Chan Ying Kit v. The Queen

Case No.CACC 121/1980

Court

Court of Appeal

Date21 Mar 1980

Judge—

Case Document

100%

CACC000121/1980

Recent possession - charge of theft - operation of the doctrine of recent possession - adequacy of magistrate's statement of findings - whether magistrate placed onus on defendant to rebut the presumption flowing from recent possession

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 121 OF 1980

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Between
	Chan Ying Kit	Appellant
	AND
	The Queen	Respondent

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Coram: Addison, J.

Date of Judgment: 21 March 1980

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JUDGMENT

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1. Of the various arguments raised in this appeal against conviction for theft, the only one which has troubled me has been the question whether or not the learned magistrate erred in his comprehension of the doctrine of recent possession.

2. At one stage I considered that the appeal should be allowed on the ground the magistrate might have misunderstood the application of the presumption of recent possession, believing it cast the persuasive burden of establishing innocence on the appellant.

3. On a more mature reflection I think it is clear the learned magistrate was not saying that.

4. The passage in his statement of findings which has caused concern is as follows:

"Altogether he was far from being an impressive witness. I did not believe his story about being hired by two coolies. At the close of his case I was of the opinion that he had failed to overcome the presumptive evidence of theft raised by the doctrine of recent possession."

5. The matter which exercised my mind was whether the learned magistrate was therein suggesting the onus of establishing his innocence rested on the accused.

6. In favour of it being read in that light was a passage, also in the statement of findings that:

"When he finished I pointed out how useful it would be for him, whether by himself or with the court's assistance to call, if necessary, everyone who had been on the Kumagi site to give evidence of the negotiations concerning, and the removal of, the I-beams."

7. Taking this latter extract in isolation, one wonders why it should be "useful" for him to call any witness. If there were a lacuna in the evidence for the prosecution then the appellant was entitled to the benefit of it. It could be argued as against the magistrate, that he was swelling the effect of the presumption which flows from recent possession by indicating to the accused he ought to have called evidence.

8. That is one way of looking at the matter to upset the convictions. On the other hand the latter remark could be attributable to the anxiety on the part of the magistrate, albeit misguided, to assist this unrepresented accused by intimating to him how his mind was working. Perhaps he felt, and this seems more reasonable, that the doctrine of recent possession was operating strongly against the appellant and he wanted him to adduce evidence which might clinch matters in his favour.

9. I assume the magistrate made his comment with the best of intentions but the point remains: Did he misunderstand the nature of the presumption as casting an onus on the accused to establish his innocence?

10. In other words when he said:

"I was of the opinion that he had failed to overcome the presumptive evidence of theft raised by the doctrine of recent possession,"

was the learned magistrate treating the presumption as proof in itself rather than facilitating proof?

11. The important thing to remember when considering the presumption of recent possession is that though it may lighten the standard of proof it does not eliminate it nor does it cast upon the accused the burden of disproving it.

12. The matter is put most clearly in Glanville-Williams' Textbook of Criminal Law (1978) at page 112.

13. There the learned author writes:

"The prosecution's evidential burden is alleviated in two ways.

	First, the judge can draw common sense inferences from evidence; and some of these have hardened into propositions of law. An illustration is the presumption arising when a person is found in possession of goods that have recently been stolen. He may be indicted for theft or for handling stolen goods, or for both; and on proof that the goods had recently been stolen and that the defendant was found in possession of them, the prosecution are entitled to have the case left to the jury.
	Although this presumption assists the prosecution to have the case left to the jury, satisfying their evidential burden, it does not shift the persuasive burden, the burden of proof. The jury must still be told that the burden of proving the case so that they feel sure of guilt is on the prosecution. Therefore, if the defendant gives any explanation of his possession consistent with his honesty so that the jury are left in doubt, he is entitled to an acquittal."

14. Harris in his book on Criminal Law 22nd Edition at page 596 points out that a presumption is a conclusion which the law says may be drawn from a certain basic set of facts. A presumption of fact differs from a rebuttable presumption of law. A presumption of fact is an inference which may or may not be drawn by a court whereas a rebuttable presumption of law is one where the law requires the presumption to be drawn in the absence of rebutting evidence.

15. The facts of the case as found by the magistrate were straight-forward.

16. On the night of the 10th/11th October 1979 forty-nine I-beams worth $13,000 were stolen from the construction site of Kumagi Gumi Hong Kong Ltd. They were loaded on to a lorry which is one of those with a hydraulic crane attached to its body. It is not in dispute that the appellant was the driver of that lorry and was assisted by two coolies.

17. According to the appellant he then drove the two coolies and his load to a weigh-bridge at Kwai Shing. That weigh-bridge was not operating when they arrived and so the appellant parked his vehicle for the night in a place nearby. At about 9.30 a.m. on the following day i.e. the 11th October 1979, the appellant presented himself and his load at the Nam Lee Iron and Metal Factory where he and two fokis, unloaded the beams. Mr. Fung, a clerk at that factory told the appellant to go to the office and collect payment. He asked the appellant for his address and telephone number. According to Mr. Fung the appellant declined to give those particulars but said he would telephone later to make arrangements to collect the cheque in payment for the beams.

18. It was the evidence of Mr. Fung that the appellant said he had to leave in order to go home to get money to pay the lorry attendants. If that were said it would imply the two fokis were servants of the appellant.

19. The case for the appellant was that he had no idea these beams were being stolen and he was the innocent dupe of the two foki's who had engaged his lorry for this purpose. He denied saying he was leaving in order to pay his attendants. According to him they had to pay him. He thought the beams were abandoned property. He did not know the names of the two fokis other than as Ah Bing and Ah Shing and he did not know where they lived.

20. This was obviously a tall story for anyone to accept and it is hardly surprising the learned magistrate rejected it. He said he did not believe the appellant's story about being hired by two coolies.

21. Having rejected the appellant's story it was quite clear the magistrate could infer guilt from the absence of any credible explanation by the appellant as to how he came into possession of the beams.

22. Clearly there was ample evidence to support the conviction but the sole question of any importance in this appeal is: Did the learned magistrate consider he was obliged to find guilt from the appellant's "failure to overcome the presumptive evidence of theft raised by his recent possession?" In other words was he placing the onus on the accused rather than regarding himself free to draw the inference of guilt from the doctrine of recent possession.

23. I am satisfied the learned magistrate did not cast any onus on the appellant. In effect he was saying that the doctrine of recent possession evidentially operated in the trial and this had not been defeated or overcome by the appellant's testimony which found no credence with him. In other words he was drawing the inference the appellant was the thief.

24. This appeal against conviction is dismissed.

	(F. Addison)
	Judge of the High Court

Representation:

Mr. Frank Wong, Counsel for Crown

Mr. Robert Whitehead (D.L.A.) for Appellant