The Queen v. Chan Chung Chiu

IN THE COURT OF APPEAL

No. 427 of 1987
(Criminal)

BETWEEN

THE QUEEN

and

CHAN Chung Chiu

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Coram: Hon. Si1ke, V.-P., Kempster & Hunter, JJ.A.

Date of Hearing: 13^th October 1987

Date of Judgment: 13^th October 1987

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J U D G M E N T

_______________

Kempster, J.A.:

1. On 1st September last Chan Chung-chiu was convicted by Judge Sanders, in the District Court, of handling stolen goods. Against that conviction he seeks leave to appeal and by his substituted grounds, amended in the course of the hearing, contends that the trial judge failed properly to consider "the doctrine of recent possession" or alternatively, if he did, that any such reliance was wrong in the context of the evidence adduced at the hearing.

2. The meaning of what is called "the doctrine of recent possession" was succinctly described by Goddard. LCJ in R v Cohen[1] as the possession of goods recently stolen which

"has always been held to be prima facie evidence of guilty knowledge or in other words to raise a presumption of guilt so that if no explanation is given by the receiver the jury are entitled but not compelled to convict. "

We would add that if an explanation is given by the receiver and it is found manifestly to be false then an "a fortiori" situation arises. Here in giving his reasons the judge referred in terms to the importance which the Crown attached to this doctrine and went on immediately to apply it to the facts which he found:

"It was not disputed that the Victoria Gems and Pearl Company's premises were burgled some time between 6.30 p.m. on 24th October, 1986 and 4.20 a.m. on the following morning."

Then he described the quantity of fresh-water pearls which was taken and went on:

"It was also not disputed that at about 9.30 a.m. on 27th October (that is about one and a half days later) polite officers executed a search warrant at premises on the second floor of a house in Portland Street where, in the defendant’s possession, were found 27 bags of pearls weighing 43 kilogrammes or more which had been stolen in the burglary."

3. It seems to us difficult, when those findings of admitted fact were made immediately following a reference to the importance attached by the prosecution to “the doctrine of recent possession”, to contend that the trial judge was not relying upon it.

4. Judge Sanders reminded himself of the explanation that was given by the defendant at the hearing to establish that his possession was innocent but then found him a deliberately untruthful witness who had lied in order to prevent the search by the police of the cubicle in which the stolen goods were eventually discovered. He also mentioned, which mayor may not have significance, that the applicant put a value on the stolen goods of about a third of their real value to the loser.

5. All these matters, in our view, led the judge to the conclusion that the presumption to which Goddard LCJ referred was no way rebutted. How better, it might be asked, could he have demonstrated reliance upon the relevant doctrine which has long been recognised in these courts. For example, when this very matter came before the Court of Appeal on an earlier occasion reference was made to The Queen v Chan Wing-kwan & Another[2].

6. Mr. Hemmings, for the applicant, has addressed detailed argument to us on the probabilities of guilt or innocence on the basis of the evidence recited by the trial judge. It may he that such an address was more apt for trial than for appeal but certainly he has urged on us everything that could have been advanced on the applicant's behalf. In the event, however, we are satisfied both that the judge did rely on "the doctrine of recent possession" and that in the circumstances it was neither wrong, unsafe, nor unsatisfactory so to do. We have no doubt as to the propriety of the conviction and the application for leave to appeal against it is refused.

7. Following his conviction Chan Chung-chiu was sentenced to four years imprisonment. Now that his first application has been dismissed he seeks leave to appeal against that sentence.

8. Handling stolen goods is an offence which in the High Court carries a maximum sentence of fourteen years imprisonment but when, as in this instance, such a crime is dealt with in the District Court the maximum sentence is seven years. Having regard to the terms of Section 83(I)(3) of the Criminal Procedure Ordinance it is appropriate for us to consider whether we are satisfied that be should be sentenced in some different way.

9. The grounds of appeal against sentence are expressed in these terms:

“That a sentence of four years imprisonment is manifestly excessive in regard to all the circumstances of this case.”

10. At the outset of his address to us in relation to sentence Mr. Hemmings referred to the situation which obtains in England by reason of the provisions of para. 2 of Schedule 2 of the Criminal Appeal Act 1968.

“Where a person ordered to be retried is again convicted on retrial the Court before whom he is convicted may pass in respect of the offence any sentence authorized by law not being a sentence of greater severity than that passed on the original conviction.”

11. There is no equivalent provision in any Hong Kong Ordinance. Indeed, the situation is expressly covered by Section 83f(4) of the Criminal Procedure Ordinance which reads:

“The sixth schedule shall have effect with respect to the procedure in the case of a person ordered to be retried and the sentence which may be passed if the retrial results in his conviction.”

Turning to paragraph 2(1) of that schedule we find the words:

“Where a person ordered to be retried is again convicted on retrial the Court before which he is convicted may pass in respect of the offence any sentence authorised by law”

That is a situation which was considered by this Court in March 1982 in Choi Nai-yin and The Oueen[3]. It held that if on a second trial a longer sentence were to be imposed the court would not interfere unless it thought that the second sentence was manifestly excessive. Accordingly in considering the propriety of the sentence of four years imprisonment passed on the applicant we must determine whether or not it was manifestly excessive.

12. We bear in mind the value of the stolen goods found in the possession of the applicant, being HK$151,180, and that he was a man with previous convictions for dishonesty. He was not entitled to any discount for a plea of guilty. In the premises we are unable to say that the sentence of four years passed on him was inappropriate in that it was manifestly excessive or otherwise. The application for leave to appeal against sentence is also dismissed.

John Hemmings for Applicant

E.C. Harris for Crown

[1]  [1951] 1 KB 505 at p.508

[2]  C.A. 121 1985 (Unreported)

[3]  [1982] H.K.L.R. 207