Ho Hing-cho v. The Queen

CACC001018/1976

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Coram: Morley-John, J.

Date of Judgment: 15th October, 1976.

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JUDGMENT

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1. The appellant was found guilty of handling stolen goods, to wit, a suitcase, knowing the same to have been stolen contrary to the provisions of section 24(2) of the Theft Ordinance, Cap. 210 and he was fined $500. The case for the Crown briefly was that the accused who is a revenue inspector of the Commerce and Industry Department and who on the 11th November 1975 was working in the Customs Hall at Kai Tak Airport received a suitcase that had been stolen by a friend of his, a Mr. Chu, who was employed by Jardines Airways as a passenger officer. That the appellant received this suitcase from Chu knowing it to be stolen and took it home for his daughter.

2. The defence to this charge was that the appellant had no idea that the suitcase had been stolen. That he had asked Chu to obtain a suitcase for him at one of the auctions of unclaimed baggage periodically held at the Airport and in which, unlike the appellant, Chu was able to participate. The principal witness for the Crown was this Mr. Chu, who admitted stealing the suitcase and the learned magistrate found that he gave it to the appellant in such circumstances that the appellant would have been well aware that the suitcase had been stolen. In considering the evidence the learned magistrate warned himself that Chu was the thief and that it would not be safe to accept any part of his evidence against the appellant unless such evidence was corroborated. In his statement of findings the learned magistrate said that it appeared to him that certain portions of Chu's evidence were corroborated.

3. The appellant however contended that the learned magistrate did not properly or adequately direct himself as to what other evidence was capable in law of amounting to corroboration and as to what part of Chu's evidence it was desirable that corroboration should be sought and found. From the record I can find no direct evidence that the appellant knew that the suitcase had been stolen. The learned magistrate stated that Chu gave evidence that he gave the suitcase to the appellant in such circumstances that the appellant would have been well aware that it had been stolen. There was no finding of facts from the evidence of any independent witness that the suitcase had been stolen. Also there was no corroboration of Chu's evidence as to the appellant's knowledge that the suitcase had been stolen, a vital ingredient of the charge.

4. There was evidence that Chu, at the request of the appellant, had put a hair-dryer given him by the appellant into the suitcase before the appellant collected the suitcase, and the learned magistrate said that the appellant gave the court the clear impression that when he took possession of the suitcase there was no hair-dryer in it. The appellant denied giving Chu any hair-dryer. The learned magistrate then went on to say:-

"If the defendant was telling the truth in his evidence I would have expected him to tell the Court what he found inside, no matter if it was a hair dryer or not. As he did not do so, I disbelieved his story. I was satisfied that Chu did put something inside and in the circumstances I have no reason to doubt that it was a hair dryer. (If it was something else, it makes no difference). It is very difficult to think of any reason why Chu should have invented the story about the hair dryer, but if the defendant had told the court that he did find a hair dryer inside I would have found that Chu was not corroborated on this point."

The learned magistrate does not specify precisely what point he is referring to it would appear to be the evidence of Chu that the appellant gave him a hair-dryer. Because the learned magistrate found that the appellant was lying then he would appear to be satisfied that this would amount to corroboration of Chu's evidence. This cannot be so. It was suggested by counsel for the appellant that the learned magistrate appears to suggest that if the defendant was telling the truth he would have given evidence as to what was in the suitcase, but because he did not do so then this amounted to corroboration of Chu's evidence. Counsel contended that the failure of the accused to give evidence cannot amount to corroboration.

5. Under the circumstances I allow this appeal and the conviction is quashed. I also order that the fine of $500 imposed by the learned magistrate and paid by the appellant be refunded to the appellant.

Representation:

Mr. A. Sedgwick, instructed by (H.H. Lau & Co.) for the appellant.

Mr. R.W. Stanbury for the Crown/respondent.