Chu Yat Hung v. The Queen

Case No.CACC 50/1975

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000050/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 50 OF 1975

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BETWEEN
	CHU YAT HUNG	Appellant
	and
	THE QUEEN	Respondent

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Coram: Pickering, J.

Date of Judgment: 20th March, 1975.

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JUDGMENT

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1. The appellant was convicted upon two charges of handling stolen goods, namely motor-cycle parts. Upon the 28th August last year the appellant's motor-cycle was stolen, a fact which he reported to the police. On the following day he found the cycle but it had then been stripped of its major parts. He again informed the police.

2. Thereafter he took the motor cycle to his father's house where a friend of his father offered to supply and reinstate the missing parts for $300. The parts, the friend said, were to be obtained from a scrap-yard. Prior to that offer being made, the appellant had inquired at a garage about the price of replacement and had been quoted approximately $450 for parts alone.

3. At about 4 p.m. on the 30th August, another motor cyclist left his machine in Fife Street and, upon his return at 8 p.m., the machine was missing. He reported this theft to the police. Subsequently the friend of the appellant's father, whilst the appellant was at work, fitted the necessary spare-parts to the appellant's motor cycle. When the appellant returned and saw these parts - which he described as "old and some of them damaged" - he again inquired where the parts had come from and was told that they had come from a scrap-yard.

4. On the 2nd September the second stolen motor-cycle was recovered with parts missing and the owner later identified the reinstated parts of the appellant's motor-cycle as coming from his own machine. On the 3rd September the appellant was charged with these offences, an event which he apparently greeted with surprise.

5. An important element leading to the learned magistrate's conclusion that the appellant was guilty, was the discrepancy of price between the $450 quoted by a garage for the parts, and the $300 agreed upon with the friend of the appellant's father for supplying the parts and assembling them.

6. Mr. Ronny Wong, for the appellant, argues that the range of fluctuation of prices in regard to second hand spare-parts is a very wide one and takes issue with the learned magistrate's comment, in his Reasons for Verdict, that the witness who quoted $450 for parts had said in evidence that whilst he could not remember the exact prices he had quoted they would be the lowest possible in the circumstances. In fact what this witness said in evidence was that the prices he had quoted were what he considered to be "reasonable" prices for the various items, so that the learned magistrate has unwittingly over-stated the position by his reference to the "lowest possible" prices. Mr. Wong argues that there is room for the conclusion that although a quotation of $450 had been obtained, that did not rule out the possibility that $300 to cover spare-parts and their assembly, the parts having been obtained from a scrap-yard, was impossible. The appellant had been told that the parts were to be obtained from a scrap-yard; upon seeing them installed, he had again been told the same thing; he made no effort to repaint or refurbish the shabby parts; and, as an auxiliary policeman, he was aware that police investigations would almost certainly continue into the theft of parts from his motor-cycle so that he would be unlikely to permit the installation of other stolen parts upon the machine; having regard to the twice-uttered statement that the parts were obtained from a scrap-yard there was nothing to put the appellant on enquiry; it was not a case where the appellant suspected that something was wrong and closed his eyes and the inference of guilt was not the only possible inference.

7. In this connection Mr. Wong quoted a dictum of Huggins, J. in Chan Yuet Kwan v. Reg. ⁽¹⁾ where it is stated:

"It is rightly contended that an inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts. Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be drawn from the facts on which it is based is one of guilt, for where primary facts admit of two inferences, one of guilt and one of innocence, they can give rise to no more than suspicion and if suspicion be added to suspicion the total can be no more than suspicion."

8. The test here required, the argument continued, was that of knowledge or belief and that was a subjective question in each case.

9. In the case of Atwal v. Massey ⁽²⁾ Lord Widgery said:

"The position can be stated quite simply. If when the justices say that the appellant ought to have known that the kettle was stolen they mean that any reasonable man would have realised that it was stolen, then that is not the right test. It is not sufficient to establish an offence under s.22 that the goods were received in circumstances which would have put a reasonable man on his enquiry. The question is a subjective one: was the appellant aware of the theft or did he believe the goods to be stolen or did he, suspecting the goods to be stolen, deliberately shut his eyes to the consequences."

10. Similarly in Reg. v. Grainge ⁽³⁾ it was held that in order to prove the required knowledge or belief on the part of an accused it was at least necessary to show that he had suspected that the goods in question had been stolen but had deliberately shut his eyes to the consequences.

11. The test being subjective, the argument continued, it was not enough to say that a reasonable man would have realised that the goods were stolen nor that there was a suspicion that they were stolen. In his Reasons for Verdict the learned magistrate had said:

"I took the view that he had deliberately chosen to ignore the possibility of the tainted nature of the goods he was acquiring and shut his eyes to the realities of the situation".

12. Had that sentence stood alone, counsel argues, he would concede that it represented a correct application of the test in the two last quoted cases. In that event the appellant's ground of appeal would be, in answer, that he took steps to inquire as to the source of the goods and was satisfied with the answers. However the learned magistrate had gone further in the next sentence of his Reasons for Verdict where he said:

"I was quite satisfied that if he had addressed his mind to the situation he would have been well aware that the transaction was highly suspicious".

13. Here, counsel contended, the learned magistrate had misdirected himself and fallen into the area of mistake pointed out in the cases of Atwal v. Massey and Grainge.

14. Mr. Hanson, for the Crown, conceded that the sentence complained of deserved serious consideration by this Court but doubted whether that sentence, in view of the preceding statement that the learned magistrate had taken the view that the appellant had shut his eyes to the realities of the situation, indicated that the magistrate had employed anything other than the subjective test.

15. Moreover, Crown counsel argued, the doctrine of recent possession applied since the thief of the parts said that he had fitted them to the appellant's motor cycle on the 30th August, the same day upon which he had stolen them from the luckless parker in Fife Street. Thus the magistrate could infer, in the absence of reasonable explanation, that the appellant received the parts knowing them to have been stolen. The rub here, as I see it, is that an explanation which cannot be said to be wholly unreasonable, was in fact given. It was said that the parts were shabby and that the appellant had been told before they were obtained and after they had been fitted, that their source was a scrap-yard. I do not think that the doctrine of recent possession assists the Crown.

16. The kernel of the matter is whether or not I can be sure that the learned magistrate did in fact apply the subjective test and in the two extracts from his Reasons for Verdict which I have quoted, there is an apparent contradiction, a quite real ambiguity. In the first extract he is saying that the appellant deliberately shut his eyes to the reality of the situation. In order to do that, the appellant must first have applied his mind to that reality. Yet the second extract presupposes that the appellant never did address his mind to the situation and if that were the case the test applied could not have been a subjective one.

17. The point is a fine one but weighing it carefully, I cannot be sure that the subjective test was the one applied so that the appeal must be allowed and the fine of $500, already paid, be returned to the appellant. Since it is not disputed that the parts in question did come from the second stolen motor-cycle, I do not interfere with the order for the return of those parts to the owner of that machine.

Representation:

Ronny Wong (Rowdget W. Young & Co.) for appellant

R.V. Hanson, C.C., for respondent.

(1) Cr. App. No 212 of 1973 (unreported).

(2) 1971 3 All E.R. 881, 882.

(3) 1974 1 All E.R. 928.