Yu Shu Yuen v. The Queen
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CACC000475/1980
----------------- Coram: Roberts, C.J. Date of Judgment: 20 June 1980 ----------------- JUDGMENT ----------------- 1. This is an appeal from an order of forfeiture to the Crown of five items which were seized by the police during investigations into a robbery in 1978. 2. The appellant's first complaint was that the police have never provided him with a list of the articles which they seized from him on that occasion. 3. Crown counsel has undertaken to provide the appellant with such a list in the near future. The appellant next alleged that the police had lost some of his property. I advised him that his correct course was to get in touch with the Legal Aid Department, to see if he qualified for legal aid. The fact that he is in prison does not prevent him from pursuing any civil claim he may have. 4. Thirdly, he asked for the return of the items which were ordered by the magistrate to be returned to him. I was assured by Crown Counsel that these were being held pending this appeal and that they will be returned to him in prison custody in the near future. 5. The appellant informed me that he was not interested in two of the five items which were forfeited, that is to say, the handcuffs and the walkie-talkie, since they did not belong to him. 6. He asked that the other three items, consisting of two oxyacetylene burners, hoses connected with the burners, and some pressure gauges should be returned to him also. 7. He explained to me that the pressure gauges had been used by him for diving, that is to say for recreation. The burners, and the hose attachments to them, were used by him in the course of his job, which was to do metal work, mainly rails and hangers, for a garment factory. 8. The magistrate ordered the confiscation of these five items under section 102(1)(c) of the Criminal Procedure Code, which entitles a magistrate to make an order, if it appears to him that property in the possession of the police has been used "in the commission of an offence". 9. The Statement of Findings does not disclose the offence on which the magistrate based his order of forfeiture. However, the appellant has drawn my attention to references in the magistrate's statement of findings to a charge of burglary which was brought against the appellant, though there was no evidence that he or anyone else has been convicted of that offence. 10. While it is not necessary, before a magistrate can exercise his powers under that sub-paragraph, for the person in possession of the property concerned to have been convicted of an offence, it is necessary for somebody to have been convicted of an offence. 11. Therefore I think that the magistrate should not have purported to act under section 102(1)(c). But he would have been entitled to make such an order under section 102(1)(a), which can be used when property has come into the possession of the police in connection with any offence. This property came into police possession in connection with the offence of robbery, of which the appellant was subsequently convicted. 12. However, it may well be that the magistrate would have come to a different conclusion, as to the forfeiture of the items, if he had heard the statement which the appellant made this morning. If this were believed, the magistrate might have come to the conclusion that an order of confiscation should be have been made. 13. I am not, however, prepared to reverse the magistrate's findings without further inquiry as the credibility of the explanation put forward by the appellant. 14. I shall therefore return this matter to the magistrate, with a request that he should re-open it and take evidence from the appellant as to the ownership of the three disputed items. 15. The appellant will have an opportunity to call other witnesses, as well as giving evidence himself before the magistrate in support of his claim. 16. As the appellant has not pursued his appeal in relation to the two items, that is to say the handcuffs and the walkie-talkie, I will not disturb the magistrate's order in relation to them. Representation: Appellant in person Whitehouse for the Crown/Respondent |
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