The Queen v. Law Chi Kong

CACC000491/1987

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Kempster, Hunter & Power JJ.A.

Date of hearing: 17th May 1988

Date of judgment: 17th May 1988

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J U D G M E N T

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Kempster, J.A. :

1. On 15th July 1987 in Shatin District Court and on his own plea Law Chi Kong was convicted by Judge Remedios, on a charge of burglary occurring on 6th December 1986. On the 22nd September 1987 after trial he was convicted by the same judge of a second offence of burglary occurring on 31st January 1987. Against that latter conviction he. seeks leave to appeal.

2. The evidence adduced showed that the,proprietor of. a plastics factory on 6th and 8th floors of Fung Tat Industrial Building, Fo Tan, returned to his native village in China for the Lunar New Year 1987. He left his factory closed and secured. On, returning to Hong Kong on. 31st January, he went to his office on the 8th floor where, at about 6 p.m., he heard the sound of packages being moved on a lower floor. Going down to his own, premises on 6th floor he found a woman and two youths, none of whom were known to him, moving his plastic raw material and products, packed in bags and boxes, into the corridor. The proprietor at once returned to his office on the 8th floor and phoned the police. On their arrival and accompanied by the proprietor, they found bags and boxes of his plastic raw material and products on the 9th floor. On 2nd February the proprietor of the 6th and 8th floors recovered from the 9th floor 202 bags of plastic raw materials and other bags and boxes containing plastic products together worth some HK$152,000 as far as he was concerned.

3. The occupier of the premises on the 9th floor also gave evidence. He too was running a plastics factory and said that on 31st January 1987 the goods recovered by the proprietor of the factory on 6th and 8th floors on 2nd February had been sold to him by the applicant who claimed to own them. The price was HK$18,366.80. Previously the applicant had claimed to own goods stored on the 6th, 8th and 14th floors of the building. The occupier of the premises on the 9th floor also said that he himself, his wife and the applicant had transferred the goods from the 6th to the 9th floor by handcart and that he had been arrested for his pains. The applicant elected not to give evidence:

4. The trial judge, somewhat eliptically, expressed himself satisfied of the applicant a guilt on the basis of the evidence called and convicted him accordingly. Section 80 of the District Court Ordinance (Cap 336) does not permit both of contemporaneous and ex post facto statements of Reasons for Verdict and we ignore the document dated 26th October 1987.

5. The grounds of appeal read:

"In all the circumstances of this case the conviction of the Appellant is unsafe and unsatisfactory.

Particulars

(a)The learned trial judge has not properly evaluated the evidence of the prosecution witnesses and resolved the discrepancies therein.

(b)The learned trial judge in arriving at his verdict has approached the question of guilt in an illogical manner".

6. The discrepancy particularly relied upon was that between the two plastic manufacturers as to the value of the goods. The would-be buyer thought them worth only some HK$18,000. But this issue went at best only to sentence and it was no part of the judge's duty in criminal proceedings to determine the true value. We see nothing in the suggestion that the stolen goods were not properly identified.

7. A final point, neither readily referable to any ground of appeal nor taken below, was that the value put on the goods by the would-be purchaser was so low as to suggest knowledge on his part that they were stolen and that the judge should have rejected or questioned his testimony in consequence. As to this Power JA has observed during argument that the witness in question was valuing the goods as scrap.

8. The application for leave to appeal against conviction is dismissed.

Representation:

Mr Ian H Polson (D.L.A.) for Applicant

Mr A Bruce for Crown