Wong Yu-choi v. The Queen

CACC000583/1983

BETWEEN

Coram: Jones J.

Date: 20th July, 1983.

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JUDGMENT

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1. On the 23rd March 1983 the appellant a police officer was convicted of one charge of theft contrary to Section 9 of the Theft Ordinance and one charge of taking a conveyance without authority contrary to Section 14(1) of the same ordinance. He was sentenced on each charge" to a term of imprisonment for twelve months to he concurrent.

2. The appellant appeals against his conviction and sentence.

3. The notice of appeal was filed on. the 30th March 1983, and the appeal came before Macdougall J. on the 6th June 1983. However, the appeal could not be heard as the learned magistrate's statement of findings had not been prepared. In fact they were not ready until the 21st June 1983 although in accordance with Section 114(b) of the Magistrates Ordinance Cap. 227 they should have been served within 15 days after the day on which the notice of appeal was given. No reasons were given for this delay.

4. The following facts were not in dispute:

5. The appellant gave evidence that he purchased a car registered number CC 6905 on the 20th November 1982 for $23,000 from Man Wai Motors of G/F., 107 Austin Road, Kowloon. He produced the name card of the salesman Chan Sun-cheung who dealt with the transaction, a receipt for $3,000 being the down payment and an invoice of Man Wai Motors. The appellant agreed that he drove the car on the 6th and 13th November 1983 for the purpose of testing. It is not in dispute that at the material time, no company by the name Man Wai Motors carried on business at 107 Austin Road, G/F.

6. The learned magistrate disbelieved the evidence of the appellant describing him as a glib and accomplished liar. He also found that the invoice was not a genuine record of the transaction.

7. Although the learned magistrate refers in his Statement of Findings to the onus and burden of proof, in paragraph 10, he states:-

"In reaching these conclusions I bore in mind that the Appellant having been found in possession of a stolen motor car and a stolen Motor Vehicles Licence I had to consider whether or not his connection with them was an innocent one. If I were to believe the explanation given by the Appellant then I should be satisfied that he had bought the stolen car, which bore the stolen Motor Vehicles Licence, in good faith not knowing that it had been stolen."

8. Quite clearly the learned magistrate adopted the wrong approach for he was casting an onus upon the appellant. With regard to the licence, it was for the Crown to prove that the appellant knew or believed that it was stolen at the time he acquired it or subsequently appropriated it knowing or believing it to have been stolen. The learned magistrate based his conviction on the charge of theft of the licence on the ground that the appellant had told lies to account for his possession because he knew it was stolen. However, in the course of his evidence the appellant made no reference to nor was he asked any question about the licence. There was in fact no evidence before the learned magistrate to substantiate the conviction for theft.

9. With regard to the charge of taking a conveyance without authority it was for the Crown to prove that the appellant did not have the relevant belief that he had lawful authority R. v. MacPherson ^(1).

10. The appellant's defence was that he had, been-duped by a dishonest motor car dealer, but the learned magistrate has not adverted to this as a possibility in his findings. Instead he sets out details of remarkable coincidences as follows:-

"(1)      On the 2nd July 1982 the car which is the subject of charge (B) was stolen from P.W.3.

(2)      Also on the 2nd July 1982 the Motor Vehicles Licence, the subject of charge (A), was stolen from a car of similar make, model and colour belonging to P.W.2.

(3)     On the 8th October 1982, by a strange quirk of fate, P.W.2 saw the stolen car on the Tun Mun highway displaying number plates bearing the registered number of his own car from which the licence had been stolen over three months before.

(4)    Shortly thereafter R.W.2 reported the matter to a policeman, P.W.4.

(5)    By yet another quirk of fate P.W.4 saw the stolen car parked outside the Hop Yick Shopping Arcade at Yuen Long on 23rd November 1982, about to be driven away by the Appellant.

(6)    P.W.4 said in evidence that he told the Appellant he was going to arrest him and that the Appellant said words to the effect of 'I know what is the matter, please give me a chance'. and P.W.5 in his evidence confirmed this.

(7)    The Appellant said in evidence, however, that on being told by P.W.4 that the car was a stolen car he immediately told P.W.4 that he had bought it from a motor company and that P.W.4 replied that there was no need for him to say anything then and advised him if he really bought the car to bring the receipt and other documents to Court and explain this to the judge.

(8)    P.W.4 stoutly denied that the Appellant said anything at all about having bought the car and though the question was not put expressly to P.W.5 he said that the Appellant said nothing further than the words he, P.W.5 had told the Court."

11. Apart from the fact that the appellant was about to drive the car on the 23rd November 1982 there was no connection between the appellant and the vehicle in any of these coincidences.

12. As the car had apparently been parked `illegally the appellant's comments about being given a chance do not lead to the irresistible inference that he had committed the offence charged. He could as easily have been concerned about receiving a parking ticket. The learned magistrate also drew unfavourable inferences against the appellant for his delay in producing the documents apparently overlooking the fact that it was not for the appellant to prove his innocence. A peripheral matter that appears to have influenced the learned magistrate was the evidence given by P.W.6 with regard to a demand for money. This evidence apart from being prejudicial did not in any way establish the appellant's guilt.

13. In the matter of drawing inferences I pray in aid the words of Huggins J. as he then was in Chan Yuet Kwan and Chan Yiu Kuen v. R. ⁽²⁾:

"An inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts. Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be drawn from the facts on which it is based is one of guilt, for where primary facts admit of two inferences one of guilt and one of innocence, they can give rise to no more than suspicion and if suspicion be added to suspicion the total can be no more than suspicion."

14. All that the Crown's evidence pointed to was that the appellant was seen to drive a car that had been stolen four months earlier, and that documents evidencing a sale to the appellant were found to be forged. No reasons were given by the learned magistrate to support his conclusion that the transaction was not genuine no did he consider the appellant's state of mind that he might have believed the transaction to be genuine. The mere fact that the appellant told lies in the witness box does not amount to proof of anything. Although the circumstances in this case clearly aroused suspicion suspicion is not sufficient to justify the appellant's conviction.  The conviction on the second charge was unsafe and unsatisfactory.

15. Accordingly, the appeal is allowed, the convictions will be quashed and the sentences set aside.

(1)    (1973) R.T.R. 157

(2)    C.A. 212/73

Representation:

Mr. D. MacKenzie-Ross (Kwan and Kwan) for Appellant.

Mr. M.F. McClelland (Legal Department) for Crown/Respondent.