HKSAR v. Choi Heung Yee

[English Translation – 英譯本]
CACC 368/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 368 OF 1998

(ON APPEAL FROM DCCC NO. 426 OF 1998)

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BETWEEN

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Before: Hon Chan CJHC, Liu and Leong JJA in Court

Date of Hearing: 12 March 1999

Date of Judgment: 19 April 1999

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JUDGMENT

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Hon Chan CJHC (giving the judgment of the Court):

1. After trial by Deputy Judge Fung (as he then was) of the District Court, the Applicant was convicted with one count of handling stolen goods.  The Applicant now applies for leave to appeal against conviction.

2. The prosecution case was that a flat in Mayfair Gardens, Tsing Yi was burgled on 23 January 1998, and among the properties stolen from the owner was a Rolex wristwatch for men.  Two days later, the Applicant, using his own identity card, pawned that wristwatch at “Hop Fat Pawnshop”.  In the records kept by the proprietor of that pawnshop, the Applicant’s residential address appeared as Room 1813, Hong Foo House, Cheung Hong Estate, but in fact he resided at Room 813.  The Applicant was subsequently arrested and charged with handling stolen goods and furnishing an incorrect address to a pawnbroker.  After trial, the Applicant was acquitted of the second charge.

3. In the course of giving evidence at trial, the Applicant admitted that it was he who pawned the wristwatch, but claimed that he did so upon the request of Chan Wai Shun, the first defendant (D1).  The Applicant and D1 had known each other for 7 years and D1 had assisted him in finding a job.  The Applicant said that D1 had seen him pawn articles at pawnshops, and therefore, on 25 January 1998, D1 requested the Applicant to take him to Shamshuipo to pawn an article.  They went to “Yau Lee Pawnshop”.  D1 entered the pawnshop but returned after a short while, telling the Applicant that the pawnshop refused to accept the wristwatch.  The Applicant asked D1 whether the wristwatch was fake, and D1 answered in the negative, saying he bought it for $18,000.  The Applicant then took the wristwatch to another pawnshop to make enquiries and was informed that he could obtain $7,000 by pawning the wristwatch.  He then relayed this information to D1.  However, D1 then told him that he did not pawn the wristwatch at “Yau Lee Pawnshop” solely because he had borrowed more than $100,000 from a finance company to run smuggling business and bought the wristwatch thereafter, that the loan had now been exhausted and he was unable to make repayment, and that he dared not pawn the wristwatch for fear that the finance company would find this out.  D1 also requested the Applicant to pawn the wristwatch on his behalf.  The Applicant then pawned the wristwatch at “Hop Fat Pawnshop” and obtained $10,000, and then handed all this money to D1.  As the Applicant had driven D1 around in his goods vehicle previously and on that day, D1 gave him $400 as transportation expenses.

4. The trial judge considered the Applicant’s evidence as aforesaid seriously contradictory and set out a number of reasons for not believing his evidence.  Taking into account the fact that the wristwatch was with the Applicant and was pawned merely two days after it was stolen, and applying the doctrine of “recent possession”, the trial judge inferred beyond reasonable doubt that the Applicant knew or believed that the wristwatch was stolen property, and therefore convicted him of the offence.

5. Counsel for the Applicant points out that the trial judge refused to accept the Applicant’s defence on the ground that his evidence was seriously contradictory.  Counsel contends that those contradictions were in fact unfounded; and that the judge applied the doctrine of “recent possession” and made inferences because he did not accept the Applicant’s evidence.  The Applicant’s defence was, Counsel submits, reasonable and understandable.

6. With respect, the reasons given by the trial judge for saying that the Applicant’s evidence was contradictory were, in our view, very much open to challenge.

7. First, the Applicant said that D1 had previously entered “ Yau Lee Pawnshop” by himself in an attempt to pawn the wristwatch but later told the Applicant that he had not pawned the wristwatch because he was still indebted to the finance company and he feared that the company would seek recovery of the money if it knew he had a valuable watch.  The trial judge considered this to be contradictory.

8. It is true that D1 could have requested the Applicant to pawn the wristwatch on his behalf at the very beginning and did not have to take such a convoluted route as the Applicant described, and therefore the trial judge’s suspicion that the Applicant was lying was not completely misconceived.  However, as Counsel has pointed out, the Applicant merely said that he saw D1 enter “Yau Lee Pawnshop” and the two of them did not enter the pawnshop together, and so the Applicant could not possibly know whether D1 did attempt to pawn the wristwatch.  The trial judge could of course refuse to believe that D1 had said the above words, but the judge should not have concluded that the Applicant’s evidence was contradictory on the ground that what D1 told the Applicant as described by him was unreasonable.  The Applicant merely told the court that D1 at first said he wanted to go to a pawnshop to pawn something and that he was inside a pawnshop for a short while.  As for what D1 told the Applicant afterwards, namely that he had in fact not attempted to pawn the wristwatch, it could only serve to show the unreliability of what D1 said.  The Applicant was merely recounting D1’s conduct as he saw it and what D1 told him at the material time.  D1’s statement that he dared not pawn the wristwatch by himself for fear of recovery action by his creditor was an excuse put forward by D1; if there was any contradiction, it lay in what D1 said.  The trial judge should not have taken this as the basis of any inference that the Applicant’s evidence was incredible.

9. Second, the Applicant mentioned that, after the wristwatch was pawned, he received $400 from D1 as transportation remuneration, but the Applicant’s business record (Exhibit D4) did not show any entry for this income.  On this basis, the trial judge regarded the Applicant’s evidence as incredible.  Counsel for the Applicant submits that the judge should not have cast doubts on the Applicant’s evidence purely by reason of the absence of an entry for $400 in the Applicant’s business record.  We agree.  On the Applicant’s evidence, on the night in question he drove D1 to have the wristwatch pawned and he had never intended to receive any transportation fee from D1.  Further, the $400 given to him by D1 was also on account of the fact that the Applicant had previously driven D1 to other places, and so it is difficult to say that this sum of money specifically represented the fee for driving D1 to the pawnshop on the material night.  The money was given after the event, so it is not surprising that there was no record of it in the Applicant’s business book.  As Counsel has pointed out, Exhibit D4 was produced by the Applicant of his own accord, and if he were truly faint-hearted as a thief, he would not have seen fit to tell the court that he had received $400 and then voluntarily produced a record that did not register that income.

10. The trial judge stated that, in view of the Applicant’s statement that he had never seen D1 wear that Rolex wristwatch and the fact that D1 was only a transportation worker and part-time waiter, there was reason to doubt the veracity of the Applicant’s claim that D1 requested him to pawn the Rolex wristwatch.  Counsel for the Applicant points out that the wristwatch in question was merely an ordinary model, and whether a common worker had the means to buy it was a question that allowed for different views.  Furthermore, on the Applicant’s evidence, D1 had admitted that he ran a smuggling business and had borrowed from a finance company, and so there was nothing surprising in D1 being able to buy a Rolex wristwatch for men.  The Applicant did not meet D1 frequently and therefore did not notice whether D1 was wearing a Rolex wristwatch.  This did not necessarily mean that the Applicant was lying.

11. The trial judge pointed out that the Applicant said D1 loved branded products but was unable to specify what those brands were, and therefore the Applicant was making up facts.  The judge suspected that the Applicant fabricated a story as he was giving evidence.  We see nothing unusual about the Applicant not being able to specify any brand name.  When he said that D1 often used branded products, he might only be suggesting that D1 often “dressed in gold and put on silver”, which means that he often carried valuable items with him.  Therefore, if the Applicant himself did not frequently put on or use branded products, he could not be faulted for being unable to specify the names of those brands.

12. It can be seen from the above that there are reasons to believe that the trial judge was influenced by the various erroneous observations to decide to reject the Applicant’s evidence.  As for the use of the doctrine “recent possession” in making inferences, this question cannot in our view be dealt with in vacuum, but must instead be looked at in light of the circumstances of the case.  The doctrine of “recent possession” is merely a principle concerning how a judge or jury makes inferences from facts.  It means that, where there are reasons for casting doubt or where there is a need for an explanation, if a defendant has not provided an explanation or has provided an explanation which is wholly unbelievable, the judge or jury may infer from the lack of a credible explanation that the defendant had knowledge of the offence in question and may then infer from this that he is guilty.  It can be seen that the doctrine of “recent possession” is only part of a broader issue, which is that, although the judge or jury may make a rebuttable presumption from the facts, in the end they still have to be satisfied beyond any doubt that the defendant knew or believed that he was possessing stolen goods.

13. In the present case, the trial judge did not accept the Applicant’s evidence, and therefore she relied on the doctrine of “recent possession” and inferred that the Applicant must have known or at least suspected that the Rolex wristwatch in question was stolen property, and on this basis convicted the Applicant.  In the given circumstances, it was unreasonable and inappropriate to make inferences in reliance of the above doctrine.  Since the reasons put forward by the judge for disbelieving the Applicant’s evidence were not entirely satisfactory, there was nothing to support the conclusion that the Applicant had failed to provide an explanation or had provided an explanation which was wholly unbelievable.  

14. For the above reasons, we take the view that there are lurking doubts about the trial judge’s verdict and hence it cannot be regarded as safe and satisfactory.  Accordingly, the verdict of guilty must be set aside.  The Applicant’s appeal is allowed and he is acquitted.

Mr Walter Lau, assigned by the Legal Aid Department, for the Applicant.

Mr Francis Lo, Senior Assistant Director of Public Prosecutions, for the Respondent.

Translated by Mr. Edmund Cham, Solicitor