THE QUEEN v. YIP KAI-FOON

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HEADNOTE

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Robbery - alternative conviction of handling - evidence of co-accused

Held

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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Li, V. -P.:

1. This is an appeal against conviction. Originally the applicant was charged with four counts in the indictment - two counts of robbery, one count of possession of firearms and ammunition and one count of using firearms with intent to resist lawful arrest. In the event he was found guilty by a jury and convicted on two counts of handling stolen goods, in lieu of the two counts of robbery, and also on the third and the fourth counts namely possession of firearms and ammunition as well as using firearms with intent to resist lawful arrest.

2. The events leading up to the conviction of this applicant may be summarised as follows. On the 10th October 1984 a robbery took place at the King Fook Jewellery Co. Ltd. in Nathan Road where a huge quantity of gold ornaments and watches were taken.  The robbery was aggravated by the use of firearms.  On the 27th October of the same year another robbery took place in Dickson Jewellery Co. in Landmark. Again watches and jewellery were stolen. That these two robberies took place at the material time in the respective shops were not seriously challenged. During December goods which were proved to have been stolen from these shops were recovered.

3. Following an investigation one Sergeant Liu of the police force posed as a buyer of stolen properties. In due course he learned that watches to the value of something like $1.2 million would be on sale at the price of $240,000. This led him to arrange a meeting with a middleman in a car-park near the Harbour Road Fire Station. That was on 28th December 1984.

4. A party of police were keeping observation when the Sergeant negotiated the deal. There he met the applicant together with another person or two. One was the second applicant in this case who has abandoned his application. The applicant was the one who handled a bag of watches and had put it into a car.

5. Another Sergeant, Li, who was with Sergeant Liu, got into the car under the pretence that he was paying for those watches. He asked the applicant to count out the money. When this was done Sergeant Li revealed his identity to effect arrest. There was a struggle. In the course of the struggle the applicant was observed to have put his hand into his waistband to pull out a pistol.  He tried to pull the trigger. There was a click. Fortunately there was no discharged from the pistol. The party of police officers then converged on and subdued the applicant and dragged him out of the car. On his person another revolver was found. Both weapons were fully loaded. They were in good working order. Hence the third and the fourth counts.

6. The defence evidence was a general denial. The applicant claimed that he carried no weapon whatsoever at the time. He denied knowledge that watches were to be sold.  He was there to assist his partner in crime, the second applicant, who told him that he would like to dispose of some smuggled goods. In the course of the trial each applicant blamed the other as being the person who had the watches in possession with intent to dispose of them.

7. Both were convicted. The grounds of appeal relied on by the applicant, as revised by Counsel, were two-fold. The first ground was that the learned trial Judge did not give a full direction to the jury vis-a-vis the evidence given by the second applicant against this applicant. It was contended that the second applicant, albeit a defendant himself, must be treated as an accomplice. As such the Judge should direct the jury that his evidence must first be found by the jury to be reliable. Further, even if the jury found his evidence reliable they must look for corroboration in a material particular and that it would be dangerous to convict the applicant solely on the evidence of the second applicant.

8. Counsel for the applicant very fairly conceded that according to his research there was no authority requiring a Judge, in dealing with the evidence of a co-defendant, to give a full accomplice direction.  There is certainly some material difference between the evidence of an accomplice and the evidence of a co-defendant insofar as it affects the Judge's direction to the jury. We are of the opinion that there is no merit in the first ground.

9. The second ground in support of the application was that the trial Judge misdirected the jury. He told the jury that if they were satisfied beyond reasonable doubt that the applicant was either guilty of robbery or guilty of handling stolen goods, then they would have to consider which offence was more probable or likely in the circumstances and then convict him of either offence accordingly.

10. The following extract or passage of the direction is the subject matter of complaint:

"You might ask yourself, "Hour do we choose between the two?" Well, the answer to that - When I say 'between the two', I mean between robbery or handling stolen goods. Well, the answer to that has been provided by the Court of Appeal in Hong Kong in the case of CHAN Tat and another v. The Queen (and, of course, this court is bound by the decision of the Court of Appeal) and they approved - I'll give the reference to that, counsel wants to write it down: Criminal Appeal 538 of 1972 - where they approved of a passage appearing in an East Afro an case of Andrea Obonyo. Now I'11 read-that passage .to you and I'll read it a second time, if you wish: -

 

        When a person is charged with theft ......"-

and you can read - in this passage you can read for 'theft', 'robbery' because it includes theft

"When a person is charged with theft and in the alternative with receiving, and the sole evidence connecting him with the offences is the recent possession of the stolen property, then if the only reasonable inference is that he must have either stolen the property or received it knowing it to be stolen, he shall be convicted of either theft or receiving according to which is more probable or likely in the circumstances. He is not entitled to be acquitted altogether merely because there may be some doubt as to which of the two offences he has committed. That position is justified because the decision is not between guilt or innocence, but between whether he is guilty of theft or receiving, it having been proved that he is guilty of one or the other."

In all fairness to the trial Judge that was the reported authority on the point at the time. That was the decision of the full court of which I was a member. It adopted the approach of the East African Court of Appeal in the case of Andrea Obonyo. There was no other authority in support of that proposition. S.24(1) of the Theft Ordinance states:

"24. (1) 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.

 

This section took its present form by virtue of an amendment made in 1968.

 

Whatever may have been the position before that date, the ordinance then specifically provided that there was no offence of handling unless it occurred "otherwise than in the course of the stealing".

11. It would appear that the proper direction should have been that if not satisfied that the accused was guilty of theft, the jury would then have to consider the alternative verdict of handling stolen goods and that they might reach the alternative verdict only if they were satisfied beyond reasonable doubt that the receiving took place otherwise than in the course of the theft or robbery.  The phrase "otherwise than in the course of the theft or robbery" is, it is submitted, one of the ingredients of the charge of handling stolen property and the attention of the jury should have been directed to that.

12. Support is found for this proposition in the case of The Queen v. Lam Shuk Wah ⁽¹⁾. That is a case which, though heard and decided by the Court of Appeal, had not been reported. In that case Sir Alan Huggins, V. P., giving the judgment of the court, said:

"We think that the learned judge was ill advised not to make it quite clear, at the time that counsel was addressing the jury, that in his view handling was an open question. Had he done so both counsel for the Crown and counsel for the defence could have addressed him and emphasis would no doubt then have been laid on a number of points including this one, that there had to be an actual finding that the 4th Defendant was not involved in the robbery."

13. We are satisfied, that in order to convict on handling, which it is not necessary for the Crown to prove beyond reasonable doubt that the accused is not involved in a robbery, the Crown is under an obligation to prove beyond reasonable doubt that the receiving took place otherwise than in the course of the robbery.

14. Learned Counsel for the Crown in this application replied to the criticism and the complaint by pointing out that the Judge had, in no less than 7 instances in his direction to the jury, told them that in order to find the applicant guilty of receiving it must be otherwise than in the course of robbery. When the jury came back for further directions on the point the Judge again told the jury as follows: -

"I did point out to you that it is possible for one robber to receive the goods from another person in the course of the stealing. If that happens then he is not guilty of handling. He is guilty of the offence of theft or robbery. He must receive them other than in the course of the stealing."

15. Counsel for the applicant is quick to point out that immediately following this direction the judge again repeated what he said earlier in citing the case of Chan Tat ⁽²⁾ in that the Judge said:

"Now if you were not satisfied beyond reasonable doubt that he committed either robbery or handling stolen goods by dishonestly receiving them, I then direct you that was another way of handling stolen goods or another verdict in respect of handling stolen goods which you can consider - of dishonestly undertaking or assisting in the retention, removal, disposal or realisation of the stolen goods by or for the benefit of another person -"

At the end of his further direction, he said again:

"But I of course pointed out to you also the burden of proof, the standard of proof and I went through the first defendant's evidence with you so that you were fully aware of what his explanation was of the circumstances.''

16. Counsel for the applicant also argued that once there had been a misdirection the number of times that the Judge referred to "receiving otherwise than in the course of stealing did not cure the defect.

17. We feel bound by the decision in the case of Lam Shuk Wah ⁽¹⁾ which is a Court of Appeal decision as distinct from a full court decision. For these reasons we are of the opinion that the application for leave to appeal against conviction must be granted. The appeal is allowed to the extent that the first two convictions of handling stolen property will be quashed and the sentences in respect of them set aside. There being no grounds advanced in respect of the convictions on the third and the fourth counts those convictions will stand.

(1)    Criminal Appeal No. 827 of 1983

(2)    1973 HKLR 114