The Queen v. Hung Wai-chung

CACC000342/1984

BETWEEN

Coram: Hon. Yang, Silke & Barker, JJ.A.

Date of hearing: 18th October, 1984.

Date of judgment: 18th October, 1984.

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J U D G M E N T

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Yang, J.A.:

1. This case arose out of civil disturbances which took place during the night of the 13th January 1984 in the Yaumatei area. A lot of riotous activities including looting were going on at that time, with thousands of people milling around that area. One of the shops that was broken into was the Citizen Watch Company at Nathan Road. Rioters entered, ransacked the place and stole a number of wrist watches. Three people were arrested in connection with that offence, two of whom were convicted of burglary and this Applicant, on his cautioned statement and on the oral evidence given by other witnesses, was convicted of the alternative offence of handling stolen goods.

2. When the Applicant was interviewed by the police officer with a view to taking a statement from him, it was explained to the Applicant that the police had reason to believe that he was involved in the burglary at the Citizen Watch Company and in answer under caution he said that on the day of the event, one WONG Wai-sang (the 2nd Defendant at the trial), entered the Citizen Watch Company by himself and took away nine ladies Citizen watches. When Wong came out, he gave the watches to the Applicant to keep in his pocket and subsequently he took the watches to his friend's home.

3. Today Counsel for the Applicant asked for fresh evidence to be adduced i.e. evidence from the 2nd Defendant that the Applicant in fact did not know that the watches were stolen property. This evidence was available at the trial but Counsel argued that the Applicant, who was represented at trial, was in no position to know that the 2nd Defendant was willing to give such evidence until after the 2nd Defendant had pleaded guilty. It was only then that the Applicant realized that the 2nd Defendant was in a position to give evidence  on his behalf.

4. We do not think that sufficient reasons have been made out for the calling of fresh evidence at this juncture. The Applicant must have been alive to the possibility of the calling of the 2nd Defendant. No. application was made to call the 2nd Defendant. No adjournment was asked for. More than that, if one looks at the 2nd Defendant's statement, one must have doubts as to his credibility. In the circumstances, we do not think it is an appropriate case for fresh evidence to be adduced.

5. On the general grounds of appeal against conviction the gist of the Applicant's complaint, as I understand it, is that he was so confused that he could not understand why he was not found guilty of the offence charged i.e. burglary, but was convicted of an offence with which he was not charged i.e. handling stolen goods. He also contends that after the 2nd Defendant had pleaded guilty, the Judge ought to have asked the 2nd Defendant if he, the Applicant, had taken part in the handling of stolen goods.

6. We see no such duty on the part of the Judge, and in any event the Applicant was legally represented. The reason for his being convicted of the alternative offence of handling stolen goods is amply explained in the Judge's judgment. We do not feel that there are grounds for us to interfere with the conclusion reached by the trial Judge. We would therefore dismiss the application for leave to appeal against conviction.

7. On the question of sentence, we bear in mind that law and order broke down temporarily during the night of the 13th January. Thousands of people were milling around the streets in the Yaumatei area for hours, and if firm action had not been taken promptly by the police, the situation could have become a very ugly one and could have been prolonged; and therefore looting, or any activity that assists looting, must be regarded as a serious offence.

8. Looking at the circumstances in which the Applicant committed the offence, we would not think that two years is too heavy a sentence for handling stolen goods. We have in mind the sentence imposed upon the 2nd Defendant who, at the end of the prosecution case, pleaded guilty to burglary. Obviously the Judge would have given three years for the burglary if there had not been a plea of guilty. In the circumstance he gave credit for that plea and imposed a sentence of two years.

9. In this case, the Applicant pleaded not guilty to the offence of handling stolen property. It was a minor role that he played. Whilst disparity of sentences is not always a good ground for interferring with sentences and the Court is concerned with a proper sentence for a particular offence, we are nevertheless of the view that the Applicant might well feel a sense of grievance if his sentence is exactly the same as that of the co- accused, whose role was a more serious one. In all the circumstances of the case, we allow the application, treat the application for leave to appeal against sentence as the hearing of the appeal and reduce the sentence of two years to eighteen months.

Representation:

Mr. John Hemmings (Clifford Yeung & Co.) for Applicant.

Mr. Samuel Leung, Crown Counsel for Respondent.