THE QUEEN v. LAM SAI LAM

Magistracy Appeal No. 347/85

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

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BETWEEN

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JUDGMENT

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1. The appellant was charged before the Magistrate's Court at Kwun Tong with theft contrary to Section 9 of the Theft Ordinance. The particulars of offence averred that 'some time between the 15th of January 1985 and the 25th day of January 1985 at Wai On Construction Site, Lot 5864, Kowloon Bay, Kowloon in Hong Kong', he did 'steal 25 aluminium window frames and 124 aluminium bars, the property of Wai On Construction Company'. He was convicted and appeals to this Court against that conviction.

2. The evidence against the appellant consisted of three prosecution witnesses, namely PW1, the watchman of the construction site where the stolen goods were allegedly recovered by the Police, PW2, the Foreman of the Wai On Construction Site from where the goods had been stolen, and PW3, a Police Sergeant who went to investigate a report made to him by the first prosecution witness, and who traced PW3 the owner of the stolen goods.

3. The original memorandum of appeal indicated that the grounds of appeal were that there was no evidence or no sufficient evidence whereon to found the conviction. However, the appeal was argued on the basis of additional grounds which were subsequently filed that the conviction was unsafe and unsatisfactory for the reason that there was no or no sufficient evidence that the appellant was in possession of the items, the subject matter of the charge in the early hours of the 25th of January 1985 or at any other time. The arguments at the hearing of the appeal attack the evidence in two areas, one, that the evidence of PW1 who was a crucial witness was too unreliable upon which to base a conviction and two the chain of evidence relating to the exhibits was inadequate.

4. There was an additional ground raised at the hearing that there was no sufficient evidence to prove when the items, the subject matter of the charge, were stolen from the victim and accordingly there was no evidence upon which the doctrine of recent possession could apply.

5. It must be said that the evidence of PW1 vas unsatisfactory in some respects. The Magistrate was fully alive to this fact. Despite what Mr. Bharwaney says on behalf of the appellant, and having examined PW1's evidence very carefully, I cannot say that the Magistrate was wrong to find that the items depicted in photograph Exhibit P1 were the items which had been brought by the appellant to his construction site and about which he, PW1, was complaining. Although the record from the Magistrate's Court indicates that PW1 gave evidence that the appellant came to the construction site number "7071" with some things at about 1 am on the 25th of January 1985, whereas the Magistrate in his findings found that the construction site was number 5871, I do not think that anything turns upon this difference. This would seem to be a typographical error, because it would not have been possible for the Magistrate to make a finding that the construction site was number 5871 if the evidence related to number 7071. However it is clear that the construction site being referred to by the witness and the Magistrate was the construction site where PW1 worked as a watchman and there could be no mistake about that. Mr. Bharwaney further pointed out that there was no evidence as to the lighting condition within the site or the extent to which PW1 could see the things allegedly brought by the appellant. Of course that is perfectly true, but at no time was there any question about this raised at the trial. It seemed to be assumed by everybody at the trial that there would have been no difficulty in visibility despite the fact that the time referred to was in the early hours of the 25th of January. In this connection it is pertinent to observe from the record that PW1 says that he spoke to the appellant at the time, and from this one could infer that he was in close proximity to him, and he said that the things which the appellant was putting into the site 'even though they were not ours' were 'long frames of windows and doors there was a lot of these'. Clearly this is evidence upon which the Magistrate could rely even though there was no evidence as to the lighting, because the witness must have been able to see the items to describe them in this way. Furthermore his subsequent actions flow from the fact that he was able to see them.

6. Mr. Bharwaney also pointed out that PW1 gave evidence that he did not inspect the items brought by the appellant. However I do not consider that this is a point of substance. If PW1 could tell that the items did not belong to his own site just by looking at them then there would be no need to inspect them in great detail.

7. Mr. Bharwancy complains about the identification of the items in a photograph Exhibit P1. The identification of the items in the photograph of course took place at the trial and was not strictly necessary. The events out of which this charge arose took place some two months before the trial. The question which really concerned the Magistrate at the hearing was whether the items which had been identified by PW2 at the Police Station were the same items to which PW1 was referring when he said hat they were brought to his site by the appellant.

8. This brings me onto the second base of the first ground of appeal which was that the chain of evidence was inadequate.

9. Mr. Bharwaney argues that there was no evidence or any direct evidence that Exhibit P1 was a photograph of the items found by PW3 at the construction site and secondly that there was no evidence that the goods identified by PW2 were the goods found by PW3 at the construction site number 5871 and in particular there was no evidence that the items allegedly deposited by the appellant on the said construction site number 5871 had been taken by the Police (to the Police Station) following the arrest of the appellant.

10. So far as the chair of evidences is concerned there is no doubt that PW2, the Foreman of the Wai On Construction Site on the 28th of January 1985 found that a quantity of aluminium window frames and bars were missing from site number 5864. He gave evidence that they were missing "after the 15th of January". Having been shown the photograph Exhibit P1, he said that the items depicted therein were similar to some of the missing items. He was shown a window frame on the 28th of January and as a result of that he went to the Police Station and saw a pile of items and he identified those items as part of the missing items taken from the Wai On Construction Site. That identification was convincing because he was able to recognize not only the items but also markings or the items. Furthermore, his evidence went unchallenged and uncontradicted. So he purported to identify them both in the photograph Exhibit P1 and physically at the Police Station.

11. It was of course necessary for the Crown to connect those stolen items with the appellant. To do this, they had to rely upon the evidence of both PW1 and PW3. PW1 described the 'things' put on the construction site as 'long frame of window and door and that there were a lot of them'. While in the witness box he was shown the photograph Exhibit P1 and purported to recognize them as being the items depicted in that photograph. The Sergeant PW2 said he found 25 aluminium window frames and 124 aluminium bars at the construction site number 5871 on the 27th of January 85.  He spoke with PW1 and they laid ambush.

12. After they had intercepted the appellant in the early hours of the morning on the 27th PW1 identified the appellant in PW3's presence as "Ah Lam'", the person who had ''sold the aluminium bars and frames to Ah Chan". It had been PW1's evidence that Ah Chan rented a part of PW1's site.

13. Pausing for a moment, PW1's accusation is of course not evidence as to the truth of what is stated therein. Neither was there any evidence to the effect that the appellant had acted in any sort of way which would amount to an acceptance of the truth of that accusation. It is however relevant in that the Sergeant clearly understood that the accusation was being made in respect of aluminium bars and frames. Indeed that was what he was supposed to be investigating. He described how he took samples and went to a number of sites. By this he was obviously referring to the aluminium bars and frames which he found at the construction site number 5871. He testified that the owner identified these items in Exhibit P1. He was obviously referring to PW2 whose unchallenged evidence showed that he had identified the items in Exhibit P1 and also at the Police Station.

14. On the Magistrate's view of the evidence, I do not consider that there was a reasonable possibility that the Sergeant would have shown PW2 items which had no connection with this case. I consider the chain of evidence was sufficiently proved.

15. So far as his final point was concerned Mr. Bharwaney pointed out that the doctrine of recent possession was based upon the evidence of PW2 to the effect that the items stolen from his site had been stolen after the 15th of January. He argued that there was no investigation at the hearing as to how this witness was able to say that, he only having become aware that items were stolen when he looked into the matter on the 28th of January 1985. Mr. Bharwaney argues that it may well be that that piece of evidence was based upon hearsay.

16. I do not think that it is open to me speculate that evidence produced before the Magistrate might be based upon hearsay. There was evidence before the Magistrate that these items were missing after the 15th of January. The Magistrate was entitled on that evidence which went unchallenged to find that the theft could have taken place between the 15th of January and the 25th of January, the date on which PW1 says he saw the appellant bringing these items into his site. However be that as it may the learned Magistrate drew the inference that by reason of the fact that the exhibits were bulky and hard to store and that the appellant had no fixed abode for such storage, that those items had been stolen on the very same night that PW1 saw the appellant bringing, them onto his site. I consider that that was a reasonable inference for him to draw in the circumstances.

17. The Magistrate disbelieved the evidence of the appellant, and looking at the record of his evidence it would have been surprising if he had not. He went on to convict the appellant on the basis of the doctrine of recent possession.

18. In my view the Magistrate was alive to the difficulties in this case and considered the case carefully before convicting. On the view he took of the evidence he was entitled to convict the appellant, I cannot say he was wrong to do so. I therefore dismiss this appeal against conviction.