The Queen v. Kwong Cheuk Wah

CACC000561/1988

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Coram: Hon Fuad, V.-P., Kempster & Penlington, JJA

Date of hearing: 31 March 1989

Date of judgment: 31 March 1989

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J U D G M E N T

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Kempster, JA:

1. On 9 November 1988, following trial in Hong Kong District Court, Kwong Cheuk Wah was convicted by H H Judge Gall of handling stolen goods and sentenced to 2 years' imprisonment. Against that conviction, alternatively against that sentence, Kwong seeks leave to appeal.

2. The applicant, together with 5 other men, was charged with the commission of a burglary which took place at Wah Shun Industrial Building, Yau Tong, Kowloon, on or about 21 July 1988. 272 cases of brandy worth HK$369,000 and other items, including HK$375 in cash, were stolen. This was common ground as was the fact that on 25 July, 4 days after the burglary, the police observed all those charged, including the applicant, transferring the stolen goods from a broken down lorry to a serviceable vehicle at Fo Tan. They were arrested. There was no other evidence linking the applicant with the burglary and the trial judge properly found himself less than sure that a charge under section 11(1)(b) of the Theft Ordinance (Cap 210) was made out and acquitted.

3. Having regard to the provisions of section 32 and of the Schedule it then fell to the judge to determine whether or not he was sure that the applicant was guilty of dishonestly assisting in the removal of the stole goods knowing or believing them to be stolen as provided by section 24(1) which reads:

"A person handles stolen goods if (otherwise than in the course, of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so".

4. The applicant gave evidence to the effect, as summarised by the trial judge, that he was asked by a man to assist in the transfer for the sum of $400 and that he found it unusual for the goods to be transferred from a dusty disabled van to another lorry and also that, as he was moving the goods, he had a suspicion that they were stolen. From these admissions the judge concluded that, on his own evidence, the applicant was assisting in the removal of stolen goods.

5. Sometimes an employer in urgent need to get a job finished pays several times the normal rate. But any such large offer puts he potential employee on inquiry as occurred in the instant case. The applicant questioned his prospective employer, scarcely known to him, about this high rate of pay. He did so in the Asia Night Club in the early hours before going to the scene of the transfer. His suspicions having been aroused at this initial stage nothing subsequently transpired which was calculated to provide assurance that the transaction was above board. Rather to the contrary the applicant discovered that the goods he was shifting were extremely valuable, that his "employer" had made himself scarce, that he was being paid HK$400 for only 20 minutes work during ordinary working hours and that both the vehicles-afforded one hundred percent concealment for their loads. He went on to admit in cross-examination that he did not do a job in such circumstances every day but had jumped at the chance of the money.

6. Expressly the judge found and directed himself that, as a result, the applicant had knowledge and believed that the goods were stolen. He was entitled so to do. As stated by James LJ in R v Griffiihs (1974) 60 Cr App Reports 14 at p18 and quoted by Lord Lane CJ in R v Moys (1984) 79 Cr App Reports 72 at p 75:

"To direct the jury that, in common sense and in law, they may find that the defendant knew or believed the goods to be stolen because he deliberately closed his eyes to the circumstances is a perfectly proper direction".

7. In the premises we do not find the judge to have erred in fixing this applicant with knowledge and belief that the goods were stolen or in finding him to have acted dishonestly. The applicant did not suggest, for example, that he was handling the goods in order to return them to their true owner. The conviction is neither unsafe nor unsatisfactory. The application for leave to appeal against it will be dismissed.

8. As to sentence and having regard to the applicant's plea of "not guilty" as compared with the pleas of "guilty" preferred by the other two effective defendants there is no such great disparity as between the treatment of the three of them as Mr Tolliday-Wright, for the applicant, contends. However, in giving very comprehensive reasons for a sentence which, in isolation, we would be disposed to uphold, the trial judge did not allude to the sentence of two years and three months which earlier he had passed on one of the other accused who was older than the applicant, had taken part in the burglary and had a singularly bad record. As against this no greater criminality crises by reason of a conviction for handling as against one for burglary. The maximum sentence for each is 14 years . But the actual role played by this applicant, who had one previous conviction, was, in our view, entirely ministerial. He was acquitted of taking part in the actual burglary and it was not suggested that he was the ultimate receiver who would distribute the goods in the appropriate market and thereby render the whole operation profitable.

9. Accordingly we think it appropriate to allow the application for leave to appeal against sentence, to treat this as the hearing of such appeal and to substitute for the sentence of 2 years' imprisonment one of 18 months.

Representation:

David Tolliday-Wright (So & Karbhari) for Applicant

M Hartmann for Crown/Respondent