R. v. FONG CHIN KEUNG and Another

IN THE COURT OF APPEAL

1996, No.239
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicants, to whom I will refer as the first and second defendants, faced three charges of handling stolen goods. They were tried in the District Court by Judge Pang and were acquitted on charges 1 and 2 but convicted on charge 3 and sentenced to imprisonment for three years. They now appeal both against conviction and sentence.

2. The charge on which they were convicted was particularized as follows: on 24th September 1995, at a stone hut No.W5827, Fei Tsz Road, Tai Pai Tin Tsuen, Lei Muk Shue, Tsuen Wan, the defendants dishonestly handled certain stolen goods, namely five motorcycles, the property of five named owners, knowing or believing the same to be stolen goods.

3. The evidence came from police officers who were led on that day by Sgt.23050. He said that his party was keeping watch on the stone hut on 24th September and that at about 11:35 a.m. he saw a private car driven to the vicinity of the stone hut by the 2nd defendant with the 1st defendant at that time seated in the front seat beside him. The two defendants alighted and stood on the roadway for 7-8 minutes. Both then boarded the car which drove off and a short time later, about one minute, the two defendants appeared with two Indian or Pakistani males. All four approached the hut. The 2nd defendant was then carrying a tool box and the 1st defendant upon arriving at the hut took a key out of his jeans and opened the iron door. All four then entered. About a minute later the 2nd defendant walked out from the hut without the tool box and some 3 minutes later the 1st defendant also emerged. At that stage the sergeant called for the squad to take action and both defendants, having put up some degree of resistance when the police approached them, were subdued and apprehended. Two police officers went immediately to the hut where they saw the two males, Indian or Pakistani, were dismantling a motor cycle. Five motor cycles were found in the hut. These were admitted to be stolen. Upon being searched D1 was found to be carrying the key to the hut and D2 was found to have the key of the car.

4. At trial neither of the defendants gave evidence. The trial judge in his Reasons for Verdict made the following finding:

"The irresistible inference I draw from the facts are these: Both D1 and D2 had full knowledge that the motorcycles were stolen properties and both were engaged in the illegal activities of storing and disassembling the stolen machines. I have considered carefully the evidence against each defendant. I find that the prosecution has proved each and every element of the charge against the two defendants, and I find them guilty of a 3rd count of handling stolen goods as charged."

5. The applicants are represented today by Mr. Hemmings and Mr. Delaney and they have really argued only one ground of appeal which is that:

"There was no evidence, or no sufficient evidence upon which the Learned Trial Judge was entitled to draw the inference that the 1st and 2nd Applicants knew or believed that the 5 motorcycles particularised in the 3rd charge were stolen vehicles."

Before turning to the thrust of the appeal, we think it proper to deal with a complaint made by Mr. Hemmings which is justified. He submits that the trial judge was wrong to have made the following observation when he said:

"I am satisfied beyond reasonable doubt that although the time they remained inside the hut was short, both defendants nevertheless had sufficient time to give the necessary instructions to the two other males as to how and what to do with the machines."

The inference that the defendants had given instructions while inside the hut was not one which the judge was entitled to draw as there was no evidence which would have justified his coming to such a conclusion. The real thrust, however, of the appeal is that the trial judge failed to analyse the evidence so as to indicate with clarity the facts upon which he relied which justified him in drawing an irresistible inference. Mr. Hemmings concedes that an inference in circumstances such as these can more readily be drawn where a defendant gives no evidence but argues that there were no sufficient facts to warrant the drawing of the inference in the present case. He asks us to distinguish between the two defendants pointing to the fact that while D1 had a key to the hut D2 was not found in possession of any such key and, indeed, having carried the tools to the hut then, almost immediately, left.

6. We have considered all of the facts established by the evidence. Indeed, as Mr. Hemmings concedes, there was no argument about the relevant facts. We are satisfied, as regards both defendants, that there was overwhelming evidence from which the inferences upon which the judge relied could be drawn. They were, as the judge said, irresistible ones and his drawing of them cannot be in any way impugned. The applications for leave to appeal conviction, therefore, must be refused.

7. Both of the applicants also seek leave to appeal against their sentences. This court would have been assisted had the trial judge indicated the starting point used when arriving at the sentences of three years. These were, it is true, serious offences. We are satisfied that the judge was right to have indicated that what occurred was a syndicated activity. It involved a number of persons, it was clearly carefully planned and there is no doubt that the motorcycles would, in whole or in part, eventually have been sold. The judge was, in such circumstances, entitled to take a deterrent element into account when assessing sentence. However these mature men, both in their thirties, were first offenders. The judge mentioned this when sentencing but gave no indication whether he gave it any weight when assessing sentence. Were the sentences of three years in such circumstances manifestly excessive? We are satisfied that they were. The proper sentence would, in each case, have been one of two years.

8. We allow the applications for leave to appeal against sentence, treat the hearing of the applications as the hearing of the appeal and vary the sentences from three years to two years.