THE QUEEN v. CHUNG SHI SHUN

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JUDGMENT

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McMullin, V.-P. :

1. The applicant was convicted in the High Court upon a charge of handling stolen property. He had originally been charged with robbery but the indictment was amended immediately before the commencement of the trial.

2. The charge concerned 43 cartons of eel fry. These were the property of CHENG Kin-yan, a businessman, who had caused them to be transported from a Special Economic Zone in Swatow by truck on the 16th March, 1984. The driver of the truck drove from Swatow to Hong Kong late on that day and he was to meet his employer on the following morning at about 9:00 o'clock at Sheung Shui Railway Station. He got there at about 9:00 o'clock but before his employer appeared, three men armed with knives entered his truck overpowered him and drove off with the cargo of eel fry. Subsequently that cargo was moved into another vehicle. The driver was bound and gagged and left in his truck by the robbers who have, so far as we know, never been apprehended. The driver freed himself and reported to the police.

3. The case of handling against the applicant was borne upon the testimony of a number of witnesses who became involved in a somewhat complicated series of manoeuvres and dealings over the 16th and 17th of March.

4. This train of events began, as is common ground, with a phone call by the applicant to a Mr. CHENG Kwok-hon. Thereafter, there took place something in the nature of a telephonic merry go round involving a number of persons. CHENG rang a man called CHAN Yam-lit asking if he could find a buyer for the eel fry, this being the burden of the telephone message which he had received from the defendant. CHAN Yam-lit in turn rang another man, LAU Hon-shu, with the same question. Lau rang a man called LO Ting who continued in the same course by ringing CHAN Cheung-kwan who got in touch with a man called CHAO Kin-tak who eventually produced the man who was supposed to be the ultimate purchaser, NG Wai-tat.

5. In the evening of the 16th March and during the 17th of March, these persons in various combinations and at various times met to discuss the purchase and disposal of the eel fry. There were meetings in Kowloon at a shop owned by CHAN Yam-lit, referred to throughout the trial as the pigeon shop. There were meetings at a restaurant called The Pak Ho where, eventually, the ultimate purchaser, NG Wai-tat, was introduced into the affair as were a person called FUNG and his assistant. These latter two appear to have been principal parties and perhaps prime movers in the whole affair.

6. The fry were removed in a truck from the place to which they had been brought, close to the pigeon shop, to a, pond at Sai Kung in the New Territories. There they were weighed and put into the pond. There was evidence, given by the true owner of these fry, who recovered them eventually through the police investigation, that these were indeed the very goods that he had purchased in China for sale to a purchaser in Tai Wan.

7. It is not necessary to enter in- detail into the evidence given by the several witnesses called by the Crown describing these various manoeuvres. It is clear that the applicant took a prominent part in the negotiations concerning the introduction of the other persons and the disposal of the fry in the New Territories.

8. He also took part in some of the negotiations concerning the manner in which the fry were to be paid for by Mr. Ng. Evidence was given that this was supposed to be a cash deal and that - the purchaser being unable to produce cash in the quantity required - there was a discussion as to the use of cheques to be cashed on the Monday morning following the day upon which these discussions took place, which was Saturday. Eventually $20,000 odd in cash and three cheques totalling about $400,000 were paid over by Ng, the cash and a cheque nor $288,000 add being received by Fung and the two other cheques being variously handled by LO Ting, CHAN Cheung-kwan and CHENG Kwok-hon. The party then dispersed.

9. On Sunday the 18th the police arrested various persons who had been involved in these negotiations, some at the pond in the New Territories and some at the pigeon shop. The applicant himself was not then arrested. He lay low for some weeks but eventually surrendered to the police.

10. The applicant did not give evidence at the trial but statements which he had made to the police were put in by the prosecution. He had made three such statements over several days while he was in custody.  The gist of these is that he was an innocent intermediary. He had been approached, he said, by a man called Fung, who had informed him that eel fry would be available for purchase and Fung asked him to find a buyer. He said that he expected to receive a commission for his work in this regard. He did not apparently challenge to any significant degree, the evidence given by the witnesses concerning the part that he had played in the negotiations.

11. A submission of no case was made at the conclusion of the prosecution case and was overruled. One of the points made before us upon this appeal is that the judge was wrong not to accede to the submission. We are satisfied that there was sufficient material to go to the jury.

12. The other grounds of appeal, however, have more substance. Firstly, it is said that the judge misdirected the jury by telling them that suspicion on the part of the accused that the goods were stolen was an alternative to knowledge or belief that they were stolen. I can conveniently subjoin with that the second ground which was that the summing-up was confused and did in fact confuse the jury.

13. As to the misdirection, the particular passage to which Mr. Muscroft, who appears for the applicant upon this appeal, referred us appears at page 9 of the summing-up where the judge said the following:

"So, it must be proved one of three things, that is what I am saying. One of three things must be proved. It must be proved that the accused was aware of the theft, that he was aware of it and knew that he was dealing with the proceeds from it, or that he himself believed these goods to be stolen even though he wasn't actually aware of the precise theft and where it took place and under what circumstances it took place but, nonetheless, he believed these goods to be stolen goods or that he himself suspected them to be stolen at the time he dealt with them - he suspected them to be stolen and he deliberately and consciously shut his eyes to the circumstances. But simply his dealing with them is not good enough."

Mr. Muscroft relies upon the decision of the Court of Appeal in England in the recent case of Robert Moys ⁽¹⁾ where similar directions had been given by the trial judge. The case concerned the theft of a horse. The jury were directed that they had to be satisfied so that they were sure that at the time when the animal came into the defendant's possession he knew or believed it had been stolen. The judge then went on to say:

"In the present case the words used by the judge plainly told the jury that strong suspicion coupled with the deliberate shutting of the eyes was not merely an alternative but was equivalent to belief. That is not correct for the reasons indicated. It was a material misdirection and the only remaining problem is that of whether the proviso to Section 2 sub-section l of the Criminal Appeal Act 1968 should be applied."

Before considering the question of the proviso, it must first be said that the misdirection in the present case was certainly as serious the misdirection in Robert Moys. To that must be added the difficulty raised by certain of the other directions given by the judge. At pages 7 and 8 of the summing-up, in an obvious endeavour to be helpful to the jury, the judge resorted to giving examples of the kind of conduct which would indicate guilty knowledge on the part of a person who had purchased property at a low price. What he then said seems to imply that it might be possible for the jury to form an opinion of guilt upon the basis that the defendant had purchased goods at a small price and later on had discovered that the goods were in fact very costly.

14. The earlier misdirection to which I have referred was not, in the opinion of this court, adequately corrected later on. It is true that on page 13 of the summing-up, the judge did say:

"First, you must decide what are the facts, what are you prepared to find proved beyond reasonable doubt as being the facts. Then you look at those facts and say 'On these facts am I able to say that the accused knew or believed that these goods were stolen?' You've got to determine what the facts are before you can go much further than that."

That was on the face of it a correct direction. Unfortuantely it comes immediately after a passage in which some distinctly confusing directions were given concerning the movements of the parties, which obviously had, to some extent, caused trouble to the judge himself. And it comes after several other pages of directions of - which no complaint is or can be made - but some considerable time after the initial misdirection.

15. This was a case in which the prosecution were relying upon circumstantial evidence involving a series of incidents and manoeuvres, not any one of which would tell definitely in the direction of guilt, and this third possibility left to the jury was one which, if in some degree of doubt, they might well have seized upon in order to convict. That they were confused to some extent seems to be borne out by what occurred when they came to deliver their verdict.

16. Upon being asked if they had a verdict, the foreman made the following speech:

"On judging about the facts based on the statements and those acts presented by the witnesses, we find that firstly it is quite difficult to convince us, that is, the six of us I mean, that Mr. CHUNG Shi-shun was not, involved or knowing anything in advance about that merchandise being stolen goods. And next, I find that actually, there is hardly any concrete proof for Mr. FLING ........... the relationship between Mr. FUNG and the accused. From the statements, it seems that the accused just knew Mr. FUNG about one month and only knew about the pager's number, not even the home telephone number or even the given name of Mr. FUNG. And besides, the accused claims that he is making nothing out of the whole deal."

Not only does that passage indicate that they cannot very clearly have understood the many times reiterated - and correct - directions as to the burden proof but it contains a factual-error. The foreman there was clearly referring to one of the statements made by the applicant in which the defendant had said that he had known Fung for only a month and had no greater knowledge about him than that Fung had introduced him to this deal and that he knew Fung's pager number. But what this rather rambling comment indicates is that the jury may have been in some doubt as to what the defendant had actually said in these statements. In one of them, he quite clearly said that he did expect to be rewarded for his part in this deal. He was expecting a commission of some kind. The foreman of the jury was evidently under the impression that the accused's case on that point was that he himself was going to make nothing ultimately out of this affair. That, if rejected as untrue, might well have moved the jury towards disbelieving the possibility that the applicant might have been innocently involved in this series of transactions.

17. Mr. Cross for the prosecution frankly admits that there has been a material misdirection. He asks us however to apply the proviso. Both he and Mr. Muscroft, who opposes that course, rely upon the case of Moys ⁽¹⁾. In that case the facts revealed, that the defendant had given two quite contradictory stories. Nevertheless, despite that fact - a factor which does not exist in the present case - the court said:

"We accordingly feel unable to say that properly directed the jury would necessarily have come to the same conclusion as that which they did, it follows as therefore that the conviction on the handling must be quashed and the appeal allowed."

18. No doubt Mr. Muscroft is right to say that the circumstances in Moys ⁽¹⁾ afforded less justification for the use of the proviso than would those in the present case.

19. Nevertheless, we are satisfied that under circumstances disclosed earlier in this judgment this is not a case in which the proviso ought to be applied.

20. There was, however, material upon which the charge was properly laid. Mr. Cross has summarized for us the matters upon which the prosecution particularly rely. These include the following: the involvement of the defendant in the series of discussions concerning payment; the fact that it was the applicant who had himself gone to the place at which the eels had delivered and had come back to inform the others at the pigeon shop that that had been done; the fact that he did take part in the ultimate discussion concerning whether cheques would be a permissible form of payment and that he, together with Fung and the other man, at first strenuously resisted that suggestion; the fact that he was present on the Sunday when matters were straightened out between Mr. Fung and the buyer on the basis of the rescinding of the deal and return of the cheques; the fact that he was expecting that the eel fry would be delivered back to the pigeon shop and went there himself to receive them (according to Mr. Chao) upon return of the cheques; his expressed opinion that the price was low; the information that he was able to give, upon the 17th March, to two other members of the party at the Pak Ho Restaurant who were discussing the question of payment, to the effect that the eel fry had been a long time out of water and needed to be taken to the pond very soon; and, finally, the fact that he "went to ground" for some weeks after the arrest of all the other persons.

21. These are among the more significant circumstances which persuade us that this is a case in which we are justified in ordering a retrial. Accordingly we direct that the applicant be tried upon a fresh indictment similarly framed to that before us.

(1)    (1984) 79 Cri. App. Rep. 72