THE QUEEN v LO WING FAI

------

__________

JUDGMENT

__________

Cons, V.-P. delivered the judgment of the Court:

1. This is an appeal against the decision of His Honour Judge Blackwell who on the 7th October last year, at Tsuen Wan District Court, convicted the Defendant of theft of a motor vehicle. He sentenced the Defendant to 18 months and activated a suspended sentence of 6 months which had been imposed upon the Defendant in March 1983 for going equipped for stealing.

2. The substance of the evidence said to be against the Defendant was that some time early in September 1983 one Chan Chi Woon owned a private motor car. He had only had it for about 3 months, but he did not like it. He gave it to the Defendant, who was his brother-in-law, to sell on his behalf. The Defendant was very familiar with that particular car because it was he who had sold it to Chan Chi Woon in the first place and had in fact owned it for the previous two years, although for the last few months of that time it had been registered in the name of his girl friend. When Chan Chi Woon handed over the car to the Defendant, he gave to the Defendant a blank transfer form duly signed.

3. On the 17th September someone identified as Chan Chi Ming sold what was apparently the same car to a Mr. Ho Sin Fai. We say "apparently" because it bore the same registration number. But in fact it was not the same car. What was sold on the 17th September was a car which had been stolen on the 12th May, that is some four months previously, and which was the subject of the charge.

4. Ho Sin Fai did not identify the Defendant as Chan Chi Ming although he had every opportunity to do so if indeed they were one and the same and the only matter which could possibly connect the Defendant with the sale was that Chan Chi Ming was in possession of the blank transfer form signed by Chan Chi Woon and to which we have already referred.

5. Counsel for the Defendant submitted at the trial that there was no case to answer. His submission was rejected by the judge. The Defendant elected to give no evidence.

6. In his Reasons for Verdict the judge refers to comments made by the Court of Appeal in R. v. Lam Tsz Wah⁽¹⁾ which are to the effect that where there is sufficient circumstantial evidence, an inference of guilt may perhaps be more readily drawn when the Defendant elects not to go into the witness-box.

7. Counsel for the Defendant today does not quarrel with those comments. Nor could he, but with every respect to the judge, there was just not sufficient circumstantial evidence in the first place. Counsel who appears for the Crown today is in agreement with our view and would only add in fairness to the judge that perhaps the judge was led astray by the complexity with which the case was presented below. There may be force in that comment.

8. For these reasons the conviction must be quashed, the sentence set aside and the activated suspended sentence also set aside.

(1)    Criminal Appeal 754/83