Lam Kai Wai v. The Queen

CACC000074/1982

Appeal against conviction for theft - conviction based on recent possession - explanation of appellant not believed by convicting magistrate - stolen items found on appellant consisting of 2 cheques and a bank card - the two cheques bore Chinese characters - no translation of cheques exhibited before magistrate - translations tending to support appellant's explanation for his possession of them - whether conviction unsafe - whether alternative verdict of handling stolen property should have been considered by magistrate - whether circumstances justify new trial

BETWEEN

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Coram: Hooper, J.

Date: 23 February 1982

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J U D G M E N T

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1. The appellant appealed against a conviction in the Juvenile Court at San Po Kong in respect of a charge of theft. I gave oral judgment in court and indicated that I would give more detailed reasons for judgment later. I now do so.

2. The appellant was charged that he together with two other persons, LEE Kan-chai and LO Ngai-hang, on the 20th of October 1981, at San Shan Road near Tokwawan Road, Kowloon, in this Colony, did steal from a goods van, registration number CN-4655, a Hang Seng card, two cheque books, a RHKJC telebet card, an iron trolley, 15 numbers of casette tapes, 3 spanners, 2 screw-drivers, 1 pair of pliers, 1 tire-lock driver, 2 admission tickets of Ocean Park, a Thai buddha statue, and a key-holder, the property of CHAN Ngok-sing.

3. There was no direct evidence that anybody saw the appellant commit this theft, but the magistrate relied on the doctrine of recent possession to convict the appellant, having rejected the appellant's explanation for being in possession of two cheques and a Hang Seng Bank card.

4. In doing so the learned magistrate relied upon the evidence of two witnesses, P.C. 22550 of the Royal Hong Kong Police Force, (the third prosecution witness) and Mr. CHAN Ngok-sing, (the fourth prosecution witness) the gentleman to whom the stolen property was said to belong.

5. The relevant part of the Statement of Findings of the learned magistrate are set out as follows :-

"(5) The third prosecution witness - P.C. 22550 YEUNG Kai-kong gave evidence as follows :

At 4.35 a.m. on the 20th October, 1981 he was on duty patrolling in a police car when the Appellant and his two co-defendants were seen walking very quickly. They were stopped for questioning by the witness and his colleagues; the witness searched the Appellant and from his pocket found two cheques and a Hang Seng Bank Card in the name of CHAN Ngok-sing. When asked how he came to have the items in question he said he found them.

(6) The fourth prosecution witness was the loser, CHAN Ngok-sing. He testified that he had locked up his van at 9.30 p.m. on the 19th October, 1981 when he returned to it at 5.30 a.m. the following morning he found the window of the van broken, the van ransacked and property missing. He identified the exhibits in Court which included the two cheques and a Hang Seng Card as his property which had been in the van. The two cheques had been torn out of the cheque book. His purported signatures on the cheques were forgeries.

(7) The Appellant elected to give evidence. He testified that he left his house at about 10 p.m. on the day in question and had gone to 'a midnight movie' with two friends who were not his co-defendants. They then went to an American Steak House in Tsim Sha Tsui and there when Lo and his friend (the co-defendants) came in. The five of them took a taxi to Tokwawan where Lo (D3) suggested that the Appellant and his friends await them at a cooked food store while he and his companion (D2) went to the lavatory at Kowloon City Ferry Pier. When Lo (D3) returned he was holding 'a bunch of things' and 'doodling'.

The Appellant asked what he was writing and Lo said a cheque. He told the Appellant he would show him where he had found it (them). On their way they were stopped by the police. The Appellant said he explained to the police that the papers had been given to him by Lo.

(8) In the course of cross-examination the Appellant said he thought the Defendants were only playing when writing on cheques, he did not know the cheques had been stolen.

(9) The Appellant called a witness called Yu who testified that he had accompanied him to the cinema and had later in the evening seen two persons give the Appellant a bunch of paper. They had spoken to the Appellant in low voices but he heard them say the papers had been found. He had seen the police take the Appellant to a side lane.

(10) Having seen and heard the witnesses for the prosecution I accepted their evidence, and accepted that when questioned by P.C. Yeung the Appellant had given two contradictory accounts of how he came to have the stolen cheques in his possession. I also accepted that the items were in his pocket, not his hand.

(11) Having seen and heard the Appellant I was sure he was lying when he gave his account of how he came to have the cheques and cheque card in his possession. I found his story totally unconvincing.

The evidence of the Appellant's witness was equally unconvincing by reason both of its fragmentary nature, its content and the manner in which it was given.

(12) The victim's evidence as to the breaking in of his van and the theft of his property was not challenged. The theft had occurred between 9.30 p.m. on the 19th October and 4.35 a.m. the following morning.

(13) The Appellant was in possession of the relevant items not more than six hours after the theft had taken place. Having heard and considered all the evidence including that of the Appellant and his witness I was driven to the inevitable inclusion that the Appellant had himself stolen the items in question and was satisfied that the charge was proved beyond reasonable doubt.

So far as the law is concerned I considered by view to be consonant in legal principle with that laid down in R. v. Loughlin 35 Cr. App. R. 69."

6. There were a number of grounds of appeal, but for the purposes of this judgment I can limit myself to the fifth ground that in all the circumstances of the case the conviction was unsafe and unsatisfactory.

7. Mr. Suffiad who conducted the appeal on behalf of the appellant, drew my attention to the fact that there had never been before the magistrate a translation of the Chinese characters appearing on the cheques. He had since applied to the Crown for translations and had been supplied with them.

8. Those translations are in the following terms :

"(TRANSLATION OF HANG SENG BANK)

CHEQUE NO. 1PC 952898

CH No.     1PC 952898          DATES: 19.10.1981.

PAY     FEI CHAI KWOK. FEI CHAI SANG

HONG KONG DOLLARS

One Dollar Big Dollar Big Dollar            $1000.00

This cheque may be presented for  Payment at
the Bank's head office, Hong Kong.                          "

"(TRANSLATION OF HANG SENG BANK)

CHEQUE NO. 1PC 952893

CH No. 1PC 952893          Date

PAY     KWOK Moon-chai

HONG KONG  DOLLARS

One Hundred Dollars only.      $100.00

Signed (Illegible)"

9. Mr. Suffiad referred me to the case of Millington⁽¹⁾ and in particular to a passage in the judgment of Ridley, J., as follows :

"A more substantial matter seems to us that in directing the jury the Chairman does not get at a proper view of the facts. The value of the property was only threepence, and a very different state of things arises from that where the property is of great value. The proper direction would have been that in judging the excuse the jury must consider the value of the article, and that it was not necessary, having regard to the value of the article in this case, to laugh at the story told by the appellant. They should also have been told to pay regard to the fact that none of the rest of the stolen property was found in his possession. The Chairman said that the story told by the appellant was immaterial; we do not think that that is the correct view."

10. Mr. Suffiad submitted that the translation of the Chinese characters on the cheques tended to support the appellant's explanation that whoever had written those characters was fooling around. On the contrary, he submitted the magistrate took the view that the circumstances were more serious than they actually were and assumed that there had been a forgery of the victim's signature on the cheques. However, he pointed out there was no evidence that there was any imitation of Mr. Chan's signature, because the evidence was that Mr. Chan simply denied that it was his signature thereon. Mr. Suffiad submitted that had the learned magistrate had the advantage of seeing the translations, she might well have come to a completely different finding than she did. It might have resulted in her either believing the appellant's explanation given in his evidence and under cross-examination or at the very least it might have raised a doubt in her mind as to whether the charge had been proved against the appellant beyond reasonable doubt. There were only these two cheques found in his pocket not; the whole cheque book. This, he submitted, was consonant with the fact that somebody gave these cheques to the appellant. If he had stolen the cheque book himself, it would be inconceivable that he would have drawn cheques like that, which were of no value, and would give the cheque book away. Mr. Suffiad submitted that the writings on the cheques would clearly negative dishonesty on the part of the appellant. No person in his right mind would think of receiving a cheque in that way other than as a plaything.

11. Mr. Upchurch for the Crown who came to court prepared to support the conviction, admitted that he found himself in difficulties having seen the translations of the cheques, because he could not say what sort of effect they would have had on the mind of the learned magistrate. If the magistrate had had the benefit of looking at these translations, he wondered if that would have changed her mind at all. He conceded that it was to a certain degree consistent with the appellant's story. In all the circumstances he felt that the interests of justice required that the conviction be set aside and a new trial ordered.

12. I agree with counsel in this matter that it was clear that in the absence of certified translations of the cheques, the magistrate was deprived of a piece of evidence which tended to support the appellant's story or explanation. It may be that such evidence would not have made a great deal of difference to her conclusions on the facts. On the other hand, it may have made a considerable amount of difference as it did tend to support the defendant's explanation. In a case such as this where so much depended upon inference, it may well have resulted in her having a doubt as to whether she should draw the inference of guilt.

13. In the course of argument I was also referred to a number of cases in addition to Loughlin's case which are set out in paragraph 1496 of the 40th Edition of Archbold. It was submitted to me that the magistrate should have considered an alternative verdict of receiving stolen property.

14. Without having to decide this matter I would merely point out that all the authorities referred to in that paragraph relate to the law as it existed before the Theft Act came into force in 1968. Our Theft Ordinance, of course, follows the Theft Act of 1968 and it would appear that different considerations may now apply such as whether theft is a continuing offence. Furthermore, a receiver of stolen goods in the majority of cases will now be liable to conviction for theft since a dishonest receiving will in the majority of cases amount to a dishonest appropriation. See R. v. Sainthouse⁽²⁾; Pitham and Hehl⁽³⁾ and Stapylton v. O'Callaghan⁽⁴⁾.

15. On the question of whether a new trial should be ordered, Mr. Upchurch for the Crown referred me to the case of NG Yuk-kin⁽⁵⁾ in which it was held :

"Where a conviction has to be quashed on account of the non-observance of some essential technicality in connection with the trial, and the seriousness of the offence is great, and the interests of justice demand it, a new trial should be ordered under section 82(3) of the Criminal Procedure Ordinance.

The power of ordering a re-trial should be exercised sparingly."

He also referred me to AU Pui-kuen⁽⁶⁾ in which Huggins, J.A., as he then was, said :

"The true principle is that the court will not order a new trial where a conviction is improbable or where a conviction will, assuming the same evidence is given, be unsafe or unsatisfactory."

He also referred me to a recent appeal, Criminal Appeal No. 1029 of 1981 LAI Kwok-fai v. The Queen where Addison, J., with the agreement of both counsel ordered that a new trial take place before a different magistrate. His only reason for referring to this was that the conviction was in respect of a comparatively minor case of theft, where the allegation was that the appellant had stolen seven cartons of cigarettes from the Wellcome Supermarket and where he had been fined $500. In that case there was a notice of motion asking the court to hear evidence which was not otherwise available at the time of the trial. It was agreed that that evidence could not have been made available to the appellant at the time of his trial. It was also conceded that the additional evidence could have a material bearing on the ultimate decision of the case which would depend on the issue of credibility.

16. That case is not on all fours with the present case but Mr. Upchurch sought assistance from it to show that a re-trial would be ordered in a case which was even less serious than the present. Mr. Upchurch suggested that the present case was a borderline case and that it fell just on the side of a re-trial.

17. Mr. Suffiad in urging the court not to order a new trial suggested that it was the fault of the prosecution that certified translations had not been tendered in evidence at the same time as the cheques. It was not the fault of this appellant. Neither was it a technicality. If such certified translations had been tendered, then it was Mr. Suffiad's contention that a conviction based upon the doctrine of recent possession would have been unsafe because that evidence tended to support the accused's explanation for his possession of those cheques. Indeed he went so far as to say that it completely negatived dishonesty. Mr. Suffiad relied upon the principle enunciated by Huggins, J.A., as he then was in AU Pui-kuen's case.

Of course, each case must depend upon its own facts. I was of the opinion having regard to the age of the appellant, the fact that he had been through a full trial in the Juvenile Court and he had been through an appeal in this court with all the costs of legal representation in both courts, the fact that the omission to supply translations was an omission on the part of the prosecution, the value of the articles found in his possession, the fact that he had already served more than two months of his sentence, the likelihood or otherwise of a conviction should a new trial be ordered, that in the circumstances of this case it would not have been in the interests of justice to order the appellant to go through another trial. In the circumstances, I exercised my discretion by not ordering a retrial.

(1) (1915) Cr. App. R. 86

(2) [1980] Crim. L. R. 506

(3) [1976] 65 Crim. App. R. 45

(4) [1973] 2 All E.R. 782 DC

(5) (1955) 39 H.K.L.R. 49

(6) (1977) H.K.L.R. 98, 99 (C.A.)

Representation:

Mr. A. R. Suffiad (Woo & Woo) for appellant

Mr. J. Upchurch, Crown Counsel, for respondent/Crown