HKSAR v. WONG WAI PING

CACC 478/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 478 OF 2002

(ON APPEAL FROM DCCC 719 OF 2002)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant Wong Wai Ping appeared before Deputy Judge W C Li in the District Court on an indictment consisting of three charges. She pleaded guilty to the 2nd charge of attempting to obtain property by deception and the 3rd charge of using an identity card relating to another person and was sentenced to concurrent terms of 10 months and 6 months imprisonment.

2. The applicant was convicted after trial on the 1st charge of burglary and sentenced to a consecutive term of 30 months imprisonment. The total sentence is one of 40 months imprisonment.

3. The applicant now seeks leave to appeal against conviction on the 1st charge of burglary.

4. The case proceeded on certain admitted fact as follows:

"As all material times, Mss. Lau Yuk-yee (PW1) was a staff member of Famous Forever Limited (the Company). The office of the Company was situated at Room 1807, 18th Floor, Wang Lung Industrial Building, No. 11, Lung Tak Street, Tsuen Wan, New Territories. Staff members of the Company would have lunch break between 1300 and 1400 hours daily.

Charge 1- Burglary

At about 1300 hours on 9.1.2002, Ms Poon Shun-kei (PW2), also a staff member of the Company, and her colleagues left the office for lunch. PW2 secured the glass door of the office before she left for lunch. PW1 was feeling unwell. She stayed behind and took a nap in the office during the lunch break.

Upon waking up at about 1350 hours on the same day, PW1 found that the following properties belonging to her missing from a paper box behind her chair:

（1） her own Hong Kong Identity Card number

（2） One Dao Heng Compass visa card (account number: xx);

（3） One Standard Chartered Bank visa card (account number: x);

（4） One Dao Heng Bank visa card (account number: x);

（5） One black handbag;

（6） One black wallet;

（7） Her own Home Visit Permit Card (number: )

（8） One HSBC ETC card (account number: x)

（9） Cash HK$600;

（10）One "Toshiba" Mini Disc Player valued at about HK$1,000:

（11）One bundle of keys.

Apart from PW1's properties, properties of PW2 and the Company also went missing during the aforesaid burglary. PW2's "Sony" Mini Disc player, Model:MZ-E7071A valued at about HK$1,700 and one "Acer" notebook computer (S/R:S01-0140782-8) valued at about HK$18,800 of the Company were stolen.

Charge 2 - Attempted to obtain property by deception

Charge 3 - Using an identity card relating to another person

About an hour later on the same day (at about 1415 hours), the defendant (D) presented PW1's Standard Chartered Bank visa card and attempted to buy a mobile phone at a shop, namely "Telecom-port Communication Limited" (the Shop). The Shop was situated at Shop 5, Ground Floor, No. 60, Sai Yeung Choi Street South, Mong Kok, Kowloon. The supervisor of the Shop, Mr. Chan Hing-sang (PW3) requested D to produce identification for verification. D produced PW1's Hong Kong Identity Card to PW3.

Another staff member of the Shop made a mistake in entering the price of the mobile phone. D presented the other two credit cards of PW1 (items (2) and (4) of para. 3 herein) for payment of the mobile phone. PW3 refused to do so. D snatched all three cards of PW1 and PW1's Hong Kong Identity Card and fled the Shop. PW3 reported the case to the police.

After a lot of hot pursuit by PW3, PC34917 (PW4) and PC33544 (PW5) intercepted D at Ground Floor, No. 618 Nathan Road, Mong Kok, Kowloon. Upon a search, the three credit cards and the Hong Kong identity card belonging to PW1 were found in D's possession. PW3 arrested D. Under caution, D remained silent."

Defence Case

5. The applicant did not give or call any evidence.

Findings By the Judge

6. The judge found that the burglary occurred at the office of the Company between 1 pm and 1.50 pm on 9 January 2002 and that the applicant was in possession of 3 credit cards and identity card of PW1 within an hour of the burglary.

7. The judge pointed out that the place where the applicant used the credit cards and identity card was quite a distance from the Company. The judge concluded that the burglar would definitely know that the theft would be swiftly discovered and there must have been great haste to use the credit cards before the card centers were informed of the losses.

8. The judge concluded that the evidence of recent possession is an overwhelming piece of circumstantial evidence against the applicant. The judge considered the 1st charge of burglary against the applicant had been proved to the required standard. He therefore convicted the applicant of the burglary charge.

Grounds of Appeal

9. Mr. Allan, on behalf of the applicant suggests that the judge had not properly evaluated the evidence. In particular, it is suggested that the judge had not considered how it was possible for the applicant to burgle the Company without alerting PW1 when there was no evidence of a forced entry.

10. Mr. Allan submits that it had not been proved properly that the credit cards and identity card were in the office at 1 pm and hence the judge was wrong to apply the doctrine of recent possession.

11. Mr. Allan also points out that if the applicant was the burglar and was in a great haste to use the credit cards, she would not have gone to the trouble of travelling from Tsuen Wan to Mongkok.

12. Paragraphs 2 to 4 of the Admitted Facts were prefaced with "Charge 1 - Burglary". It might not have explicitly stated that the burglary took place between 1300 and 1350 hours, the Admitted Facts, reading in its entirety must lead to the only reasonable conclusion that the burglary did take place within that period of time. There was no other basis for such admitted facts to be presented to the court in the form as it did.

13. It has to be borne in mind that PW1 not only lost her credit cards and identity card, her handbag and other personal items and belongings were also stolen. It must also be borne in mind that "properties of PW2 and the Company also went missing during the aforesaid burglary".

14. The suggestion that PW1's credit cards and identity card could have been lost earlier is not, in our view, a tenable suggestion.

15. Recent possession of stolen properties does not automatically lead to proof of theft or burglary. It is just an inference that can be drawn as a matter of common sense. "The inference is not one that the jury are bound to draw, but they may do so if all the surrounding facts warrant it. (Property Offences 1994 by A.T.H. Smith, page 977)

16. The Admitted Facts suggest that the glass door of the office was secured by PW2 before she left for lunch. There is no suggestion of any breaking in. If there was a breaking in by a stranger, PW1 must be aware of it even though she was feeling unwell. In the circumstances, no one other than an insider could have gained access to the office. There is no explanation in the admitted facts as to how anyone other than an insider could have gained access nor any suggestion that the lock (if there was a lock) was forced. There is no evidence as to how many persons worked in the office or how large the premises were.

17. We must not ignore the agreed facts that at the time when the applicant was found to be in possession of PW1's credit cards and identity card, she did not have the other stolen properties with her.

18. It is of course possible for the applicant to have parted with possession of the other stolen properties shortly after the burglary if she indeed was the burglar. But it is equally possible for someone else to have committed the theft and then gave the credit cards and identity card to the applicant within the period of time in question.

19. The applicant was in possession of properties taken from the burglary within a short time after the burglary. But the surrounding circumstances are not such that we can feel safe in drawing the inference that the applicant was indeed the burglar even in the absence of any evidence from her.

20. "That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it." (see The Queen v Cooper 53 Crim. App. R. 82 at page 86)

21. In our judgment, a doubt exists and we must give effect to it by quashing the burglary conviction and setting aside the sentence thereon.

22. Mr. Saw SC, for the respondent agrees with our view.

23. But the facts of the case clearly suggest that the applicant was using the stolen credit cards and identity card of PW1 in an attempt to purchase expensive items. She must be aware that the credit cards and identity card were stolen properties and she must be acting dishonestly.

24. Section 32 of the Theft Ordinance Cap. 210 empowers us to substitute a conviction of handling stolen goods in place of a burglary charge. We are satisfied that justice of the case will be met by finding the applicant guilty of handling stolen goods. Neither counsel takes issue with such approach.

Conclusion

25. We therefore discharge the burglary conviction and in substitution thereof a conviction of handling stolen goods. We are informed that the applicant had offered to plea to the charge of handling stolen goods at the outset, but the offer was rejected. In considering the sentence, we take that into consideration. We also take into consideration her clear record and everything urged upon us.

26. We are of the view that a global starting point of 30 months appropriate and it will be reduced by 1/3 on account of the mitigating factors.

27. We impose a sentence of 12 months imprisonment on the substituted conviction of handling stolen goods. 10 of 12 months are to be served consecutively to the 10 months imprisonment on the 2nd and 3rd charges.

28. The total sentence is reduced from 40 months imprisonment to 20 months imprisonment.

29. We grant the applicant leave to appeal against conviction and allow the appeal to the extent indicated.