R. v. WONG WAI HUNG

IN THE COURT OF APPEAL

1996, No. 244

(Criminal)

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J U D G M E N T

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Liu JA:

1. In the District Court, the appellant faced one charge of handling stolen goods, one charge of forgery of documents, one charge of theft and one charge of possession of unlicensed apparatus for communication. In the course of the trial, he reversed his plea and pleaded guilty to the second and the fourth charges. The prosecution offered no evidence in respect to the third. The prosecution proceeded with the remaining offence of handling stolen goods. He was duly convicted and sentenced. He appeals against conviction and sentence.

2. The handling charge as framed reads as follows:

Statement of Offence

Handling stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap. 210.

Particulars of offence:

WONG Wai-hung, on the 17th day of August, 1995, at Man Kam To Border Crossing Point, Ta Kwu Ling, New Territories, in Hong Kong, dishonestly assisted in the retention, removal, disposal or realization of certain stolen goods, namely, one Nissan Tractor assigned with registration mark FM 2624, the property of Shui Nam Navigation (Hong Kong) Limited, knowing or believing the same to be stolen goods.

3. The charge was based on section 24. It would be convenient to set out the section in full.

24 Handling stolen goods

(1) A person handles stolen goods if (otherwise than in the course of 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.

(2) Any person who handles stolen goods shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.

4. In his first ground of appeal, the appellant complains that the trial judge wrongly convicted the appellant "in the absence of either evidence or an allegation that (the appellant) assisted or acted for the benefit of another person."

5. The facts were uninvolved. The handling charge was one of assisting in the retention, removal, disposal or realization of the tractor which the appellant was seeking to take across the border on the charge date. The words "for the benefit of another person" in s. 24(1) were not included in the charge. R v. Sloggett 55 Cr App R 32, is the authority for the proposition that the words "by or for the benefit of another person", where appropriate, must be included. It is, therefore, conceded in this appeal by the Crown that the charge as framed is defective.

6. It would be helpful to deal with the language of section 24(1) before we come to consider, as we are invited, whether the proviso should be exercised. Section 24(1) constitutes a single offence of handling stolen goods. Griffiths v. Freeman [1970] 1 All E.R. 1117. The two more common charges laid under s. 24(1) concern two different methods of handling. They are: first, a charge of dishonestly receiving goods, knowing or believing them to have been stolen. For this charge, the doctrine of recent possession, if relevant, may be introduced because that would be evidence from which an inference may be drawn of the defendant being the guilty handler of stolen goods. It may also be inferred that he is not the actual thief. See R v. Cash [1985] 1 QB 801 at p. 805A, per Lord Lane, CJ The second charge is one of handling stolen goods by dishonestly assisting in the retention, removal, disposal or realization of stolen goods by or for the benefit of another person. Perhaps we should pause here to stress that the doctrine of recent possession is wholly irrelevant to this other method of handling stolen goods, namely, dishonestly handling for another person's benefit. See R v. Sloggest, 55 Cr. App. R. 532 at p. 537, per Mr Justice Roskill as he then was.

7. In his reasons for verdict, the judge said that "the appellant knew the tractor he drove was stolen". He was satisfied that "the prosecution had proved the first charge". He came to the conclusion that "the applicant lied, trying to explain away that he had no knowledge the tractor he drove was stolen". The Crown seeks to demonstrate in the skeleton argument that the judge must have directed his mind to all the ingredients in the offence, including the appellant's alleged assistance in the handling of stolen goods for the benefit of another person. From the passages I have quoted, the judge could well be understood to say that if contrary to the appellant's evidence that he did not know the tractor to have been stolen, his knowledge could be derived from the fact that he himself was the thief. Whether or not the judge had excluded the appellant as the thief, the judge could not have been taken as completely putting out of his mind the possibility that at the juncture when he was trying to take the tractor across the border, he was assisting in the conveyance of the tractor from Hong Kong to China for his own benefit. We are not persuaded that properly read, the quoted passages must be referable exclusively to a charge of handling goods for the benefit of another person. The section was also not mentioned by the judge in his reasons for verdict. In fact, that was all the judge said. Consequently, both the judge's reasons for verdict and the charge as framed are defective.

8. We are urged by the Crown to invoke the proviso. Should it be exercised? Could it be said that the judge sitting both as judge and jury could have been under no misapprehension that the appellant was not assisting other than for the benefit of another person? As we have said, no reference was made to the text of the section in his reasons for verdict. It was unclear in the evidence for whose benefit the appellant was assisting in handling stolen goods - his or another person's? We are also taken through the exchanges between Bench and Bar in the course of the proceedings, but it would seem that they failed to alert the judge to the critical importance of the words "and for the benefit of another person" which were missing from the charge. Further, what was said by the judge in his reasons for verdict did not seem to have clearly excluded the appellant as the thief himself. If, as submitted in the skeleton argument, in essence the Crown had taken some point on the doctrine of recent possession which really had nothing to do with the charge, such emphasis on recent possession would only have led the court further away from the notion of "for the benefit of another person" in a handling charge.

9. In these circumstances, it can neither be said that the judge could not have been under any misapprehension as to true nature of the charge nor that the appellant clearly suffered no prejudice. We are not persuaded that this is a fit case to exercise the proviso.

10. We do not find it necessary to deal with the remaining grounds of appeal. The appellant succeeds on his first ground. We allow his appeal and quash the conviction.