The Queen v. D.2 Chan Wing-kwan and Another

CACC000121/1985

BETWEEN:

Coram:  Roberts, C.J., McMullin, V.P. & Barker, J.A.

Date of judgment: 28th August, 1985.

Date of Handing Down of Judgment: 19th September, 1985.

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JUDGMENT

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Roberts, C.J.

Preliminary

1. KONG Chuen-ching (D.1) and CHAN Wing-kwan (D.2) were jointly charged with burglary of the Europe Fur Company Ltd. in Kowloon on 25th May, 1984.

2. D.1 was acquitted. D.2 was convicted and sentenced to four and a half years' imprisonment. He sought leave to appeal against his conviction only.

3. CHIANG Yen-ching (D.3) was convicted of handling stolen goods at Oi Tak House, Yau Oi Estate, Tuen Mun, on 26th May, 1984. She sought leave to appeal against both conviction and sentence.

Background facts

4. The Europe Fur Company Ltd. is a fur garment factory with premises at Room 2, Stage 2 in the Hang Fung Industrial Building, Hok Yuen Street, Kowloon.

5. On the evening of 25th May, 1984, after all employees had left the factory, the caretaker, WU Mau-sum secured all the doors of the factory, after which the alarm system was switched on.

6. The following morning, when the caretaker returned to the factory, at about 8.20 a.m., he found the front door had been forced open and damaged.

7. When the stock of the factory was examined it was discovered that 66 finished fur coats and 2,400 pieces of mink-skin were missing. The total value of the missing property was HK$1,074,459.

8. Almost five months' later, on 18th October, 1984, acting on information received, D.S.I. CHAN Chun-hing, ("P.W.1") posing as a buyer of furs, was taken by a police informer to meet D.3 at a parked vehicle in Kam Tsuen Street, Kowloon.

9. There a man met them and took them to a nearby car, where P.W.1 was introduced to D.3. P.W.I. asked D.3 to meet him at a nearby industrial building in Castle Peak Road, to which he walked. Soon after, D.3 arrived in a car. P.W.1 was then shown two large cartons containing mink-skins, which had been in the boot of D.3's car.

10. P.W.1 gave a signal to a concealed group of police officer's, who emerged from hiding and arrested D.3, seizing the two cartons of mink-skins. These were later identified by the owner of the factory as having been stolen from it during the course of the burglary on 25th May.

11. Early the following morning (19th October), D.3 led a party of police officers, including P.W.1, to the roof-top of No.2 Sui Lun Street. when D.2 opened the door, D.3 pointed at him and said "He is the one who put the stuff in my home". D.2 made no reply, and was arrested and taken to the police station. Later in the day, D.l was arrested at the same address, where the police found a mink jacket and a piece of mink-skin.

12. D.3 was escorted by the police to her residence at Room 736 Oi Tak House, Yau Oi Estate, Tuen Mun, where a further quantity of mink coats and jackets and skins, identified by the owner of the factory as having been stolen on 25th May, were recovered.

13. Also found in the possession of D.3 was a list which she said she had compiled on the evening when a man called Ah Fat, who was never identified, brought a large quantity of fur coats and skins to her flat late in May.

Grounds of Appeal (D.2)

14. The first ground of appeal advanced on behalf of D.2 was that there had been a material irregularity in the procedure of the trial, since the judge held two separate voir dires in respect of the statements taken from D.2 by D.P.C. 16186 ("P.W.3") on 19th and 22nd October respectively.

15. The record establishes that the following procedure was adopted -

16. It is not the normal practice to hold separate voir dires to determine the voluntary nature of different statements made by a suspect, particularly if these were given to the same police officer; and we do not know why the procedure was adopted here.

17. However, we cannot see that any injustice was caused to D.2 by its adoption.

18. It is clear that the judge, as he was entitled to do, accepted the police evidence in relation to the first statement and disbelieved D.2.

19. Had a voir dire on the two statements been held together, instead of separately, the judge would surely have come to the same conclusion.

20. Furthermore, D.2 was afforded the opportunity of giving further evidence on the voir dire in relation to the second statement. This he declined to do. We therefore see no merit in this ground.

21. Nor do we see any substance in the objection that evidence given on one voir dire could not be taken into account by the judge when reaching his conclusion on the second voir dire. Not to have done so would have been to prolong the trial unnecessarily.

22. The second ground advanced on behalf of D.2 was that the trial judge failed to consider, when deciding what weight should be placed on the confessional statements of D.2, the conduct of P.W.3 who recorded them.

23. In his reasons for verdict, the judge referred, in somewhat critical terms, to P.W.3, saying "I cannot say that D.3 is a great detective and I don't know if he is a good one" and commenting "P.W.3 is shown to have a very poor memory". The judge was thus addressing himself carefully as to the weight to be given to P.W.3's evidence, having decided, during the trial that the statements taken by him were voluntary and admissible.

24. In giving the reasons for his conviction of D.2, the judge specifically found that both statements were true. Inherent in that finding must be a conclusion that, notwithstanding his criticism of P.W.3, he could give full weight to the statements taken by him.

25. The final ground advanced on behalf of D.2 was that the trial judge had wrongly admitted evidence of P.W.1 that, when D.3 led the police to No. 2 Sui Lun Street, D.3 pointed at D.2 and said "He is the one who put the stuff in my home". Evidence to the same effect was given by W.D.P.C. 15274 (P.W.2).

26. It is well established that if a statement is made, in the presence of a suspect, accusing him of a crime even in circumstances which might reasonably be expected to call for some explanation or denial by him, his silence cannot be regarded as evidence against him, nor can his answer, save insofar as he accepts the statement so as to make it in effect his own.

27. In this instance, the silence of the defendant cannot be regarded as any evidence against him, even though that silence occurred in circumstances in which a denial might reasonably have been expected, since to regard his silence as evidence of guilt would be to infringe the basic right of silence of an accused.

28. In this instance, however, there is nothing to indicate that the judge gave any weight whatever to this piece of evidence, in reaching his verdict of guilt. In his reasons for verdict, he commented that the identification of D.2 by D.3 had led him to conclude that D.2 made the confession which he did to the police because he knew that he had been recognized and identified to the police by a participant in the crime.

29. There is nothing in the record to suggest that this comment had influenced the judge in his admission of the statement, which had occurred at a much earlier stage. Nor did he purport to rely on this evidence as evidence of guilt, and we see no merit in this submission.

Grounds of Appeal (D.3)

Particulars

30. The first ground of appeal argued on behalf of D.3 was that the court was wrong to refuse to direct the prosecution to supply particulars of the alleged mode of handling at the outset of the trial, when the defence asked for them.

31. It is apparent from the authorities cited to us, among them R. v. Pitchley ⁽¹⁾ and R. v. Nicklin ⁽²⁾; that the better practice is to supply particulars to the defence if these are requested, though the Crown is not is law obliged to do so.

32. Section 24 of the Theft Ordinance provides for one offence, that of handling stolen goods, but a number of ways of committing it. The Crown could therefore have established that offence by showing either that D.3, knowing or believing the goods to be stolen, dishonestly received them, or had dishonestly assisted in their retention, removal or disposal or realization for the benefit of another or had arranged to do so.

33. It was suggested on behalf of D.3 that the refusal of the Crown to supply further particulars had prejudiced the defendant. We see no substance in this argument, since the particulars of the offence, as they were laid, made it clear that the dishonest handling alleged took place on the day following that on which the burglary occurred - i.e. that the Crown was basing its case on receiving of stolen goods, hoping to establish recent possession by D.3, and not on later disposal.

34. It is possible, had the Crown case been put that way, that the evidence might also have justified a conviction of D.3 on the grounds that she had dishonestly assisted in the disposal of some of the stolen goods. Indeed, at one stage in his argument, counsel for D.3 seemed to be complaining that his client should have faced two counts under section 24 of the Theft Ordinance, one of receiving and one of assisting in the disposal of the goods for the benefit of another.

35. Where the Crown is uncertain of the exact part played by a defendant in the receiving and disposal of goods, it would be wiser to include in the indictment two separate counts under section 24.

36. However that may be, we are satisfied that the particulars in the indictment, and the way in which the evidence was adduced, should have made it clear to D.3 that what was alleged was a dishonest receiving of the goods shortly after they were stolen from the fur factory.

Burden of roof

37. It was submitted that the judge had misdirected himself with regard to the burden of proof or the charge of handling of stolen goods, since the manger in which the judge expressed his reasons for verdict showed that he convicted D.3 because he did not believe her explanations.

38. It is, of course, for the Crown, to establish that the defendant, at the time when he received the goods, or undertook or assisted in their removal etc., knew or believed them to be stolen; and this burden never shifts.

39. If the only evidence against a defendant is that he was in possession of recently stolen property, it is open to the judge to infer guilty knowledge if the defendant has offered no explanation to account for his possession of them or if the judge finds that an explanation given by the defendant and consistent with innocence is untrue.

40. We find nothing in the judge's reasons for verdict to suggest that he convicted D.3 because she told lies. We think that he directed himself correctly in compliance with the principles set out above.

Subsequent conduct

41. A further ground of appeal was that it was improper for a judge, when attempting to assess knowledge or belief of D.3 at the time when the goods came into her possession, to take into account her subsequent conduct, in particular her dealings with Ah Fat, the price she offered him for the skins and the list she made of the stolen items.

42. Unless there are admissions by a defendant, the state of his mind at a given time must be determined circumstantially. In attempting to assess that belief, the judge is fully entitled to take into account subsequent events, insofar as these illustrate what must have been in the mind of the defendant at the relevant earlier time.

43. The applications for leave to appeal against conviction of both defendants were therefore dismissed.

Appeal against sentence

44. D.3 sought leave to appeal also against the sentence of four and a half years' imposed upon her. D.3 is aged 36. She was born in November 1948 in Indonesia and arrived in Hong Kong in 1973 from mainland China.

45. She is married, lives with her husband and has a 9 year old son. She supplements the family income by doing tailoring work at home. She has no previous convictions.

46. An examination of a number of other cases of handling of stolen goods shows that the normal bracket of sentences runs between 2 and 4 years. Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled.

47. Against this background, we came to the conclusion that the sentence of four and a half years' was manifestly excessive. We granted the application for leave to appeal against sentence and reduced the sentence of D.3 to two years' imprisonment.

(1)    [1973] 57 Cr. App. R. 30

(2)    [1977] 64 Cr.App.R. 205.

Representation:

Mr. B. van Buuren (David K.W. Tsang & Co.) for Appellants

Mr. P.S. Chapman, Crown Counsel, for Respondent/D.P.P.