permission from the Housing Department because, if the flat was abandoned, everything in it was also abandoned.

6. The magistrate found that, since the window had been taken down already and since the appellants believed it had been installed by a former occupant, they also genuinely believed it was abandoned property, which they were entitled to remove.

7. He calculated, however, that they would have used the tools to remove the window had it been necessary. If the window had still been in place, it would not have been reasonable to have regarded it as abandoned. They, therefore, had the tools for the purpose of committing theft.

8. There are, with respect, several flaws in this argument. In the first place, the reasonableness or otherwise of a person's belief in such circumstances is not relevant. The question is whether or not he actually did believe the article had been abandoned. If the court finds that it was an unreasonable belief, that matters not. Unreasonableness is merely something that the court is entitled to take into account in coning to a conclusion as to what really was in the defendant's mind.

9. Even if the magistrate may be understood to have intended to say that he did not accept that the appellants believed that when they set out with the tools, the window had been abandoned in situ, ail offence may not have been committed. It is alleged that they were equipped for stealing outside the premises in question. By that time, however, they had no intention of stealing, because they believed the window was abandoned property, and cannot be said to have had the tools with them for that purpose. Although the location of an alleged offence need not normally be included in the particulars, it was held in R v Allamby & Nedford 1974 3AER 126 that 'place' is a material averment in a court alleging contravention of Section 1(1) of the Prevention of Crime Act. It is, however, not necessary for the purposes of this case, to decide the point.

10. Of greater significance is the fact that the magistrate was not entitled on the evidence to reach a finding that the window had already been taken dorm when the appellants arrived at the scene. The admitted facts state that the police officers noticed the appellants lifting the window frame out of one of the rooms.

11. Section 65C(1) provides that the admission by any party of any fact under the section shall, as against that party, be conclusive evidence of the fact admitted. Subsection (3) provides that any such admission may with leave be withdrawn. Thus, in the absence of withdrawal, the admission is conclusive evidence of the fact.

12. The question I must now ask myself is whether the appellants may have believed that the window had been abandoned. If so, they were not going equipped for stealing. Having regard to their statements to the police, made at the time of detection, that they believed they had a right to take the window, and in the absence of any evidence pointing the other way, it seems to me quite possible that they genuinely believed the window had been abandoned.

13. In my judgment, had the magistrate directed himself along these lines, he would have come to the same conclusion. I allow the appeal and quash the convictions.

Representation:

Mr. J.G. Hagen, Senior Crown Counsel for the Respondent.

Mr. Gary Alderdice (D.L.A.) assigned for both Appellants