The Queen v. Poon Wah Sang and Others

HCMA000815/1985

HEADNOTE

Handling stolen goods - evidence of previous convictions for theft not admissible under section 29(3)(b) of Theft Ordinance if there is an alternative charge of theft - evidence admitted under section 29(3)(b) does not raise a presumption.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.815 OF 1985

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BETWEEN

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Coram: O'Connor, J.

Date of Hearing: 30 October 1985

Date of Judgment: 30 Octobers 1985

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JUDGMENT

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1. The first and second appellants' appeals against their convictions and sentences on a charge of theft have been dismissed by me. I gave oral reasons and it is unnecessary to set them out again.

2. The third appellant appeals against conviction on a charge of handling stolen property. I allowed the appeal and set aside the conviction and sentence. I gave oral reasons, which I now reduce to writing.

3. The third appellant was charges, on alternative charges, with theft and handling stolen property. During the course of the trial the prosecuting counsel applied for leave to lead evidence, under section 29(3)(b) of the Theft Ordinance, of two previous convictions of the appellant. That subsection provides:

4. It is in respect of the words within the first set of brackets that the magistrate went wrong. The third appellant was being tried in respect of an offence other than handling stolen goods, theft, and therefore the section did not apply. The charges were alternatives, but nevertheless he was being tried in respect of both, although a conviction would only properly occur in respect of one, R. v. Davies [1953] 1 Q B 459 at Page 493.

5. There is another matter. Just prior to giving his verdict, the learned magistrate gave reasons. He referred to the evidence that had been produced under section 29(3)(b) and went on to say that 'no evidence is given by either the prosecution or defendants to rebut the presumption under section 29(3).'   The magistrate the time of giving his verdict appears to have thought that section 29(3) gave rise to a presumption. However the section does not give any particular weight to evidence admitted by virtue of the section. It does not make it conclusive, or even presumptive evidence of guilty knowledge. The section's predecessor did not raise a presumption, R. v. Davis [1870] 11 Cox 578, nor does section 27. It merely provides that it is evidence which, if admitted, is 'for the purpose of proving that he knew or believed the goods to be stolen. So, if admitted, such evidence merely goes towards proof of guilty knowledge. It is not necessarily sufficient proof in itself of guilty knowledge.  Whether it is sufficient, in a particular case, depends on the circumstances of that case.

6. In his 'findings' the learned magistrate states expressly that his remarks at time of verdict are incorporated into his 'findings'. In his 'findings' the magistrate states that section 29(3) is not a deeming provision nor is it a presumptive provision. Somewhat further on in his 'findings' he states that there is no credible evidence to the contrary of that admitted under section 29(3). That latter passage, again, causes one to suspect that the magistrate considered a presumption had arisen. It may be that on those matters the learned magistrate has simply failed to proporly express himself. Crown Counsel, on both grounds, conceded that the verdict could not stand.

7. I allowed the appeal and quashed the conviction. Apart from the matters I have mentioned, the magistrate dealt admirably with the case, and gave clear and cogent reasons for arriving at his verdicts.

Representation:

Simon Westbrook instructed by R. J. Oliver, for the 1st appellant

Simon Westbrook instructed by So and Karbhari, for the 2nd appellant

Nicholas Ma s assigned by the Director of Legal Aid, for the 3rd appellant

Simon Westbrook instructed by Melville Boase & Co., for the 4th appellant

C.G. Jackson Acting Assistant Crown Prosecutor, for the respondent