Chu Shing Ming v. The Queen
Read the full judgment text of CACC 536/1979 on BabelCite. This Court of Appeal judgment was delivered on 5 July 1979.
1. The appellant is convicted of handling stolen goods. The particulars are that on the 8th March 1979, at the Phoenix Records Stall No. 1 Pennington Street, he did dishonestly handle stolen goods namely three E.M.I. Music Centre tapes believing the same to have been stolen. The evidence leading to the conviction of the appellant was that of the two thieves. Their evidence was that they stole, sometime prior to the 8th March, three tapes from the E.M.I. stall, brought them to the appellant's sta
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CACC000536/1979
Coram: Li, J. in Court Date of Judgment: 5 July 1979 ----------------- JUDGMENT ----------------- 1. The appellant is convicted of handling stolen goods. The particulars are that on the 8th March 1979, at the Phoenix Records Stall No. 1 Pennington Street, he did dishonestly handle stolen goods namely three E.M.I. Music Centre tapes believing the same to have been stolen. The evidence leading to the conviction of the appellant was that of the two thieves. Their evidence was that they stole, sometime prior to the 8th March, three tapes from the E.M.I. stall, brought them to the appellant's stall and sold them to the appellant for $40. The value of the tapes was alleged to be $24 each. The police officer who went to the appellant's stall to investigate seized three tapes which were similar to the tapes stolen by the two boys. They were not the very tapes that were stolen from the E.M.I. stall. In answer to a caution the appellant said that sometime ago he obtained these three tapes seized in an exchange with customers whom he could not remember. Nor could he remember the date when the exchange took place. He said that these types of tapes which had been seized from him would be worth $21.50 each. Thus the total value of the three tapes is $64.50. The appellant in his evidence in the court below said that one of the boys might have been there and said the boy said he bought those tapes from the appellant's stall. The boy wanted to change them for records. The appellant had a deal with this boy and gave the boy two records of $24 each in exchange for the three tapes. Upon such evidence the learned magistrate convicted the appellant saying that:
Then in his Statement of Findings he said:-
2. The main ground of appeal is that there has been no corroborative evidence against the appellant in the court below and that the learned magistrate failed to warn himself and guarded himself against the danger of convicting without corroborative evidence. Learned counsel for the Crown quite correctly concedes that there has been no corroborative evidence in this case. However, he contends that failure to spell out the very warning does not necessarily mean that the conviction must be quashed. He cites, in support of his contention, one of my decisions in Criminal Appeal No. 349 of 1979, to the effect that even a magistrate failed to spell out the warning to himself no miscarriage of justice was done because looking at the totality of the evidence there was corroborative evidence for the learned magistrate to convict. What I said in that instance was that :-
3. That case is quite different from this case where looking at the totality of the evidence there has been no corroborative evidence. Perhaps I must observe that in this case the matter in issue was the knowledge of the goods having been stolen. Hence the matter in issue is whether the tapes were sold to the appellant for cash or surrendered to the appellant in exchange for two records. Had it been a cash sale it would be definitely a sale under value. However, an exchange is a different matter. It is notorious in this part of the world, and indeed in some other parts of the world, that any exchange involve an exchange at under value. Despite the difference in the value for the exchange I cannot say that there has been corroborative evidence even though this evidence of under value comes from the appellant himself. I have been asked to uphold the conviction on the ground that in fact no miscarriage had been done. It is argued that had I put myself in the place of the learned magistrate and warned myself I would still convict the appellant. However, I am not able to accede to this contention. Had there been corroborative evidence I would certainly have upheld the conviction despite the magistrate failing to warn himself of the danger. However, there is no corroborative evidence in this case. The magistrate has failed to warn himself. It is impossible for me to be certain that I would convict. I have no opportunity of seeing and hearing the witnesses. For these reasons the conviction must be quashed and the sentence set aside.
Representation: Mr. Barretto (Alfred Lau & Co.,) for appellant Mr. I.G. Cross, Crown counsel, for respondent |