THE QUEEN v. NG KAM CHUEN

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HEADNOTE

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Chattel - Chattel found in an aircraft - ownership - workman finding gold bars in an aircraft delivered to his employers for cleaning - whether workman or employers had right of possession - Criminal Law and Procedure - Magistrate - Necessity for congruity between information, evidence and conviction - Powers of the High Court on appeal from a Magistrate's Court.

                An aircraft was delivered to the hanger of an engineering company for cleaning. An employee of that company found a parcel of gold bars which he and other members of his work-team divided between themselves and took to their homes. The find was not reported. The employee was charged with theft upon an information the particulars of which laid the property in the bars in "a person unknown''. At trial before a magistrate the employee contended that the bars had been abandoned and that, accordingly, he could not be guilty. He was convicted. The Magistrate's 'Statement of Findings" given prior to Review, when the conviction was confirmed, explained that the employee had stolen from his employers. The information was not amended.

                On appeal by the employee:-

                Held (1) allowing the appeal, quashing the conviction and setting aside the sentence, that the information was bad in that the employee was misled as to the case he had to meet and had made certain elections in consequence; that the information should not be amended on appeal and that an order for retrial was inappropriate. Sections 23(2), 27 and 119 of the Magistrates Ordinance (Cap. 227) considered.

                        (2) that on the evidence before him the Magistrate had rightly concluded as a matter of law that the employee was guilty of theft from his employers. Section 6(1) of the Theft Ordinance (Cap. 210) considered.

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JUDGMENT

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Kempster J.A.:

1. Ng Kam-chuen appeals out of time, by leave, against his conviction by Mr. R.C. Andrews, at San Po Kong Magistrate's Court on 7th February 1986, of theft. This conviction was upheld, on review, on 14th march. The facts which gave rise to it would have afforded first-class material for a university moot.

2. During the afternoon of 1st December 1985 and in the course of his employment by and within a hanger in the occupation of Hong Kong Aircraft Engineering Co. Ltd. (HAECO) the appellant and several others constituting a work-team were dismantling a lavatory compartment in a Boeing 747 aircraft which had been delivered to HAECO by Cathay Pacific Airways Ltd. for thorough cleaning. A heavy package fell from the top of that compartment. It was found to contain 5 gold bars. The members of the team, including the appellant, distributed the bars between themselves and, at the end of the shift, took them to their respective homes. They told no-one in authority of their valuable find. Each bar was worth some $15,000.

3. The following day and in order to facilitate a more equitable division of the spoils the appellant was asked by another member of the team to sell one of the two bars which he had acquired but, according to a statement which he made to a Detective Constable on 6th December, I said that I would not - because I did not know whether it was stolen or not and it was better to wait for some time. The Detective Constable had interviewed the appellant because the security manager of HAECO had learned of the matter as a result of an anonymous telephone call and sought police assistance.

4. The first submission made below on behalf of the appellant, who was not a trespasser on the aircraft, was that he could not be guilty of the theft of the bars because it was to be inferred that they had been abandoned in the lavatory of the aircraft and were neither owned nor possessed by anybody. Accordingly he and the other members of the team had established title by finding and taking the bars. Armor v Delamirie ⁽¹⁾. The second submission eras that there was nothing dishonest about the appellant's behaviour. I unhesitatingly agree with the magistrate that it was and is unsustainable by reason of the appellant's secrecy and of his related suspicion that the bars might have been stolen.

5. Returning to the first submission made below I accept that the circumstances of the find are consistent only with abandonment of the bars by a thief or a smuggler or, to quote the "particulars of offence","a person unknown" who, in a moment of panic or of good judgment and demonstrating a dominant concern for liberty at the sacrifice of illicit gain, hid them in the aircraft. Subject to the terms of the information that in itself did not suffice the appellant. The material parts of Section 6 of the Theft Ordinance read:

"(l)    Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest -

(3)    Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or its proceeds shall be regarded (as against him) as belonging to the other.

 

Its terms pose the question "Did anyone have possession or control of the bars while they were secreted in the lavatory of the aircraft immediately prior to their discovery by the appellant and other members of the work-team."

6. If an occupier manifests an intention to exercise control over land or premises, as by excluding others, he is to be regarded as in control of chattels upon such land or premises. R v Woodman ⁽²⁾. If the intention is not manifest, as in relation to the public part of a shop for example, there is no such control. Bridges v Hawkesworth⁽³⁾ as explained by Lord Russell C.J. in South Staffordshire Water Co v Sharman ⁽⁴⁾.  What is true of an occupier of land or premises is true of the "occupier" of an aircraft. Parker v.B.A. Board ⁽⁵⁾ in which appeal, strangely enough,  R v Woodman ⁽²⁾ was not cited. At the material time the aircraft was in the control and "occupation" of HAECO and their intention to exercise control over everything in it, rather like the situation of a householder and his house, was prima facie manifest. In my opinion, following that of Oliver Wendell Holmes in "The Common Law" p.222, this general intention sufficed to provide the mental element required. for possession. Further, in the absence of evidence in relation to the terms of his employment the appellant found the bars and took them out of the aircraft on behalf of HAECO in any event. They acquired such rights as accrued to a finder to his exclusion and the provisions of section 6(3) of the Oridnance apply. Again subject to the terms of the contract between them, HAECO would, in turn, be bound to account to Cathay Pacific Airways Ltd. for the bars.

7. Put either way on the evidence before him the Magistrate correctly found as a matter of lave that the appellant stole by dishonestly appropriating gold bars which belonged to HAECO with the intention of permanently depriving them of such bars. But that, as was pointed out on review, was not the case which the appellant could reasonably have been expected to meet at trial having regard to the terms of the information which read:

8. Charge: - Theft

9. Statement of offence: -

Contrary to Section 9 of the Theft Ordinance, Cap. 210, Laws of Hong Kong.

 

- that section refers to the penalty for theft incidentally.

 

Particulars of offence:-

Ng Kam-chuen - you are jointly charged that on the 1st day of December, 1985, at an aircraft Junbo 747 in Hong Kong Hong Kong Ainternational Airport, Kowloon, in Hong Kong, you did steal five gold bars, the property of a person unknown.

The spelling is the prosecutor's.

10. Property, whether in the context of section 6 or otherwise, was squarely alleged to vest not in HAECO but in a person unknown and it was on that basis that the appellant elected to admit what were described as "Brief facts of the case" and to call or give no evidence. It appears from the record that it was not until he came to give his considered Statement of Findings on 7th March of this year, being a month after the conviction, that the Magistrate adverted to and ruled on the possibility of prior and better rights to the bars being vested in the appellant's employers. He did not amend the information nor did he adjourn the case pursuant to section 23(2) of the Magistrates Ordinance. At no stage was any application made by nor on behalf of the Crown to amend.

11. On appeal no reliance has been placed by the Crown on the terms of section 27(1) as it is accepted that a substantial. disparity between the terms of an information and the evidence adduced may vitiate a conviction despite this provision. In the instant case the real objection relates not so much to the evidence but to the unheralded reliance by the Magistrate upon certain aspects of it in his Statement of Findings.

12. This Court has wide powers on appeal as spelt out by section 119 of the Magistrates Ordinance. In particular sub-section (1)(d) reads:

"the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate."

13. I think it is much too late to amend the information now even if I have jurisdiction to do so which I gravely doubt. Meek v Powell ⁽⁶⁾; Lo Wai Ki v R ⁽⁷⁾; Garfield v Haddocks ⁽⁸⁾. The real issue which falls for determination if the conviction was bad is whether or not a retrial should be ordered. In my opinion the conviction was bad because the appellant was convicted upon a basis of which he was given no reasonable notice by the terms of the information or by the way the case against him was presented at trial by the Crown and which, accordingly, he had no opportunity to meet. The conviction must be quashed and the sentence set aside.

14. The other members of the work-team appealed to Addison J. On an earlier occasion and, on 24th June, their convictions were quashed for similar reasons. The judge stated that his sense of justice would not permit them to be subjected to the ordeal of trial a second time. In the light of that observation it would be singularly inappropriate for me to take a different course as regards the remaining member of the work-team. There will be no order for a retrial as against him either.

(1)    (1722) 1 Strange 505

(2)    1974 QB 754

(3)    (1851) 21 LJ QB 75

(4)    1896 2 QB 44 at p.47

(5)    1982 1QB 1004 at p.1018

(6)    1952 1 KB 164

(7)    1957 HKLR 454

(8)    1974 QB 7