The Queen v. Chan Chung Chiu

IN THE COURT OF APPEAL

1987, No. 132
(Criminal)

BETWEEN

THE QUEEN

and

CHAN CHUNG CHIU

_______________

Coram: Roberts, C.J., Silke, V.-P. &. Power, J.A.

Date of Hearing: 20th May 1987

Date of Judgment: 20th May 1987

_____________________

J U D G M E N T

_____________________

Silke, V.-P.:

1. A burglary took place at the premises of Victoria Gems and Pearls on the night of the 24th and 25th October.

2. On the 27th October, a raid was carried out on a premises at 339 Portland Street, 2nd floor. In that premises, in cubicle No.5, lived the Applicant. Keys were taken from him. Nothing was found in cubicle 5. The keys were found to open the door to cubicle No.6, the Applicant, by implication having denied any connection with cubicle No.6 prior to the keys being used.

3. After its door was opened the Applicant spoke of his connection with it; his brother having rented it some years ago and it presently being used by his mother-in-law on occasions. He paid the rent. In cubicle No.6 were found two bags of pearls. In each of the bags the pearls were in packets and certain packets in each of the bags were subsequently identified as part of the property stolen from the Victoria Gems and Pearls. There were a total of nine packets of pearls between the two bags which were not identified as having been stolen.

4. The Applicant was subsequently charged with handling stolen goods; in that he dishonestly received 43.915 kilogrammes of pearls valued at $151,180, knowing or believing the same to be stolen goods. He was tried by His Honour Judge Baily in the District Court and convicted. There had been an alternative charge introduced at the trial but this was not adjudicated upon, the substantive charge being made out.

5. The total value, although the word "value" has not been explained as being either the original purchase price, the wholesale price or the retail price, of all the pearls, including the non-stolen ones, was not disputed at $248,000.

6. The Applicant gave evidence generally very much in line with three cautioned statements which were introduced without objection during the course of the prosecution's case. The dispute between the Applicant and the prosecution witnesses rested on whether he was asked did he "live" in any other cubicle or did he "rent" any other cubicle in the 339; whether or not he had indicated his interest in cubicle No.6 before the keys were tried in it; and whether it was Sergeant Chu or Inspector But who actually entered cubicle 6 first and discovered the pearls.

Mr. Alderdice, who did not appear for the Applicant, in the Court below, has presented us with six grounds of appeal. Two of which only, we think, to have moment and indeed, Mr. Alderdice accepts that those two grounds encapsulate his submissions upon the application.

7. These were first: that the trial judge in his judgment did not evaluate the case advanced by the Applicant in cross-examination and his testimony at trial and the contents of the three statements admittedly made by the Applicant on the day of his arrest; second: that the judgment does not disclose whether or not the trial judge relied upon or considered the doctrine of recent possession advanced by the prosecution as one of the reasons why there should be a conviction.

8. The prosecution relied heavily upon recent possession. It was said in The Queen v. Chan Wing Kwan and another[1] by another Division of this Court:

"If the only evidence against a defendant is that he was in possession of recently stolen property, it is open to the judge to infer guilty knowledge if the defendant has offered no explanation to account for his possession of them or if the judge finds that an explanation given by the defendant and consistent with innocence is untrue."

Having set out in somewhat elliptical form the case for the prosecution and, cursorily, the case for the defence - and it was accepted that the Applicant was a China trader in pearls - the trial judge stated that he rejected the Defendant's application. Immediately preceding that rejection, three items were mentioned which, it appears to us, were: the basis for that conclusion. First, that in his third statement, the Applicant said the pearls were valued at $50,000. Second: that in his evidence he had said that the $50,000 cost was the costs of pearls bought in China but that he did not now dispute the total valuation of $248,000. Third, that the Applicant “quite inaccurately estimated the weight of the pearls at 50 kilogrammes" - the weight was given as 80 kilogrammes.

9. The valuation of $248,000, of course, was not the valuation of the stolen pearls and this error was perpetuated in the Reasons for Sentence where reference is also made to "the goods consisting of $248,000 odd worth of fresh water pearls."

10. The key matter here, and there was no explict reference made to it at all, was recent possession. It is unnecessary for a judge sitting alone to direct himself in the same manner as a judge directing a jury even where the evidence is inferential, as it necessarily must be in a matter of this kind. The trial judge must, however, be seen to direct his mind to matters of such major importance.

11. This absence, together with the error as to price, brings us to the conclusion that this conviction cannot be upheld.

12. We were asked to apply the proviso. The evidence here was not overwhelming, as I have said it was inferential. We do not think it would be proper to apply the proviso.

13. However, having considered the nature of the charge, the evidence produced, the time between the charge itself and now and the fact that the Applicant has had one trial already, we think that the interests of justice and the interests of the community, require that there be a re-trial.

14. We grant the application, treat the hearing as the hearing of the appeal, allow the appeal and quash the conviction. We order a re-trial on the same indictment.

G. Alderdice, Esq. (Lawrence Ong & Co.) for Applicant.

M.D. Wilson, Esq. for Crown/Respondent.

[1]  Criminal Appeal No. 121 of 1985 (unreported)