THE QUEEN v. YIP CHUNG MAN and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.990 OF 1995

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J U D G M E N T

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1. This was an appeal, so far as the 1st appellant was concerned, against his conviction on three charges of burglary, and so far as the 2nd appellant was concerned, against his conviction on one charge of burglary. Both had been convicted of the 1st Charge of burglary which related to the Sing Kee Store on the Ground Floor, 249 Ngau Tau Kok Road, Kowloon. The charge, as amended, alleged that cash of $9,000 was taken, as well as 10 packets of cigarettes valued at $2,300. Initially the charge particulars had included a waist bag, but for reasons which are difficult to understand, this was not included in the amended charge.

2. The facts were that two police officers came upon the scene, saw the blue security alarm light of the building flashing and heard some noise. They saw a person they later identified as the 2nd appellant rushing out from the store to a taxi, which later was found to be driven by the 1st appellant. They followed the taxi, never losing sight of it or the men inside it. They saw a plastic bag, which was later found to contain gloves and chisels, being thrown out of the taxi. When they later searched the taxi and the men, all they found was the waist bag which contained $1,675.60. There was no sign of any cigarettes nor of the $9,000 claimed by the owner of the premises to have been stolen. They were not then facing a charge which included the theft of the waist bag.

3. The learned Magistrate in his Findings said this :

"A good point was made for the defence by comparing what was taken in the burglary with what was recovered from the defendants or from the taxi. PW2, the store owner, said that $9000 and 10 packets of cigarettes as well as the waist bag had been found to be missing after the burglary. The bulk of this money and the cigarettes were not recovered after the relevant searches. This made me pause, but it did not raise any reasonable doubt in my mind as to the guilt of D1 or D2. It is possible to think of a number of reasonable explanations which would account for their absence. The waist bag linked the taxi to the burglary and the defendants were linked to the taxi."

With respect to the learned Magistrate, there was no satisfactory evidence that the appellants had stolen $9,000 or 10 packets of cigarettes. If he was to believe the two police officers who pursued the appellants in the taxi, and he did, then he would have to accept from them that there was no possible way that the appellants could have disposed of the stolen goods before they were apprehended. One reasonable explanation for the absence of the stolen goods might well be that the store owner was not telling the truth about what was stolen from his premises, and that the police had come upon the appellants before they had an opportunity to steal anything, except the waist bag, and they were not charged with stealing that. However, there was no other reasonable explanation as to why the stolen goods referred to in the charge were not in the taxi when the police eventually intercepted it.

4. I was therefore not satisfied that this conviction could stand. However, as burglary is a serious offence and as the evidence in support of a charge of burglary, naming the waist bag as the item stolen, is strong, I decided to order a retrial. The retrial will be in front of a different magistrate.

5. So far as the other two offences were concerned involving the 1st appellant, I found no reason to interfere with the convictions and they were allowed to stand.

6. I amended the sentence because of my decision on the first charge, so that the 1st appellant now faces a sentence of 12 months on each of the 2nd and 3rd Charges, the sentences to run concurrently.