Tang Chi Kin v. The Queen

CACC000851/1978

Coram: Zimmern, J.

Date of Judgment: 1st November, 1978.

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JUDGMENT

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1. The appellant before the magistrate was charged with and convicted of three charges namely

and he appeals against conviction and sentence.

2. On the D charge of possession Crown Counsel conceded at the outset that the conviction could not be supported.

3. It was decided in England as long age as 1866 that the English equivalent of this section i.e. Section 24 of the Metropolitan Police Courts Act 1839 applies only to things in transit and not to their possession in a house (Hadley v. Perks)⁽¹⁾. A year later it was again decided the section does not apply to goods in stores but only to goods on persons in the street (R. v. Whitley) ⁽²⁾. In Flatman v. Light⁽³⁾ Lord Goddard C.J. said of the section:

"This is a section applicable in the Metropolis and there are similar sections operative in some of the larger cities to provide for this class of case. A man is found in very suspicious circumstances in possession of property. He can be called upon to give an account of how he got it. If the police or whoever started the prosecution were satisfied that it was stolen and could show it was stolen there would be no need for this section. It is designed to cover cases where it is impossible to show at the time of the man's arrest that the property is stolen. It is not necessary to show that it is stolen, because the section deals with property which is "reasonably suspected of being stolen or unlawfully obtained". If that is so a man can be brought before the magistrate and dealt with under this section."

I respectfully agree with the words of Lord Goddard. At the time of the appellant's arrest he was not in possession of the camera. It had been in a pawn shop for over a month. The charge was ill conceived and the appellant was wrongly convicted. The conviction is quashed and the penalty imposed set aside.

4. On the E charge of failing to give a pawnbroker his true home address, the pawnbroker in his evidence said he had asked the appellant for identification when the latter applied for the loan against the pledge of the camera.

"Tang Chi Kin was his name. I asked him his address and he said he lived at Room 307 Block 37 Kwai Chung Estate. I have the record I made at the time with me here. (Looks at paper with court's permission). I see he said Room 216, Block 37, Kwai Chung Estate."

When cross-examined he refused to admit that he might have inadvertently made a mistake and written 37 for 38. The magistrate had admitted a hotly disputed statement alleged to have been voluntarily made by the appellant. Part of the statement reads:

"Because I was afraid of being found out by people I therefore reported false address. I actually live at No. 216 Block 38 Kwai Chung Estate 2nd floor."

The appellant said he gave the pawnbroker his true address which was Kwai Chung Estate Block 38, No. 216 2nd floor. He also showed the pawnbroker his driving licence number which was recorded. The pawnbroker admitted in cross-examination that he had recorded the No. C. 268313.

5. In his findings on this charge the magistrate wrote

"the pawnbroker was quite positive that the defendant told him he lived at Block 37, Kwai Chung whereas his correct address is Block 38. The defendant had produced his driver's licence by way of identification. The "new" driver's licences. now in circulation for some years, bear the same number as on the holder's identity card but do not bear the driver's address. Despite defendant's denials I was quite satisfied that he did give the wrong address to the witness and convicted."

The magistrate had accepted the word of one man relying solely on the memory of that man of a number given to him months age and which he recorded as sufficient to discharge the prosecution's onus of proof. He failed to consider that the appellant had given to the pawnbroker and proved to have so given (a) his true name (b) his true Room number (c) the true Estate in which he lived (d) his true driving licence number. The only difference was Block 37 instead of Block 38. If anyone were minded intentionally to give false information to a pawnbroker would he go about it in this manner? The magistrate did not rely on the statement but reviewing the totality of the evidence the weight to be given to it could not be more than nil. The conviction was completely against the weight of the evidence and is quashed and the fine imposed set aside.

6. The appeal against conviction on the (F) charge of resisting arrest is dismissed as there was sufficient evidence to support the conviction. The appeal against sentence is also dismissed.

Representation:

Cheng Huan (H.H. Lau & Co.) for Appellant

Dick for Crown

(1) (1866) L.R. 1 Q.B. 444

(2) (1867) 31 J.P. 565

(3) (1946) 1 K.B. at 417