R. v. KWAN WAI-HUNG & OTHER

IN THE COURT OF APPEAL

1995, No.143

(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. In this matter originally six defendants faced one charge of theft. The charge alleged that they had on 12th November 1993 at 7, Kwan Tei North Village in Sheung Shui in the New Territories, together with two other persons stolen 870 cardboard boxes of cigarettes, the property of the Yan Kee Transportation Company. Today there are two applicants before this court. They were, at trial, the 1st defendant and the 3rd defendant and I shall refer to them in that way.

2. The 1st defendant pleaded guilty and was sentenced to imprisonment for two years and he now applies for leave to appeal against the sentence. The 3rd defendant pleaded not guilty. He was convicted after trial. He is represented by Mr. McNamara and now seeks leave to appeal against conviction.

3. The facts, and I do not intend to traverse them at any length, were that a group of men were found transferring cigarettes from one container to another in a yard in the New Territories.

4. The only evidence against the 3rd defendant was his presence there as one of the group transferring cigarettes from one container to another. The trial judge, when coming to his conclusion as to guilt, made it plain that he accepted that that was the only evidence against him. He went on to detail the exculpatory evidence which the 3rd defendant had given in which he said that he had been hired at 1½ times the going rate to help with the transfer. He rejected that evidence. He then went on:

"The first question is whether there is evidence to connect D3 to the theft. He was, with others, in very recent possession of stolen cigarettes. The vehicle containing them had obviously been driven from where D6 (the original driver of the vehicle) had parked it to the place where it was to be unloaded; and D3 was one of those unloading it.

The judge then said:

"The whole circumstances of the transfer of goods indicate illegality and infer the guilt of anyone involved."

Mr. McNamara underlines those words emphasizing that what the judge said there is that there was an indication of "illegality". The judge went on:

"I have no evidence of the exact value of the goods but they were obviously worth a good deal of money. Cigarettes are dutiable, though whether or not duty had been paid is not clear. Yet they were not being transferred in a warehouse or bonded store, but in an unpaved yard in the New Territories. To any person of normal common sense this must indicate illegality."

He said later:

"It is arguable that the proper inference would be handling rather than theft. On the face of it the transfer of the goods between containers would be removal or disposal after appropriation which would be complete when the vehicle was taken. However it seems to me that the removal or disposal followed so closely on the actual taking of the container vehicle that the proper inference is a continuing joint enterprise to which the unloaders were a party along with the driver and any others involved in the taking of the vehicle.

The next question is whether the Defendant's evidence of innocent involvement could reasonably be true."

He then detailed the evidence of the defendant which he rejected and he concluded saying:

"In any event, as I have said, the circumstances of the transfer clearly infer illegality. D3's whole story seems to me to be quite incredible."

It seems to me that the only possible inference is that the Defendant was a party to the joint enterprise to steal and dispose of the cigarettes. It is not therefore necessary to consider the alternative verdict of handling though I would indicate that if it were, what I have said above would equally apply. D3's story is incredible, and he must have known that the goods were stolen."

5. The point taken today by Mr. McNamara is a short one. He submits that even if there was recent possession and obvious illegality these facts did not give rise to an irresistible and conclusive inference that the 3rd defendant knew that the goods were stolen. He submits that the possibility of an equally likely inference, i.e. a belief that the goods were smuggled, could not be excluded. There is very considerable force in this argument and Mr. Saw has conceded that he finds it difficult to oppose it. Indeed the conclusion to which Mr. Saw came was one at which I think all members of this court had arrived, in a preliminary way, at the end of the argument of Mr. McNamara. We are satisfied that the judge was wrong to hold that the only possible inference to be drawn was an inference of knowledge that the goods were stolen. We are satisfied that another, at least equally likely, inference was knowledge that the goods had been smuggled.

6. The conviction cannot stand.

7. The application for leave to appeal against the conviction is allowed. The hearing of the application is treated as the hearing of the appeal and the appeal is allowed.

8. The applicant is discharged.

Application of First Defendant for leave to appeal against Sentence

9. We have already canvassed the facts in this matter. The 1st defendant was one of those involved in the transhipment of the cigarettes. He immediately admitted that involvement to the police and then pleaded guilty at trial. The applicant was sentenced to imprisonment for two years and that sentence was ordered to be consecutive to a sentence of six years on a robbery charge which he was already serving. The trial judge said when sentencing:

"D1 is also entitled to a discount of say one year in respect of his plea of guilty, which was indicated earlier on."

One year was one-third of the sentence of 3 years which the judge thought an appropriate starting point. The judge went on:

"I note that he is serving a sentence of 6 years for an offence of robbery committed whilst on bail for this offence. Obviously the sentences for the two offences must be consecutive. I have to have regard to the totality principle but I cannot say that a total of eight years, for a jewellery robbery and a theft of this magnitude, would be excessive or that, if both cases had been dealt with together, the total would have been less."

10. Mr. Wong, who appears for the applicant today, suggests that the trial judge failed properly to apply the totality principle and in particular that he overlooked what he refers to as, citing Thomas on Sentencing, the second limb of the totality principle. He describes this limb as follows:

"This part of the principle appears to require a sentencer who imposes a series of consecutive sentences to consider the mitigating factors in relation to the totality of the sentence, even though they have already been considered in relation to the individual component parts."

We are satisfied that the sentence of six years was a proper one for a serious robbery, that the sentence of two years was proper for a serious theft, and that the overall sentence of eight years, making those two sentences consecutive was also proper. It was, in our view, the sentence which would rightly have been imposed had the applicant appeared on both offences before a single judge. It is not one with which we can interfere. The application for leave to appeal against sentence is, therefore, refused.