HKSAR v. Wong Chong Kai

CACC000551/1997

1997, No.551
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram: Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 6 March 1998

Date of Judgment: 19 March 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 13th August 1997, this Applicant was convicted of handling stolen goods contrary to section 24(1) and (2) of the Theft Ordinance, Cap.210. This followed a trial before Judge Kilgour in the District Court.

2. In summary, the particulars of the charge were that on or about 12th December 1996 (as amended), the Applicant had dishonestly received two stolen LHD Mercedes Benz S320 cars knowing or believing them to be stolen goods.

3. It was an admitted fact at trial that the cars mentioned in the charge were stolen. The real issue to be determined was whether the Applicant was aware of the nature of the goods inside the container in which the two cars were being transported at the time he took the container into his constructive possession. The Applicant could only be found guilty if it was proved that he knew this, and that at the time of his receipt of those goods he knew or believed the cars to be stolen.

4. There was no direct evidence against the Applicant to establish either of these essential ingredients to the charge from which, if proof was established, dishonesty obviously flowed. Having looked at the evidence of the surrounding circumstances, the trial judge drew inferences that were adverse to the Applicant in satisfying himself that these issues had been proved.

5. The first ground of appeal advanced on the Applicant's behalf by Mr. Plowman, S.C., is directed at what he submits is the poor quality and insufficiency of evidence which led the judge to draw these crucial inferences. In his second ground, Mr. Plowman has argued that the judge was wrong to have relied upon evidence that the cars in the Applicant's possession had been recently stolen when the real issue in the case was concerned with whether the Applicant knew what he had in his possession at all.

6. The judge accurately summarized the prosecution's evidence in his Reasons for Verdict as follows:

"..... On 7 December 1996, a container with a coded number arrived in Hong Kong by sea from Taiwan. Inside were two Mercedes-Benz, models S320, which were the property of WU Wan-liao and LIN Leng-fong. These two vehicles had been stolen in Taipei ten days, and one week, beforehand, on 27 November and on 1 December 1996.

The shipping company handling the container was Yangming Marine Company. Their agent in Hong Kong was Waihai Enterprises and their designations are seen on the shipping documents, P1, P2 and P3.

The defendant is the proprietor of Yield Fast Development. On 12 December, his shipping clerk, TAM Chun-hiu (PW1) presented a bill of lading, P1, in relation to the container. PW1 was instructed by the defendant to write on the release orders that follow the bill of lading, (P2) that in the container were 'auto parts'. The contents of the container were described in the bill of lading in English as a 'used freezer'. To endorse the bill of lading, the defendant gave PW1 a chop of the Lung Fung Trading Company Limited. There is no record of such a company with the Companies Registry.

PW1 said that the defendant had told him to pass on the release documents to PW2 who is the proprietor of Hing Tai Kee Sea and Cargo Transportation Company. He said, having completed the formalities, he did this in the evening around 5 pm of 12 December 1996.

The story is taken up by PW2 who was told by the defendant to transport the container to San Hing Tsuen and he accordingly arranged for his driver, PW3, to do this. A receipt for the container was issued by the terminal to PW3 and that document is P3.

The warehouse at San Hing Tsuen is apparently shared by the defendant with PW2 who is a transportation company proprietor. As is common practice, and as can be seen from the photographs of the container, a numbered seal is in place and tallies with the numerations in the shipping documents.

The next development was on 26 December 1996 when PW2 says he received a call from the defendant who apparently at that stage was in mainland China. The defendant told him to get staff to move the container to Ma Tso Lung. Ma Tso Lung is a village or a spot in the vicinity of Sheung Shui, not too far from the border. PW2 says he did not ask the defendant why this had to be done. Moreover, he did not have any staff available at that time but was told by the defendant to arrange for a Yield Fast driver to move the tractor and trailer.

Accordingly, he told PW4, Mr. CHAN Kin-ho, who is an employee of Yield Fast to move the container. He says that he took the container to Ma Tso Lung and left the trailer and container by the roadside, as shown in the photographs. The container had aroused police suspicion and they contacted PW4. On 28 December 1996, PW4 was taken by them to the container where the seal was broken and the container unlocked. Inside were the two stolen Mercedes and a third Mercedes."

7. The Applicant elected not to give evidence.

8. Mr. Plowman has submitted that the matters taken into account by the judge, when he then went on to draw certain inferences, are flawed in several respects. He points out in particular that this was, for the Applicant, a normal transaction for someone who was accustomed to import and export automobile parts when trading with China. He also places emphasis on a passage in the Reasons where the judge referred to "two possibilities" relating to the Applicant's request on 26th December 1996, that the container should be taken to Ma Tso Lung. He submits that one of these so-called possibilities was irrelevant and that both were inconsistent with guilty knowledge on 12th December 1996 when the Applicant originally received the container. There is considerable force in this last submission.

9. The passage where the judge deals with these possibilities is to be found at page 9 line S in the appeal bundle and reads as follows:

"The facts demonstrate a close working relationship between (the defendant) and PW2, the owner of the transportation business. His specific orders to remove the container to the warehouse or godown at San Hing Tsuen were specific. This container remained there for a number of days under the scrutiny of certainly PW2. The defendant gave the orders to remove the container to Ma Tso Lung. This was removing it from secure premises to an insecure roadside area. This raised two possibilities: the first that the trailer was being left there for collection by someone else for onward transmission by a third party who nevertheless had full knowledge of what the contents of that trailer would be, or alternatively, he wished to distance himself from the trailer by removing it from his warehouse.

There are, as I have just pointed out, of course, two possible inferences. The problem as far as the defendant is concerned is that both of them or either of them contain an inference of guilty knowledge on his part, and both are consistent with handling. I do not think in the circumstances there is room for any other inference."

10. Mr. Bruce S.C. concedes on behalf of the Respondent that the knowledge which a third party might have concerning the trailer is irrelevant and he accepts that this was not a material consideration. However, he argues that there were several other matters on which reliance was correctly placed leading inevitably to the necessary inferences being drawn against the Applicant.

11. We have considered these.

12. Firstly, in regard to the movement of the trailer to an unprotected area at the side of the road, if this had stood alone, it is obvious that this evidence would be equally consistent with guilty knowledge having been acquired on or about 26th December 1996 as at the date when the goods were received on or about 12th December 1996. However, this evidence did not stand alone.

13. The Applicant was a trader in motor car parts, not refrigeration units Whilst the evidence was that the Applicant knew very little English so that it may be that he was unable to read all of the words on the bill of lading which referred to these goods as "used freezer", it was the Applicant who gave instructions to PW1 to write "auto parts" in Chinese on the release order (P2). He also gave PW1 the chop bearing the name of the non-existent company calling itself Lung Fung Trading Limited. The Applicant retained at all times close links and control over the container until he gave instructions for the container to be parked at the roadside on 26th December 1996 not far from the border with China.

14. These were circumstances that in our judgment cried out for explanation when taken together with what the judge found to be strong evidence of recently stolen goods being found in the possession of the Applicant. This leads us to consider the second ground of this application.

15. In Archbold (1998 Ed.), "recent possession" is dealt with at paragraphs 21-125 to 127, and the following passage from Cross and Tapper on Evidence (8th ed.) p.35 is quoted:

"If someone is found in possession of goods soon after they have been missed, and he fails to give a credible explanation of the manner in which he came by them, the jury are justified in inferring that he was either the thief or else guilty of dishonestly handling the goods, knowing or believing them to have been stolen ... The absence of an explanation is equally significant whether the case is being considered as one of theft or handling, but it has come into particular prominence in connection with the latter because persons found in possession of stolen goods are apt to say that they acquire them innocently from someone else. Where the only evidence is that the defendant on a charge of handling was in possession of stolen goods, a jury may infer guilty knowledge or belief (a) if he offers no explanation to account for his possession or (b) if the jury are satisfied that the explanation he does offer is untrue."

16. Mr. Plowman has submitted that this general rule as to recent possession ought not to apply where no physical handling of the goods has taken place, such as in the present case where they have at all times remained in a sealed container. We can see no logical reason why that should be so. Here was a motor trader receiving a container marked as a "used freezer" which he caused to be released under the description of "auto parts".

17. The container had arrived falsely described and was released under another different false description. The cars were stolen in Taiwan only a few days earlier. We are confident that recent possession was a factor proper to be used in deciding that the Applicant was a dishonest receiver of the goods when they came into his possession on or about 12th December 1996 and that no improper use was made thereof.

18. In these circumstances, we are satisfied that there is no substance in either of the grounds advanced on behalf of this Applicant. The application is accordingly dismissed.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. and Mr. Narash Daryanani, S.G.C. (D.P.P.) for the Respondent.

Mr. Gary Plowman, S.C. and Mr. Paul Leung instructed by Messrs. S.H. Chan & Co. for the Applicant.