Chan Man Shing v. The Queen

Case No.CACC 410/1968

Court

Court of Appeal

Date04 Sep 1968

Judge—

Case Document

100%Judiciary

CACC000410/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 410 OF 1968

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BETWEEN
	CHAN MAN SHING	Appellant
	AND
	THE QUEEN	Respondent

Coram: Hogan, C.J.

Date of Judgment: 4 September 1968

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JUDGMENT

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1. This is an appeal against conviction of the appellant by a magistrate for a charge of robbery with aggravation contrary to section 40 (1)(a) of the Larceny Ordinance, Cap. 210. The particulars of the offence were that the appellant, together with another, who is not now before the court, did on the 15th May 1968 outside Block 11 Li Cheng Uk Resettlement Estate, Kowloon, in this Colony, rob LI Kwok Wai of a wrist watch.

2. According to the evidence for the prosecution, the owner of the watch, LI Kwok Wai, was approached at about six o'clock on the evening of the 5th May last by the appellant and another companion. According to the testimony of the complainant the appellant shouted at the complainant, "You four-eyed fellow, stand there!". The complainant ignored him but the appellant again shouted and, because he was frightened, the complainant obeyed and stood still, together with a friend who was accompanying him at the time. The appellant then approached and asked the complainant if he had $5. The complainant said he hadn't. The appellant, according to the complainant, said "If I do succeed in finding the money on you, it would be embarrassing indeed"; he then said, "Take your watch for pawning for the time being". The complainant refused to hand over the watch but the appellant said if he did not hand it over he would be beaten up. As a result, the complainant took off his wrist watch; the appellant and the companion of the complainant went to a pawnshop and pawned the watch for $10, leaving the complainant and the appellant's companion at the place of the original demand. It appears that some indication of what was going on was conveyed to a detective, who, as a result, approached the two who had remained and enquired what was happening. He then contacted two uniformed constables, who were patrolling in the vicinity, and who went to look for the two who had gone off to pawn the watch. They met the two and, as a result, the appellant was arrested and the $10 which he obtained from pawning the watch was found on him. He had, however, handed over the pawn ticket to the complainant's companion.

3. Substantially the magistrate has found the facts in the case in accordance with the evidence given for the prosecution and did not believe the somewhat different version of the facts given by the appellant. He has, however, in his full and careful statement of the facts and reasons for the conviction expressed some doubt as to whether in the circumstances the offence of robbery had been established. When I say he expressed doubt perhaps it would be more correct to say he had questioned in his own mind whether the offence of robbery had occurred, but, having looked at certain authorities, finally came to the conclusion that it did.

4. In this court I have had the benefit of legal argument from counsel for the Crown on this question as to whether the offence of robbery had been established. There has not, unfortunately, been argument on the other side, but I believe I have been referred to all the relevant authorities.

5. Counsel first drew attention to the case of R. v. Medland⁽¹⁾, where the headnote reads:-

"On a charge of larceny, it was proved that the prisoner had taken property from ready-furnished lodgings that were let to her, and had pawned it: Held, that the fact that she had frequently pawned and afterwards redeemed portions of the same property, was no answer to the charge. There must not only be the intent, but also the ability to redeem, to render such defence available.".

6. Counsel then mentioned the case of Reg. v. Tynn⁽²⁾ where the headnote reads:-

"	Prisoner, a travelling watchmaker, on two separate occasions received from different persons watches which he was to repair. One of the watches was pledged by the prisoner in November 1886, and the other before Christmas in that year. Upon pledging the first watch the prisoner stated that he only wanted the money for which he pledged it temporarily. And upon pledging the second watch, he requested the person with whom he pledged it not to part with it, as it was not his property. Upon an indictment under 24 and 25 Vict. c. 26, s.3 for the fraudulent conversion of the watches by the prisoner while a bailee thereof:
	Held, that there was some evidence of a fraudulent conversion, i.e. an intention on the part of the prisoner to deprive the prosecutors permanently of their property, there being no evidence that any effort had been made by the prisoner to redeem the watches; and he never having shown any intention beyond the statements referred to, of so doing.".

7. Counsel laid particular stress on the judgment of Denman, J. in that case which had been reserved by the trial judge for the opinion of other judges on the Bench. Denman, J. said:-

"The only circumstance that in my mind could have raised any doubt in the mind of the jury was that, at the time the prisoner pledged the first watch, he told the person with whom he pledged it that he only wanted the money temporarily; and that, when he pledged the other watch, he asked the person with whom he pledged it not to part with it, as it was not his property. As against the latter statement, however, which is the stronger statement in favour of the prisoner, is the fact that he never did go near the place again, and that the watch was ultimately disposed of by the person with whom it was pledged. Taking it altogether, therefore, I think that there was evidence of a fraudulent conversion of the watches by the prisoner, and, that being so, I am of opinion that the conviction must be sustained.".

8. My attention was drawn next to an Australian case of R. v. Johnson,⁽³⁾ of which we do not have a full report but which is mentioned in the Australian Digest (p.562) where Stephen C.J. is reported as follows:-

"He who unlawfully takes a chattel for the temporary use of it merely, and who does not assume any ownership therein, is not guilty of larceny. But if he pawns the chattel, for example, he assumes the ownership, and thereby manifests an intention to vest the property in himself, for he assumes to transfer the ownership, though qualifiedly, to another. An intention eventually to return an equivalent amount cannot purge the offence.".

9. That is a very clear and categorical statement but it looks from the report as if it must have been obiter dictum in that particular case. It goes further than the English case of Reg. v. Phetheon⁽⁴⁾ where the headnote reads:-

"(The defence to a charge of stealing, that the prisoner pledged the property, intending to redeem and restore it, is a defence not to be generally encouraged; though, if clearly made out in proof, it may be allowed to prevail. The rule for the jury's guidance in such a case seems to be that, if it clearly appear that the prisoner only intended to raise money upon the property for a temporary purpose, and at the time of pledging the article had a reasonable and fair expectation of being enabled shortly by the receipt of money, to take it out and restore it, he ought to be acquitted; but otherwise, not.)".

10. The judgment in the case of Trebilcock⁽⁵⁾ to which the learned magistrate referred in the court below seems to contain passages closer to the view of Stephen, C.J. The headnote reads:-

"	(The prisoner was indicted for larceny under s.4 of the Fraudulent Trustees Act, 20 & 21 Vict. c.54, and, in a 2nd count, for larceny at common law. It appeared that the prosecutrix having deposited a box of plate with the prisoner for safe custody, he broke open the box and took the plate out and pawned it. The jury returned a verdict of guilty, but recommended the prisoner to mercy, on the ground that they believed that he intended ultimately to return the plate to the prosecutrix:
	Held, that, although, as decided in Regina v. Holloway⁽⁶⁾ to constitute larceny there must be an intention permanently to deprive the owner of the property, the recommendation by the jury did not so qualify the verdict as to bring the case within the principle of that decision ....)".

11. Counsel laid particular stress on the judgment of Martin, B. where he said:-

.............. The recommendation to mercy, and the words which accompanied it, were no part of the verdict, and had nothing to do with it; and when the jury said 'guilty' there was an end of the matter, so far as the verdict was concerned. But I also think that, even if it did form part of the verdict, it would not have the effect of bringing it within the principle contended for. It seems to me quite clear that this prisoner stole the plate and then pledged it for £200; and I think that in so doing he 'usurped the entire dominion over it' within the meaning of that expression as used by Parke B. in Regina v. Holloway⁽⁶⁾. If therefore, a special verdict had been found, in the very terms used by the jury when they recommended the prisoner to mercy, I should have said that he was still guilty of larceny.".

12. As an indication of the weight attached to this case in current textbooks, counsel drew attention to the 19th Edition of Kenny's Outlines of Criminal Law⁽⁷⁾ where reference is made, in the notes, to Trebilcock⁽⁵⁾ and Medland⁽¹⁾. In the text the author says:-

"The pawning of the article bailed, although it may create prima facie a presumption of conversion, will not be conclusive: for the bailee may be able to raise sufficient doubt as to his guilt by evidence that he honestly intended to redeem it, and that there was a reasonable prospect of his being able to do so; or that he had pawned it in order to secure its safe custody.".

13. Although they do not deal with instances of pawning there are two other cases that merit attention in this connection. The first is R. v. Williams⁽⁸⁾. A sub-postmistress and her husband had taken money from the post-office of which she was in charge for use in the business which they ran in the same premises. They maintained that they intended to return the money. In the judgment, the Court of Criminal Appeal said:-

"We have also to consider the question whether or not the fact that the jury have found that in respect of two counts the appellants intended to repay and had reasonable ground for believing that they could repay affords a defence, and in regard to the other counts whether the fact that they intended to repay but had no reasonable ground for their belief amounts to a defence.".

The answer was expressed in the headnote as follows:-

"If a person takes someone else's money for his own purposes, and has merely a hope or expectation that he will be able to repay it in the future, that does not amount to a defence to a charge of larceny and can, at the most, go to mitigation.".

14. It is apparent from the judgment that the court attached a measure of importance to the fact that there was no question of returning the actual coins and notes which had been taken, but the main feature of the reasoning was that the appellants acted fraudulently in taking money of the Postmaster General and using it for

"purposes different from those for which they were holding the money and for which the persons who paid the money intended it to be used ...... They knew they had no right to take the money which they knew was not their money. The fact that they may have had a hope or expectation in the future of repaying that money is a matter which, at most, can go to mitigation, and does not amount to a defence.".

15. Although this case does not deal with a pawning, the general trend of the language used and the reasons expressed by the Court of Criminal Appeal seem to come closer to the view of Stephen C.J. than to that of the author of Kenny's Outlines of Criminal Law.

16. Prominent in the judgment is the fact that the property was being used in a way that the person who had taken it was not entitled to use it. Although it may seem, and indeed is, a somewhat technical distinction, the problem for the Court was, however, simplified by the absence of an intention to return the identical notes and coins taken, and the importance of this distinction is illustrated by the history of the following passage which appeared in 1953, 2 W.L.R. (p.942) :-

"	It is one thing if a person with good credit and with plenty of money uses somebody else's money which may be in his possession and which may have been entrusted to him or which he may have had the opportunity of taking, merely intending to use those coins instead of some of his own which he has only to go to his room or to his bank to obtain. No jury would then say that there was any intent to defraud or any fraudulent taking.
	It is quite another matter if the person who takes the money is not in a position to replace it at the time but only has a hope or expectation that he will be able to do so in the future .....".

17. Much reliance was placed on this passage by counsel in the later case of R. v. Cockburn⁽⁹⁾. In the Court of Criminal Appeal, Winn, L.J. in delivering judgment pointed out that this passage did not appear in other reports of the case, and said:-

"	There is in the Weekly Law Reports a passage which this court sincerely hopes will for the future be disregarded entirely by the bar and all others who have occasion from time to time to refer to Reg. v. Williams⁽⁸⁾. There is no corresponding passage in the Law Reports, or in the Criminal Appeal Reports, and I venture to think that ...... Lord Goddard C.J. himself must have checked the Law Reports and the Criminal Appeal Reports, and taken good care to see that the passage ...... did not appear in those official reports. ......
	I venture to think that quite probably Lord Goddard C.J. felt about that passage what I myself not only feel but now say, that it is an extremely dangerous and most misleading statement; and it does not appear in the other reports that I have mentioned.".

At a later stage Winn, L.J. said:-

"If coins ...... are taken in all the circumstances which I have already indicated with the intention of spending or putting away somewhere those particular coins or notes, albeit not only hoping but intending and expecting reasonably to be able to replace them with their equivalent, nevertheless larceny has been committed because with full appreciation of what is being done, the larcenous person, the person who commits the offence, has taken something which he was not entitled to take, had no claim of right to take, without the consent of the owner, and is in effect trying to force upon the owner a substitution to which the owner has not consented."

18. It might well be argued by analogy that the person who takes the property of another, without a claim of right or the owner's consent, and pawns it is thereby forcing on the owner a substitution into a pawn-ticket and possibility of redemption, to which the owner had not consented, and that this is in itself a larceny.

19. Counsel for the Crown has expressed some anxiety as to whether the pronouncements in some of the authorities already mentioned might not lead to the impression that the onus of proof was being shifted from the prosecution to the accused in a manner contrary to the principles laid down in Woolmington v. Director of Public Prosecutions⁽¹⁰⁾, but, however that might be, he claimed that in the present case the evidence clearly proved the appellant had no intention or expectation of redeeming and returning the watch. In this connection he drew attention to the complainant's evidence that the appellant had no money and to the fact that the pawn-ticket was made out by the pawn-broker - and one might readily infer at the request of the appellant - not in the name of the appellant or the complainant but in a fictitious name, indicating the absence of any genuine intention to redeem.

20. As I read the authorities, it would not, I think, be accurate to describe them as shifting on to the accused an onus that normally rests on the prosecution. They show, it seems to me, that if an accused takes somebody else's property, without the latter's consent or with consent vitiated by force, and pawns it, a jury or judge of fact can properly infer the intent necessary to establish the offence of larceny. It is not, I think, necessary in the present case for me to decide whether that intention can be displaced or put in doubt merely by showing that there was a hope and reasonable expectation of redeeming and returning the property, or whether the latter should now be regarded as going merely to mitigation as one might infer from the observation of Stephen C.J. and the reasons advanced in R. v. Cockburn⁽⁹⁾, because in the present case I see no reason to dissent from the very explicit finding of the magistrate in his statement that.

"The appellant had no intention, hope or desire of redeeming the watch and restoring it to the victim.".

21. Clearly, whatever the position might be, if these circumstance were established, it is no defence to say, having obtained the watch by threats, having pawned it and kept the proceeds, 'here is the pawn-ticket, and if the owner pays the amount for which it was pawned, he can get back his watch, and therefore, I have not permanently deprived him of it'.

22. In the circumstances, I see no reason to allow the appeal which is accordingly dismissed.

Representation:

Appellant in person.

Sandor C.C. for Respondent.

(1) 5 Cox's Criminal Law Cases, p.292

(2) 56 The Law Times Reports, p.749

(3) 2nd Ed. Vol.7 Australian Digest p.562.

(4) 173 English Reports p.952.

(5) 169 English Reports, p.1079

(6) 1 Den. C.C. 370

(7) 19th Ed. pp.282, 308.

(8) 37 C.A.R. 71, 77.

(8) (1953) 2 W.L.R. 937

(9) (1968) 1 W.L.R. 281, 283

(9) (1968) 1 W.L.R. 281

(10) (1935) A.C. 462.