Leung Tim and Others v. The Queen
Read the full judgment text of CACC 44/1980 on BabelCite. This Court of Appeal judgment.
1. In this matter the first appellant appeals against his conviction on a charge of robbery of certain sewing machines; the second appellant against his sentence on a charge of handling dishonestly those machines he having pleaded guilty to that offence while the third appellant appeals against his conviction on a similar charge.
Cited by 1 case
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CACC000044/1980
----------------- Coram: Leonard, J.A., Addison & Garcia, JJ. Date of Judgment: 16th July, 1980. ----------------- JUDGMENT ----------------- Leonard, J.A.: 1. In this matter the first appellant appeals against his conviction on a charge of robbery of certain sewing machines; the second appellant against his sentence on a charge of handling dishonestly those machines he having pleaded guilty to that offence while the third appellant appeals against his conviction on a similar charge. 2. There is nothing in the appeal of the first appellant. He has not put forward any specific grounds of appeal against his conviction which was based on a confession, admitted after a voir dire. He did not give evidence on the general issue and we have no doubt but that he was properly convicted. 3. The second appellant withdrew his appeal against sentence. 4. It remains only to consider the appeal of the third appellant who was found guilty of dishonestly undertaking or assisting in the retention, removal, disposal and realization of the stolen machines. 5. The robbery of these machines occurred on the 19th August 1978. The handling of which the third appellant was found guilty was alleged to have occurred on or between the 19th of August 1978 and the 22nd of August 1978. 6. The fourth accused in the court below was similarly charged with handling and he was alleged to have handled the machines in question on or between the 20th of August 1978 and the 22nd of August 1978 while the fifth defendant in the court below was alleged to have handled the goods between the 20th of August 1978 and the 17th of March 1979. The fourth and fifth accused were found not guilty. 7. Other relevant dates were the 5th of November 1978 when it was suggested but not proved that some 26 bags of calico subsequently connected with the third appellant were removed from the premises of Wing Yee Co. and the 14th of December 1978 when various lost of cloth including a considerable quantity of calico were robbed from a firm called Ying Fung Company. 8. As far as the incident of the 5th November 1978 is concerned, it was not proved that the calico involved there was stolen. What was proved was that the third appellant was instrumental in the storing of that material for a man who was called "Uncle Kwok". As far as the robbery of the 14th December 1978 is concerned, it was suggested that of various lots of cloth stolen the appellant was concerned with storage of one lot for the same "Uncle Kwok". 9. Chronologically then the relevant dates were (1) 19th August 1978 - the robbery of the machines in question; (2) 19th to 22nd August 1978 - their handling by the third appellant; (3) November 1978 storage by the third appellant for "Uncle Kwok" of a quantity of calico; (iv) 14th December 1978 robbery of calico and other cloth from Ying Fung Company. 10. With those dates in mind one can approach the first three grounds of appeal. They are admirably succinct and they raise more questions than would appear from a casual reading of them. They read:
There was no doubt whatsoever but that the machines were the subject of a robbery which took place on the 19th of August 1978. 11. The machines were dishonestly received from the robbers by the second appellant and they were ultimately found in the hands of the fourth and fifth defendants or their assigns. Prior to the assignments made by the fourth and fifth defendants serial numbers on some of the machines had been altered. Tools suitable for alteration of serial numbers (but not suitable for the alteration of serial numbers on the machines in this case) were found in the possession of the fourth and fifth defendants. Some of the stolen machines were exported by the fourth and fifth defendants. Those exported machines bore their original serial numbers unaltered. Only the machines remaining in Hong Kong and sold by the fourth and fifth appellants to Hong Kong dealers had altered serial numbers but since the fourth and fifth defendants were ultimately acquitted I need say no more about them. 12. Clearly the third appellant had acted as a middle man between the second appellant and the fourth and fifth defendants and as such had assisted in the disposal and realization of the machines. The essential question for the jury as far as the third appellant was concerned therefore was whether he had been proved to have acted dishonestly. 13. The first three grounds of appeal raise a number of questions of law. Firstly, does section 29(3) permit the admission of evidence of possession of property which, if stolen, was necessarily stolen after the date on which the third appellant was found to have assisted in the disposal of these machines? Mr. Hidden contends that it does not. He suggests that in determining whether a man who has received or otherwise dealt with stolen goods has acted dishonestly the material date is the date of receiving or dealing. Evidence indicative of his state of mind at some later time, in relation to other goods, cannot tend to show his mens rea on the material date. 14. In an interesting argument Mr. Hidden suggested that the Legislature cannot have intended to permit by the wording of section 29(3) the admission of evidence of possession or dealing with property unless that property was proved to have been stolen before the date of the handling the subject of the charge. In The King v. Dunn & Smith(1) the headnote reads in part
15. On the wording of the report the judges whose opinion was sought, the trial judge having respited the judgment, do not appear to have distinguished receivings prior to from receivings after the act of receiving charged holding that "evidence of other receivings was properly admitted against Smith." The contrary view was taken in Oddy(2) Lord Campbell, C.J. commenting
and Alderson B that
on the basis that
16. In Reg. v. Nichols & Clark(3) evidence of former receipts was admitted, both Oddy & Dunn being cited. There however there was evidence of system. 17. Section 19 of the Prevention of Crimes Act 1871 first put the matter on a statutory footing. That section provided that on a receiving charge evidence might be given
As is clear from R. v. Girod and Girod(4) the "other property" must be proved (as distinct from suspected) to have been stolen (and, as appears from an interjection by Kennedy, J. at page 516, stolen before the property the subject matter of the indictment). It was there held that, the property not having been proved to have been stolen,
Section 43(1) of the Larceny Act 1916 provided that for the purpose of proving guilty knowledge on the part of a receiver
The admissibility of such evidence was restricted to cases in which receiving only, and not larceny, was charged. [Reg. v. Davies(5) where Lord Goddard, C.J. said
18. In section 27 of the Theft Act, the wording of which is followed in section 29 of our Ordinance, the Legislature saw fit to drop the use of the word "preceding" so that the relevant words in para. (a) of subsection (3) now read
The subsection is not only wider because the word "preceding" has been dropped and the phrase "not earlier than" substituted for it but also because the requirement of possession has been enlarged to include
This enlargement is not in slavish repetition of the definition of handling in section 24 for the word "dishonestly" is omitted before the word "undertaken" as are the words "by or for the benefit of another person". The new subsection therefore must have been intended to widen the manner in which the Crown might prove the dishonest intent necessary in handling. Again it is to be noted that the Legislature recognised this for the subsection expressly enacts that the evidence may be given "where a person is being proceeded against for handling stolen goods (but not for any offence other than handling stolen goods)." The words in brackets would have been unnecessary if a widening of the type of evidence to be rendered admissible was not intended for Davies case governed the situation appertaining under the former section 43 of the Larceny Act 1916. Their insertion indicates that the Legislature was prepared to widen the type of evidence that might be given where an accused person was charged with handling only and not where he was charged with theft also. The expression to be construed is
and clearly a theft taking place after the offence charged is an offence taking place not earlier than 12 months before the offence charged. We therefore consider that the Legislature did intend to render admissible evidence of handling property stolen after the offence charged and in this conclusion we find support in the case of Davis(6) the official shorthand note of which we have seen and which is referred to at 1972 C.L.R. 431 although in that case also there was some evidence of system. 19. Secondly, is there discretion based on some concept of fairness to exclude such evidence even though the Ordinance renders it admissible. In R. v. List(7) dealing with section 43 of the Larceny Act, Roscoe, J. held that there was such a discretion
This view also prevailed in Herron(8) a case in which under the same section evidence of a previous conviction was sought to be tendered. There, however, the jury might have allowed the evidence to influence them not upon the issue of guilty knowledge (for which issue alone the section rendered the evidence admissible) but on the issue of identity of stolen money. The Court of Appeal adopted and followed Roskill, J. in R. v. List and enunciated the principle that the trial judge
Therefore there is some discretion to exclude evidence admissible under this section although I tend to recoil from the generality of the view expressed in Herron's Case. A trial to be "fair" must be fair to defence and prosecution alike and "fairness" is a somewhat vague concept if applied to matters other than the ascertainment of guilty knowledge. I do not think it is necessary for me in this judgment to go into the extent of the discretion but merely to note that it exists and that trial judge accepted that it did exist. 20. Third question which arises is: How fully must the trial judge acquaint himself with the details of the evidence before exercising or refusing to exercise his discretion to exclude it? As to that I have no doubt but that he must fully acquaint himself with it. 21. Considerable portions of the evidence adduced by the prosecution was led by means of agreed statements. This, while a great time saver can be dangerous for it may lead to the introduction of irrelevancies to which the parties would be more alive if the evidence were led in the usual way. It appears clear from the record that the judge may have failed to acquaint himself fully with the evidence before he came to a decision not to exclude it and thereby disqualified himself from exercising his discretion. When objection to the admissibility was made he ruled on the authority of Davis (supra) that the evidence was admissible but as to his discretion said that he would consider it
When "all the evidence which goes to the charge" had been led his attention was not directed by counsel to the nature of the evidence to be given under section 29(3)(a) and he refused to exercise his discretion to exclude it so that the statements in which it was contained were read to the jury. 22. The next question is: If he fails properly to exercise his discretion to exclude what is the result? I do not think it possible to regard it as other than fatal. Evidence of possession of other stolen goods is necessarily highly prejudicial and once it is in its damaging effect on a jury is incalculable. Even although that was a risk the Legislature was prepared to take, the Legislature was prepared to take the risk subject to the judicial discretion to exclude. One cannot say what effect its admission may have had on the jury. 23. But the matter does not end there for the evidence so admitted exceeded in a number of ways the extent of the evidence which may be adduced under section 29(3). There are conflicting authorities on what may be admitted under the section. The case of The Crown v. Smith & Currier(9) suggests that all the surrounding evidence relating to a different possession may be adduced. Unfortunately, the trial judge did not have cited to him the conflicting case of R. v. Bradley(10) decided by the Court of (Criminal) Appeal in England. This is understandable since that case was decided on the 19th of November 1979 - a very short period before the hearing of this case which was concluded in January of this year. We are fortunate in that the shorthand note of Bradley was produced to us. The trial judge did not have this advantage. 24. I have come to the conclusion that Bradley is to be preferred to Smith & Currier. Bradley's Case held that the section renders admissible "evidence of a most prejudicial kind" so that only that expressly rendered admissible can be placed before the jury. The section must be strictly observed. That was not done in this case. All the surrounding circumstances as to the third appellant's dealing with the cloth in question were canvassed including a cautioned statement made by him in relation to it. This statement must have indicated to the jury that his prosecution was or might have been considered in relation to his handling of some of the cloth. This was highly prejudicial. The extent then of the evidence which might be adduced was exceeded and as a result the appellant was under a double handicap. The burden of showing that he had guilty knowledge in his handling of the stolen machines remained on the Crown but the evidence adduced regarding the cloth showed not only that he handled the cloth but also that he was suspected of handling it knowing it to have been stolen. In the eyes of the jury he must really have been facing three charges. Firstly, that the subject of the indictment; secondly, that of handling in somewhat dubious circumstances cloth not proved to have been stolen, and thirdly, of handling stolen cloth which the jury were impliedly told he was suspected of having handled dishonestly. This the section does not permit. It permits only evidence as to his "handling" of other stolen goods and not as to his handling of them under suspicious circumstances. True it also permits of proof of earlier convictions but this is a vastly different thing. It is one thing to have to face the fact that one has been convicted before, it is quite a different thing to have to face allegations that one has been suspected before or indeed suspected after as in this case. 25. What effect should this have? Although I consider that it was open to the judge to admit evidence of possession of property stolen after the date of the charge I consider he did not fully inform himself of the nature of the evidence so as to enable himself properly to exercise his discretion to exclude it. I am also satisfied that he was wrong in law in admitting evidence exceeding the limits permitted by section 29(3). For those reasons alone we would have felt compelled to quash this conviction. 26. What concerns me most in this appeal however is the fourth ground of appeal. That reads:
27. What happened was this: In the course of the investigation of this matter the first appellant was approached by the police. He confessed to the commission of the robbery in question. In the course of his confession he said that he had been incited to commit this robbery by a person to whom he referred as "Fei Lo". In his confession he also said that "Fei Lo" had told him that a man called "Ah Law" had planned the robbery "for us". The third appellant gave evidence on oath and in the course of his cross-examination, counsel for the Crown asked him the following questions:
Unfortunately, it was only at that very late stage that counsel for this appellant objected to this line of cross-examination. After discussion the learned trial judge presumably recognising that the damage had been done said:
In the course of his summing-up the trial judge was most particular to inform the jury that statements made by one accused were not evidence against his co-accused and also most particular to tell the jury that they should disregard suggestions made by counsel and denied by the witnesses to whom they were made. Unfortunately, the illustration he gave of a denied suggestion and its valuelessness as evidence was a reference to suggestions made by counsel for this appellant of misbehaviour by the police and not a reference to the cross-examination of this appellant which I have already quoted. He did not refer to that at all but the damage had by then been done. The very question itself that this appellant whose surname is Law was the "Ah Law" named in a statement made by the confessed robber was enough to create prejudice which nothing could remedy in the minds of the jury. That the name "Ah Law" was mentioned in the confession made by the first appellant was a matter which was already before the jury. That was unavoidable but unfortunate since that statement was not evidence against the third appellant. Its contents should never have been put to the third appellant nor should it have been suggested to him that "Ah Law" was his nickname. The nickname in the statement was the nickname not of a handler of stolen property but the nickname of a person who had allegedly masterminded the robbery. Hazlitt has said
The nickname "Ah Law" was certainly the heaviest stone that could have been thrown at the third appellant and the effect of it on the jury must have been crucial. All these factors compel us to allow this appeal. The third appellant's conviction is therefore quashed and he is discharged. Addison, J.: 28. I agree. Garcia, J.: 29. I agree. Representation: Mr. Anthony Hidden, Q.C. & Mr. John Bleach (Hampton, Winter & Glynn) for third appellant. Mr. John Bleach (Hampton, Winter & Glynn) for second appellant. First appellant in person. Mr. B. Moorfoot, Crown Counsel, for Crown/respondent. (1) 1 Mood 146 (2) 2 Den 264 (3) 1 F & F. 51 (4) (1906) J.P. 514 (5) (1953) 1 Q.B. 489 (6) No. 5120/B/70 (7) 50 C.A.R. 81 (8) 50 C.A.R. 132. (9) 13 Crim. App. R. 151. (10) 5497/C/78 |
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