The Queen v. Lam Wai Ip and Another

CACC000393/1990

BETWEEN

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Power, J.A.

Date of Hearing: 1 February 1991

Date of Judgment: 1 February 1991

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JUDGMENT

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Hon. Yang, C.J.:

1. We are concerned with only one charge of burglary, namely Charge 3. On that charge, the Applicants (D1 and D3) in the Court below were convicted by Judge Baily after trial of the alternative offence of handling stolen goods. It is against this conviction that they now seek leave to appeal.

2. The first Applicant (D1) was also charged with two other offences of burglary of which he was acquitted. He pleaded guilty to two charges of criminal damage. The second Applicant (D3) was acquitted of another charge of burglary. The Crown offered no evidence against him on a charge of handling stolen goods. With those charges we are not concerned.

3. It is an agreed fact that a burglary took place on the 8th December 1989 at 63A Electric Road, Ground Floor, entry having been gained through No. 63. These were the premises of Ching Kwok Watch Service. A large number of antique watches were stolen from the shop. Nor is it disputed that on the 27th December 1989, 333 antique watches were found in the home of the two Applicants' co-accused (D2). D1 was on the premises when those watches were discovered. The owner of Ching Kwok Watch Service, Mr. Kwok Wai-man (PW4), identified those watches as those stolen from his shop on the 8th December 1989. A number of Mr. Kwok's customers identifed 18 of those watches as having been left with his shop for repair. It was also an agreed fact that on the 28th March 1990, a Jaeger Le Coutre ladies watch (Ex. P8) was found on D1's person. It was stolen from the same watch shop in the same burglary and belonged to one Ms. Hilda Chan (PW3).

4. The evidence against D3 came from PW1 Tong and PWl alone. His evidence was that in early December 1989 he saw D1, D2 and D3 go out from D2's home and return, each carrying bags that contained several hundred antique wrist watches.

5. It was clear that the judge accepted that those watches described by Tong were the same watches found on D2's premises.

6. Counsel for the Applicants argued that there was no evidence connecting the bags of watches described by PW1 Tong and the 333 watches found on D2's premises on the 27th December 1989. Having regard to the fact that a few hundred watches were stolen, that the defendants were seen carrying bags containing a few hundred watches, and that the stolen watches were found some weeks later in D2's home, the irresistible inference in our view is that those two batches of watches were the same.

7. The Crown in the Court below relied heavily on the evidence of PW1 Tong. In assessing this witness' credibility the trial judge found that he was more involved in the theft of the watches than he cared to admit. However, the judge was nevertheless prepared to accept the witness' evidence that he had seen the three defendants taking out the watches from the home of D2 and returning. He found this evidence corroborated by the finding of the 333 watches in the home of D2. This in our view he was entitled to do, having regard to the circumstantial evidence which I have just described. Though the judge was reluctant to accept PW1 Tong's evidence of the words uttered by the three defendants he nevertheless believed that the two Applicants and their co-accused knew and believed that the watches in question were stolen. Again on the evidence before the judge, this, in our view he was entitled to do.

8. The two Applicants gave no evidence nor did they call any witnesses at the trial. On the evidence before him the trial judge convicted the Applicants of the alternative offence of handling stolen goods, namely, a quantity of watches knowing or believing them to be stolen.

9. Counsel for the Applicants argued that the judge erred in accepting the evidence of PW1. Indeed much of this witness' evidence was rejected by the judge as not being creditworthy. However, we are unable to say that the judge was not entitled to accept that part of the evidence which he did.

10. The second ground of appeal complains that the judge was wrong in saying that the 333 watches corroborated the evidence of PW1 Tong. We have already dealt with that argument.

11. By the third ground, it is contended that there was nothing to show that the two Applicants knew or believed that the watches found in D2's room were stolen. As we have indicated, the only inference that could be drawn from the evidence was that they knew that the watches were stolen property. Then it was said that the shop owner, in his statement to the police, said that only 200 watches had been stolen, only to change his version by saying in evidence that 334 were stolen. The number of watches stolen was part of the agreed facts. There is no substance in this ground of appeal.

12. Then it was argued that D1 was not found to have anything incriminating in his possession at the time of his arrest and that it was only in March that the ladies watch (Ex. P8) was found on him. There is no substance in that ground of appeal.

13. Lastly, it was argued that the shop owner gave a description of the ladies watch which did not match the watch (Ex. P8) when it was produced in evidence. Again in our view there is no substance in this argument.

14. For the reasons given above, the application for leave to appeal against conviction by the two Applicants is dismissed.

Representation:

Mr. Casewell for Crown/Respondent

Mrs. Mahider Panesar (DLA) for Dl & D3