THE QUEEN v. LAI KWOK CHEUNG

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H E A D N O T E

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    Handling stolen goods - mens rea - knowledge or belief goods to have been dishonestly obtained not sufficient.

    S. 54(1)(b) Criminal Procedure Ordinance - Breach - Material irregularity - Conviction Quashed.

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J U D G M E N T

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1. The appellant was tried before a magistrate on a charge of burglary which read:

"Lai Kwok Cheung, you are charged that between the 14th day and 17th day of July 1986, at the Officers Mess of Shek Pik Prison, Shek Pik, Lantau Island, in Hong Kong, having entered as a trespasser a building known as the Officers Mess of Shek Pik Prison, you did steal one video cassette recorder, valued at about $2,000 Hong Kong currency, the property of the Officers Mess of Shek Pik Prison."

At the end of the trial, he was acquitted of burglary but convicted by the magistrate of handling stolen property which is a statutory alternative, offence. He was sentenced to a fine of $3,000 or 6 weeks imprisonment in default of payment of the find within 14 days. He appeals against conviction only.

2. The undisputed facts were that on 17th July, 1986 a video cassette recorder was found missing from the Sha Tsui Officers Mess and on 21st May, 1988 the same video cassette recorder was, found at the home of the appellant in Shatin. The appellant was an officer of the Correctional Services Department and had access to the premises.

3. The rest of the evidence was that at the time the video cassette recorder was found at his home, the appellant told, a police inspector that he had taken it from a local bully but immediately asked the inspector to give him a way out as he could not afford a conviction. Immediately after this he also told a prison officer in the presence of the same police inspector that he could not afford to have a conviction as he had wife and children and he was emigrating to another country. He asked to be given a way out and offered to resign. The prison officer told the appellant that it was beyond his authority as the matter was in the hands of the police. The appellant was arrested.

4. Handling stolen goods is defined in section 24(1) of the Theft Ordinance, Cap. 210 which reads:

"A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so."

5. Obviously the magistrate relied on what the appellant told the officers to infer guilty knowledge as there is no other evidence. The burglary or theft took place nearly two years ago and the doctrine of recent possession clearly could not be invoked against the appellant. In his s judgment which the magistrate delivered at the end of the trial, he contradicted himself in saying:

"The exact truth of these statements is in my view not important, what is important is that the statements made by the defendant clearly indicates the defendant was aware the video recorder had been dishonestly obtained."

6. Of course, it is important to determine if the statements were true before he could act on and give weight to them. If they are not true, the statements are not evidence upon which the magistrate can rely.

7. This finding is the basis of complaint in 3 and 4 of the Grounds of Appeal. It is perfectly true and this has not been disputed that the video cassette recorder was stolen goods and it was found at the home of the appellant nearly two years later. The question remains: did the appellant know or believe the goods to have been stolen? It is clearly a misdirection on law that the appellant was guilty of the offence if he was aware that the video cassette recorder had been dishonestly obtained. The mens rea required for the offence of handling stolen goods must be that the person knows or believes the goods to have been stolen, he then dishonestly receives it, or dishonestly undertakes or assists in their retention etc. Knowledge or belief that the goods had been dishonestly obtained does not suffice nor suspicion that the goods had been stolen. Guilty knowledge must also be proved to have existed at the time of the receipt: R. v Grainge (1973) 59 Cr. App. R. 3.

8. In view of the conclusion I have reached it is not necessary for me to deal with Grounds 5 and 6. The principal complaint by the appellant is to be found in 1 and 2 of the Grounds of Appeal which allege a breach of section 54(1)(b) of the Criminal Procedure Ordinance, Cap. 221 which provides:

"the failure of any person charged with an offence, or of the wife or hushand as the case may be of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution."

9. At page 13 of the record, Crown Counsel made these comments in his final address to the magistrate:

"Maybe could comment on defendant failing to give evidence. There is authority, to do so. Paragraph 4-431 page 496 Archbold."

10. While it is correct that a judge or a magistrate may in appropriate cases comment on the failure of a defendant to give evidence a prosecutor has not been afforded such a right. On the very, contrary, he is strictly prohibited from so doing and a violation of this prohibition invariably results in a conviction being quashed.

11. Despite argument by Mr.Wong to the contrary, I am in no doubt what Crown Counsel said in the court below was a clear invitation to the magistrate to draw adverse inferences against the appellant because he failed to give evidence.

12. Mr. Wong also argued that this section had no application to summary trials in magistrates courts and he relied on Part III of the Criminal Procedure ordinance as his authority. He submitted that Part III only applied to jury trials in the High Court.

13. This argument, however, completely overlooks the provision in section 58 which specifically provides that sections 54 to 57 apply to all criminal proceedings:

14. I am satisfied that there was clearly a breach of the mandatory provision of section 54(1)(b) which must result in the quashing of the conviction or a re-trial: YU Yuk-kwong and others v The Queen (1979) HKLR 585 at pages 594 and 595.

15. In a recent decision of the Court of Appeal in Fai Ma Trading Company Limited v L.S. Lai, Industry Officer, Magistracy Appeal No. 516 of 1987, it was held that a Judge of the High Court hearing an appeal from the decision of a magistrate has no power to apply the proviso, unlike the Court of Appeal which enjoys this power by virtue of section 83(1) of the Criminal Procedure Ordinance.

16. However, the question of the application. of the proviso does not arise in this case nor does a re-trial. The appeal must succeed on merits as well as by reason of the breach of the mandatory provision of S54(1)(b).

17. For the reasons which have been stated, I allow the appeal, quash the conviction and set aside the sentence. The fine, if paid, will be refunded.