HKSAR v. LEE SZE WANG AND ANOTHER

HCMA 903/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 903 OF 2000

(ON APPEAL FROM EASTERN MAGISTRACY NO. 1575 OF 2000)

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J U D G M E N T

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1. On 19 December 2000 I adjourned the hearing of the 1st appellant's appeal and, for reasons which I gave in my judgment of that date, I allowed the appeal of the 2nd appellant.

2. Albeit that the appellants were tried together (for different offences) the grounds of their appeals are unrelated.

3. I come now to deal with the appeal of the 1st appellant who, on 22 August 2000, was convicted of a single offence of handling stolen goods. On 17 January I allowed his appeal and set aside his conviction and said that I would give my reasons in writing.

4. The facts, which led to the conviction of the 1st appellant, can be shortly stated from the learned deputy magistrate's findings. At about 4 am on 23 November 1999 a vehicle, in which the 1st appellant was travelling in the rear passenger seat and which the 2nd appellant was driving, was stopped by the police. Upon a subsequent search of the boot of the vehicle there was found (inter alia) 2 mobile telephones in a black nylon bag. These 2 telephones (Exhibits P3 and P4) were stolen during the night of the 21/22 November.

5. During his trial the 1st appellant elected not to give evidence, but put into evidence by the prosecution (by agreement) were records of interview between the police and the 1st appellant during the course of which he said in effect that he had bought the telephones from a man who dealt in such second hand items and that he intended to take them to the Mainland for resale at a profit. He said that he had bought the telephones during the early evening of the 22 November but that he did not know how the seller had obtained them.

6. The learned deputy magistrate found that the 1st appellant's account of matters given to the police was - and I use his words - 'inherently improbable'. The appellant, who as I say did not himself give evidence, did however call one witness whose evidence was to the effect that the 1st appellant traded in "2nd hand" mobile telephones for which there was a ready market on the Mainland.

7. In his statement of findings concerning the case against the 1st appellant, the learned deputy magistrate rejected the submission (of counsel at trial for the 1st appellant) to the effect that he could either accept all of what the 1st appellant had told the police (i.e. that he had purchased the telephones 'innocently') or reject all of what he had told the police (and thus find no evidence that the 1st appellant was in possession of the stolen goods) but that he could not accept some and reject the rest of what the 1st appellant had said.

8. That submission was plainly wrong as a matter of law.

9. The learned deputy magistrate accepted as being the truth what the 1st appellant said to the police about his being in possession of the 2 telephones but rejected what he said about not knowing their origin.

10. The learned deputy magistrate proceeded from there to infer (upon the footing that the 1st appellant was in recent possession of stolen goods in suspicious circumstances) that he was guilty of the offence with which he was charged and which particularised 'receiving'.

The grounds of appeal

11. On behalf of the 1st appellant Mr Richard Wong has argued 3 main grounds of appeal as follows:

(1) Counsel for the 1st appellant at trial failed to cross-examine a co-defendant (the 2nd appellant) about things said by the 1st appellant to him as to why the telephones were to be placed in the boot of his car; how they had come into his possession and what he (the 1st appellant) was subsequently going to do with them.

(2) The learned deputy magistrate drew an inference (necessary for there to be a finding of guilt) upon a misunderstanding of the facts.

(3) The learned deputy magistrate, whilst meticulously referring to the necessity for him to be satisfied beyond a reasonable doubt that the telephones were stolen and that they were found in the possession of the 1st appellant, made no mention whatsoever of the third essential ingredient of the offence i.e. that the 1st appellant knew or believed the telephones to be stolen. Mr Wong complains that the learned deputy magistrate did not deal with that vital constituent of the offence directly at all and that whilst he said that he had drawn an irresistible inference he failed to say what that inference was.

12. Mr Wong has, quite rightly in my view, not pursued a further ground of appeal set out in his perfected grounds to the effect that the learned deputy magistrate had failed to give weight to the evidence of the witness called by the 1st appellant. There was nothing whatsoever in that ground and nor is there anything in the first ground which I have recited which is critical of trial counsel.

13. Mr Wong was however on much firmer ground in relation to matters 2 and 3 above.

14. In his statement of findings the learned deputy magistrate said this:

"Having considered the circumstances in which (he) made the admission .... as to possession or control of P3 and P4, I found no point or issue that would have undermined its evidential value. I could rely on this admission. Accordingly, I found that the prosecution had proved beyond a reasonable doubt that (he) was in possession or control of recently stolen goods, namely P3 and P4.

I next considered the exculpatory part of (the statement), ie the explanation given by him to the police how he came by P3 and P4. ..... Having considered the entirety of (the statements), the circumstances accompanying the discovery of P3 and P4, ..... I reached the conclusion that this explanation must be rejected as being inherently improbable. P3 and P4 were not only found inside D4's vehicle. They were found in the boot of that vehicle. They were not merely found in the boot of that vehicle, but found in the upper right compartment of a large black nylon bag inside the boot of that vehicle. D3 did not give any explanation on any occasion as to why P3 and P4 were placed in a compartment of a bag inside the boot of his brother's vehicle when his brother, being a serving policeman in Hong Kong, had nothing to do with his intended purpose of taking those mobile telephones to Mainland China for sale. Further, if the two mobile telephones were bought at Apliu Street a day or two before the incident, D3 would have had ample opportunity to put them at home or some other convenient place, rather than in a concealed location in the boot of the vehicle of his brother, who was a serving policeman constantly using his vehicle in the course of his duty. Furthermore, an explanation that D3 bought the mobile telephones at Apliu Street in Hong Kong either on 21 November 1999 or on 22 November 1999 was inconsistent with what he said in (one statement) that he returned to Hong Kong from Shenzhen in the evening of 22 November 1999.

.......

There was no suggestion before me that (he) was in any way connected with the stealing of the mobile telephones P3 and P4 ........

Having considered the evidence before me against D3, the explanations given by D3 in (his statements) and the submission of his counsel, ..... I was satisfied beyond a reasonable doubt that as a matter of irresistible inference, on the basis of the possession by D3 of recently stolen goods (namely P3 and P4), (he) was guilty of the offence of handling stolen goods by receiving P3 and P4. I therefore convicted him of the offence charged against him."

15. He thus cited particular reasons why he rejected the exculpatory account of matters given by the 1st appellant to the police. Unfortunately two of those reasons were founded upon a misunderstanding of what the 1st appellant had, in fact, said during his interviews.

16. That was, to my mind, hardly surprising given the nature and form of the two interviews in question. The first one was conducted on 23 November 1999 and the second one some 3 weeks later on 10 December. They were both video recorded. So far as I can see from a reading of the transcripts and translations at no time was the 1st appellant asked about his belief or knowledge at the time that he 'received' the telephones but a great deal was asked about dates and times which questions (and the answers which the 1st appellant gave to those questions) were likely to confuse and mislead.

17. Added to this difficulty, for anybody endeavouring to understand precisely what the 1st appellant had told the police, is the fact (agreed by both Mr Wong and Mr Madigan before me) that the translation of the transcripts is plainly wrong in two places relating to important dates and times upon which the learned deputy magistrate apparently placed reliance.

18. It is a fact that the stolen telephones were found in a bag in the boot of a car in the middle of the night.

19. It was not however a fact, on the available evidence, that the 1st appellant bought the telephones 'a day or two' before his arrest. They were stolen during the night of the 21/22 November (at which time fresh evidence produced before me proves the 1st appellant to have been in the Mainland not returning to Hong Kong until 4.44 p.m. on the 22 November) and bought by him at about 7.00 p.m. on the 22 November.

20. And nor was it a fact (on the available evidence) that if the 1st appellant had bought the telephones on 22 November that was inconsistent with other things which he told the police.

21. As I have said, according to his statement of findings, the learned deputy magistrate relied upon these 'facts' in concluding firstly that the 1st appellant's account of matters given to the police was 'inherently improbable' and then, and in consequence, he apparently relied upon those same 'facts' as enabling him to draw the irresistible inference that the 1st appellant was guilty of the offence with which he was charged.

22. I am in no doubt that in doing the latter the learned deputy magistrate fell into error and that accordingly this appeal must succeed. I am reinforced in my view about this by reason of his approach to the question of inferences in the case against the 2nd appellant.

23. That being so, it is not strictly necessary for me to consider the final ground of appeal advanced by Mr Wong on behalf of the 1st appellant but I think that it may be helpful if I do so given the fact that the statement of findings makes it clear that the learned deputy magistrate based his verdict upon the doctrine of 'recent possession' and such as evidence of guilty knowledge.

24. Archbold (2001 Edition) reads at para. 21-319 as follows:-

"Where the only evidence against the defendant is that he was in possession of recently stolen property, the jury should be directed that they may infer guilty knowledge (a) if the defendant has offered no explanation to account for his possession of the property or (b) they are satisfied that any explanation consistent with innocence which has been given is untrue. They should also be told that if an explanation has been offered which leaves them in reasonable doubt as to the knowledge of the defendant that the property had been stolen the offence has not been proved and the verdict should be not guilty."

25. And at para. 21-310 as follows:-

"It must be proved by the prosecution .... that the defendant at the material time (when he received the goods) knew or believed the goods to be stolen ......

It is not sufficient to prove that the goods were "handled" in circumstances which would have put a reasonable man on inquiry."

26. It is a fact that in his statement of findings the learned deputy magistrate, despite his meticulously referring to two of the essential ingredients of the offence failed to mention the third - that regarding the 1st appellant's knowledge or belief at the time when he came into possession of the telephones. Mr Madigan quite rightly reminds me that a busy magistrate cannot be expected to deal with every conceivable matter in his statement of findings; that in this case the learned deputy magistrate made it clear that he was relying upon the doctrine of recent possession; and that the only inference which he can possibly have been referring to in his findings related to 'knowledge and belief'.

27. On balance I respectfully agree with those submissions albeit that specific reference to that necessary ingredient would have put the matter beyond question and would have made it clear beyond a peradventure that it was a matter to which the learned deputy magistrate had fully addressed his mind, and this is particularly so by reason of what he said in the penultimate sentence of his statement of findings which I have quoted above and which I repeat again with emphasis:-

"I was satisfied beyond a reasonable doubt that as a matter of irresistible inference, on the basis of the possession by (the 1st appellant) of recently stolen goods .... he was guilty of handling stolen goods by receiving (them)."

28. No mention was made of the requisite mens rea and upon a reading of that sentence it might reasonably be thought that the learned deputy magistrate was concluding guilt simply on the basis of possession of recently stolen goods without proof of knowledge or belief that they were indeed stolen.