Chan Kam-san v. The Queen
|
CACC000698/1979
----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 2 January 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. We allowed this appeal and said that we would give our reasons later. We now do so. 2. The charge was one of handling stolen goods and the question was whether there was sufficient evidence of the Appellant's knowledge and belief that they were stolen. He was admittedly in possession of the goods within a few hours of the robbery in the course of which the goods had been stolen. His explanation was that a friend called Cheung Man had sold them to him and he said that they were "shui for" or "water goods", i.e. branded goods imported into Hong Kong by a person other than the dealer who has been given a sole agency in respect of the importation and sale of those goods. Evidence was before the court to the effect that this malpractice was common. 3. The finding of the learned judge as to knowledge or belief was contained in a paragraph which reads as follows:
The first sentence of this passage is not clear. Possibly it was not accurately transcribed, but the judge appears to have accepted it as accurate and, as it stands, it is ambiguous. 4. What is of greater significance is that the passage contains the statement that the goods were delivered "in the middle of the night", a factor which not surprisingly weighed heavily with the learned judge. There was, indeed, evidence before him that the delivery had been at "3.55 hours", but this was a mistranslation in a document for "3.55 o'clock". It is now conceded by counsel for the Crown that there was no evidence which established that the delivery was at night rather than in the afternoon, although no objection had been taken when, in his address to judge, counsel for the prosecution had referred to the time as "3.55 a.m.". It thus seems that both counsel for the prosecution and the judge were misled. 5. In his judgment the judge makes no mention of the doctrine of recent possession, although in finding that the Appellant "did believe that the goods were stolen" he may have taken the view that an explanation of the Appellant's possession was called for and that he did not believe the explanation given. However, the passage cited suggests that his approach was rather that because the Appellant deliberately shut his eyes to the circumstances he must have believed that they were stolen. When one discounts the finding that the delivery was in the middle of the night we think that the circumstances were not such as to warrant the conclusion that the Appellant must have known the goods were stolen and we suspect that the judge would probably have taken the same view. Had he clearly relied upon the doctrine of recent possession and then said that he did not believe the explanation because it was contained only in a statement to the police and was not supported by sworn testimony from the Appellant, we would still have been left in doubt as to the extent to which his decision was affected by the misleading evidence as to the time of delivery of the goods. 6. It may be added that Cheung Man was not called by the prosecution, or, indeed, by the defence. Evidence was given by the police that he contacted the Appellant by means of a paging machine after the Appellant's arrest and that two meetings were arranged with him. However, he did not keep the appointments. Further efforts to find him failed. Reliance was placed on Reg. v Crowhurst (1844) 1 Car. & K. 370, where it was held that it was incumbent on the prosecution to negative a not improbable explanation advanced by the defendant to the police and that, as the police had not investigated the story put forward, the jury ought not to be satisfied that it was untrue. Although there is a distinction between that case and the present in that Cheung Man was clearly unwilling to come and support the Appellant's story, whereas the whereabouts as well as the name of the person said to have sold the wood to the prisoner in Reg. v Crowhurst were known and no cheque was made with him, that distinction is not material: we still have here a case where the alleged source of the goods was a person known to be a real person, who might in truth have sold the goods to the Appellant in the manner suggested. However suspicious we may be that the explanation was false, it was not possible on the evidence to be satisfied beyond all reasonable doubt that it was false. 7. We came to the conclusion that the verdict was unsafe and that the appeal should be allowed. 2nd January 1980. |