HKSAR v. Ip Wai Hong Mark

CACC 97/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 97 OF 2006

(ON APPEAL FROM DCCC NO. 1057 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore V-P, Burrell J and Lunn J in Court

Date of Hearing : 14 December 2006

Date of Judgment : 14 December 2006

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J U D G M E N T

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Hon Burrell J (giving the judgment of the Court): 

1.On 2 March 2006 the applicant, who was the 2^nd defendant at trial, was convicted in the District Court by Deputy Judge Woodcock of an offence of handling stolen goods and was sentenced to 3 years’ imprisonment.  The particulars were that he, together with his co-accused the 1^st defendant at trial, had dishonestly received a stolen motor-car on 12 July 2005 knowing or believing it to be stolen.

2.He now seeks leave to appeal against that conviction.

Facts

3.The material facts were as follows.  The motor car in question, a Toyota, had been reported stolen on 5 July 2005.  At approximately 7.30 in the evening on 12 July, one week later, the car was stopped by the police.  The 1^st defendant was the driver and the applicant was sitting in the front passenger seat.

4.At the time of arrest the 1^st defendant made an admission.  The applicant however denied knowing or believing the car was a stolen vehicle.  He told the police he had asked the driver who he knew for a lift to Mei Foo to look for his girlfriend.  This was confirmed by the 1^st defendant.  When interviewed at the Police Station, the applicant remained silent.

5.The applicant was in possession at the time of arrest of five mobile phones and a pair of gloves.  The vehicle had been tampered with between 5 July and 12 July.  The only other evidence of any significance was the fact that one to two hours before the car had been stolen on 5 July, the applicant and the 1^st defendant had been conversing through mobile phones.

6.The applicant elected not to give evidence at trial.

7.After a detailed rehearsal of the facts of the case and an accurate recital of the ingredients of the offence of handling by receiving and a correct resume of the doctrine of recent possession, the judge when explaining her reasons for convicting the applicant said as follows:

“26. I turn to the 2^nd defendant.  He made no admission under caution.  Instead, his explanation tried to point to his ignorance that the vehicle was stolen.  I have considered all the circumstantial evidence against him and the doctrine of recent possession.  I have considered whether it, altogether, is sufficient to draw an irresistible inference of knowledge or belief.  The 2^nd defendant elected not to give evidence but the 1^st defendant gave evidence of under what circumstances the 2^nd defendant ended up in this vehicle.  I rejected the 1^st defendant’s evidence.  Clearly it was a fabrication to try and explain away their respective positions in relation to the stolen vehicle.  I find the fact that they were in possession of the vehicle only one week after it was stolen recent enough to apply the doctrine of recent possession.  I can infer guilty knowledge or belief if I am satisfied the explanation offered is untrue and I have found it to be untrue.  In addition, there is no credible explanation as to why the 2^nd defendant, as a passenger, wore gloves in July as I found he did.

27. I have considered the evidence of the five phone calls made between the 1^st defendant and the telephone found in the possession of the 2^nd defendant.  The phone calls could be entirely innocent.  There is no explanation as to these phone calls.  They could be for any reason; they are not proof of any involvement in the theft.  However, when considered together with the evidence of the gloves and bogus explanation they do create suspicion.  Alone they prove nothing but when part of the overall picture they could point to involvement and knowledge.  However, in view of the doctrine of recent possession and the other circumstantial evidence, even without this phone record, I would have drawn the same inference.  I found there was sufficient evidence for the prosecution to prove this irresistible inference that the 2^nd defendant had dishonest knowledge that the vehicle was stolen.”

8.The evidence had to prove firstly that the applicant was in possession of the car at the time of arrest.  In the particular circumstances of the case the ingredient of “receiving” could only be satisfied by proof of possession or control of the car.  If possession or control is proved, it is then necessary to prove that the applicant knew or believed it was stolen.

9.Taking the facts as found by the judge, we are of the opinion that the element of possession or control had not been proved.  The evidence relating to gloves, the possession of and use of mobile phones, the explanation given at the time (described by the judge as “bogus”) and the doctrine of recent possession all, if admissible, go to the issue of knowledge and belief.

10.The preliminary question is - by sitting in the passenger seat and no more, was he in possession or control of the car?  Was there admissible evidence of him being in custody and control of the vehicle?  We find that there was none.  The judge earlier in her reasons had said correctly,

“The prosecution must prove the defendants received the vehicle knowing or believing it was stolen…”

but then added, incorrectly,

“…but the fact they were in the vehicle being driven by the 1^st defendant is enough to establish it was received and both were at that moment in control of it.”

Unfortunately, the entirety of the judge’s reasons insofar as they relate to this applicant deals solely with the evidence in support of knowledge and belief.  They do not elaborate on what basis the element of possession had been proved. 

11.Indeed even if the 2^nd defendant had admitted knowing the vehicle had been stolen, there would have been insufficient evidence of him dishonestly receiving it.

12.On the evidence before the court and on the facts as found by the judge, the applicant was plainly guilty of allowing himself to be carried in a vehicle taken without the owner’s consent, contrary to section 14(1) of the Theft Ordinance.  However, such a charge was not laid so that this court is not permitted to substitute it as it would have been entitled to do, if this alternative had been charged and ordered by the judge to lie on the file.  In truth it was the only charge which could have been laid against this applicant.

13.Very properly, the respondent does not seek to support this conviction.  Also, very properly they did not oppose an application for bail pending appeal which was granted by this court on 7 September 2006.

14.We grant the application for leave to appeal, treat it as the hearing of the appeal, we quash the conviction and set aside the sentence that was imposed for it.

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr Andrew Raffell, instructed by Messrs Boase Cohen & Collins, for the Applicant