Lau Shek-hung v. The Queen

CACC000131/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 131 OF 1975

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Coram: Full Court (Briggs, C.J. , Huggins & McMullin, JJ.)

Date of Judgment: 12th June, 1975.

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JUDGMENT

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1. The appellant was tried together with eight other persons on an indictment containing eleven counts all of which concerned a series of robberies between the 12th and 29th of March 1974. Some of the accused offered pleas of guilty in respect of certain of the charges; no evidence was offered on other charges against certain of the accused and in the upshot four of the original nine were put in the charge of the jury upon one or more of eight of the original eleven counts in the indictment. The first defendant was acquitted by the verdict of the jury on the direction of the judge following a submission by defence counsel at the conclusion of the case for the Crown. The remaining three defendants were convicted of various offences the present appellant being convicted of various offences the present appellant being convicted upon the only two charges which concerned him. These were charges of handling certain of the goods which had been proved to have been stolen in the course of two of the robberies charged in the other counts. These goods consisted of a few items of jewellery out of a very large quantity of cash, jewellery and other property which had been stolen in the course of the three robberies charged in the indictment.

2. The appellant was arrested together with all the other defendants when the police raided his flat in Chai Wan on the 29th of March. The stolen property laid in the charges against him was recovered from a stove in premises occupied by his older sister when subsequent to his arrest he was taken there by the police in the course of their investigations.

3. The only evidence against the appellant was that he had rented the flat where he was arrested with the other accused some days after the first of the robberies laid in the indictment; that between then and the time when they were all arrested he had permitted all save one of the other defendants to take up residence at that premises. There was, however, no evidence to show that he was well acquainted with any of them except a man called CHAN Wan-yu, originally the 7th defendant; that on the 28th of March the 7th defendant asked him to take a small parcel of jewellery into his custody for safe keeping and that as a result of that request he went with the 7th defendant to his sister's premises and deposited the jewellery - which was in fact the stolen jewellery in the custody of his sister on terms that she would keep it for the 7th defendant. The basic issue in the appellant's case therefore was whether in so dealing with this jewellery the appellant was aware that it was indeed stolen property.

4. A point was made by Mr. Murphy on the hearing of the appeal that there had been misdirection inasmuch as the learned trial judge directed the jury to consider whether or not the evidence was sufficient to establish that the appellant was the receiver of the stolen property. In his submission the undisputed evidence given both by the 7th defendant and by the appellant negatived any suggestion that that possessory custody and control of the property remained in the appellant. It is true that the trial judge does appear to have dealt with the evidence on this basis and he stressed the aspect of recent possession. If therefore, we were dealing with the old law relating to receiving stolen property it might be that, on the authority of such cases of Seiga v. The Queen ⁽¹⁾ and Comerford & Others v. The Queen ⁽²⁾, we might have been persuaded that there was substance in Mr. Murphy's contention that this evidence was insufficient for the finding that the appellant was a receiver. The appellant, however, was charged under Section 24 of the Theft Act which clearly includes acts not necessarily concerned with possessory custody and control but covers a wider spectrum of dishonest behaviour in relation to stolen goods than was formerly comprised under the law relating solely to receivers. If, therefore, there was a material misdirection in this respect we would have had no hesitation in applying the proviso since upon any view of the facts which the jury might possibly have accepted there is no doubt whatsoever that what the appellant admittedly did constituted assisting in the retention of those goods on behalf of the 7th defendant. The only material question was therefore whether he did so with guilty knowledge.

5. The appellant's story was that he had handled this jewellery in this way because on many previous occasions his friend, the 7th defendant, who was employed in the jewellery trade had asked him to take custody of such jewellery which he, the 7th defendant, was working upon for private customers of his own after normal hours of employment in the jewellery shop where he was employed. Although the learned trial judge repeatedly warned the jury that they could not find the appellant guilty solely by reason of his being found in association with other known robbers there was great substance in Mr. Murphy's contention that the whole slant of the summing-up in this regard would have been to direct the jury's attention to that association in such a way as to prompt them to assume that the appellant was in fact the proprietor of a thieves' kitchen. There was no real evidence that such was the case and this must have strongly affected their minds in coming to the conclusion the appellant knew the jewellery was stolen. There was nothing to show that the appellant was well acquainted with any of the defendants other than the 7th defendant, a person he had known for some time. Only two of the defendants at that date had any criminal convictions of any kind and those were of a minor nature. There was thus no question of the appellant's consorting with known criminals and the flat which he rented was not rented until some days after the first robbery in the series. In all the circumstances we felt that it would be unsafe to sustain the conviction of the appellant on the two counts of handling. We therefore allowed the appeal and set aside the convictions and sentences reserving our reasons for doing so until later.

Representation:

Mr. Murphy (C. Griffiths & Co.) for appellant.

Mr. Caird, C.C. for Crown/ respondent.

(1) 45 C.A.R. 26.

(2) 49 C.A.R. 77.