Kwong Chi-ming v. The Queen

CACC000336/1982

Handling stolen property - dishonesty - inference not necessarily to be drawn in case of young boy in possession of cheque.

BETWEEN

Coram: Bewley, J. in Court

Date: 7 May 1982

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JUDGMENT

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1. The appellant is a boy of 14. He was found guilty, after trial, of handling stolen property and was ordered to be detained in Castle Peak Boys Home. He appealed against both verdict and sentence.  I allowed his appeal and quashed the finding of guilt for the following reasons.

2. The appellant was jointly charged with 2 other boys who pleaded guilty to theft, inter alia, of $230 cash and a cheque for $2,649. The appellant was charged with handling $70 and this cheque.

3. The 2 co-defendants gave evidence for the Crown. They admitted stealing the money and the cheque, which they had intended to cash, but the bank was closed. One of them said he had lent the appellant $70 and had asked him to cash the cheque. He told him he had picked it up, but not that he had stolen either the money or the cheque.

4. Following the arrest of his co-defendants next day, the appellant was questioned by the police and admitted receiving the cheque. The police took him home and, in the kitchen, he retrieved the cheque from a bucket.

5. The appellant told the court that he asked his friend for a $70 loan to buy a pair of shoes and promised to repay him in a few days. His friend also gave him the cheque, but said he wanted it back in 2 hours. The appellant was subsequently unable to find his friend. The cheque was folded up when he received it and he did not ask what it was. His friend told him he had picked it up, which he believed 'a little bit'. He had put it in the bucket because his hands were dirty. This evidence was clearly contradictory and unsatisfactory.

6. The learned magistrate properly directed herself on the dangers of relying on the uncorroborated evidence of accomplices, but accepted their evidence as to the theft, the loan and the handing over of the cheque. She disbelieved the appellant's evidence that he had not enquired about the piece of paper he had received and found that he knew it was a cheque and that it had been stolen.

7. The appellant was unrepresented at the appeal. The first point that arose was the wording of the particulars of offence, which omitted the word 'dishonestly'. At the end of her statement of findings, the learned magistrate says she realized this when re-reading the charge, but had dealt with the case throughout on the basis that dishonesty was an essential ingredient.

8. It is not clear from this, whether the re-reading was before or after verdict, If before, it is surprising that no amendment was made. If it was at a later stage, the question arises whether, in fact, she had the issue of dishonesty in mind. I am, however, prepared to accept that a professional magistrate would be aware of such an essential ingredient, where she specifically states that this was the position.

9. It would seem, in these circumstances, that such an omission is not fatal to a conviction. In McVitie v. R.⁽¹⁾, the appellant was charged with possessing explosives, but the particulars omitted the word 'knowingly'. The appellant admitted that he knew the substence was in his possession and was explosive. It was held that the indictment was not rendered bad in law by the omission, in the sense of disclosing no offence known to the law, but merely defective in that it described a known offence with incomplete particulars. The appellant not having been embarrassed or prejudiced by the technical irregularity, the court applied the proviso.

10. I concluded, nonetheless, that the appeal must be allowed, on the ground that the learned magistrate was not justified in drawing the inference that the appellant had handled the cheque dishonestly.

11. Knowledge that the cheque had been stolen does not necessarily import dishonesty. R. v. Dickson and Gray⁽²⁾. If it did, the word would be otiose.

12. The facts of this case, involving a child of 14, raise grave doubts that the appellant intended to deal with the cheque dishonestly. It is not sufficient that he told lies about the circumstances in which he received it. They could have been prompted by his knowledge that it was stolen.

13. Miss Plumptre submitted that his father was a police officer and that, were the handling honest, he would have given it to his father, instead of placing it in a bucket. The only evidence of his father's occupation is that the appellant lives in police married quarters, but, even if this is the case, it does not follow that failure to do so necessarily indicates dishonesty. He might have been frightened to tell his father he was in possession of stolen property, or that his friends were thieves.

14. The dishonesty must be in relation to the owner of the property. It, therefore, involves the encashment of the cheque. To cash a cheque for $2,649 - there is, incidentally, no evidence whether it was crossed or not, since it has been returned to the owner - is no easy task for a 14 old boy. It was incumbent on the prosecution to prove an intention to do so. The finding of the cheque in the bucket does not, in my judgment, do any such thing. It is just as consistent with an inference that the appellant intended to keep it, or give it to a member of his family, or even to abandon it. If there is more than one possible inference, the court must not draw the one in favour of the Crown.

15. I emphasize, however, that I have come to this conclusion on the special facts of this case. In other circumstances, possession of a stolen cheque might well indicate a dishonest intent.

(1)    (1960) 44 C.A.R. 201

(2)    (1955) C.L.R. 435

Representation:

Appellant in person

Miss Plumptre, c.c., for respondent