THE QUEEN v. CHEUNG SHING KIN

----------------

---------------------

JUDGMENT

---------------------

Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced five charges which alleged that be various dates in 1987 he did at his hardware company at Shek Kong Sheung Tsuen, New Territories, handle building accessories knowing or believing them to be stolen. The, accessories which were found on his premises ware, it was the Crown case, stolen from building sites in Shatin, Tuen Mun and Tsuen Wan in a series of robberies and burglaries. The applicant was convicted after two before Judge Yeung in he District Court and was sentenced to two and a half years on each count to run concurrently. He now seeks leave to appeal against those convictions.

3. Mr. McCoy who appeared for the applicant argued three grounds of appeal. The first was that:

"1. The learned Judge wrongly failed properly or at all to exercise his discretion to exclude the evidence of PW 10 and PW 11 under section 29(3) of the Theft Ordinance, cap 210."

This section reads as follows.

"S.29(3) Where a person is being proceeded against for handling stolen goods (but not for any offence other than handling stolen goods), then at any, stage of the proceedings, if evidence has been given of his having or arranging to have in his possession the goods, the subject of the charge, or of his undertaking or assisting in, or arranging to undertake or assist in, their retention, removal, disposal or realisation, the following evidence shall be admissible for the purpose of proving that he knew or believed the goods to be stolen goods -

(a)     evidence that he has had in his possession, or has undertaken or, assisted in the retention, removal, disposal or realisation of, stolen goods from any theft taking place not earlier than twelve months before the offence charged; and

(b) (if seven days notice in writing has been given to hire of the intention to prove the conviction) evidence that he has within the five years preceding the day of the offence charged been convicted of theft or of handling stolen goods."

4. PW 10 LUI Chun Wing gave evidence that he was as to foreman of the Shui On Construction Company. He said that a burglary took place at the construction site of Shui On at block 4, Ma Foo Quarters at Shatin Race Course on 17th March 1987 in which eleven cartons of push button knobsets were lost. He said that he went to the Shatin Police Station in August 1987 and January 1988 to view the push button knobsets as depicted, in photographs which were tendered in evidence as Exh.1. He identified a sample of the knobsets which were in cartons numbered 9099 and he said, inter alia, that he was able to do so because it was one of a batch of deer locks specially made for doors of 55 mm thickness which was unusual as doors for residential units would only be 45 mm in thickness, and which was packed in cartons bearing the serial number 9099.

5. P.W.11 LAM Hon Ching said that tie was a site clerk of the Hopewell Construction Ltd. at Lotto Court, Broadwood Road, Happy Valley and that there was a burglary at the site on 12th May 1987 when 420 Schlage bathroom locks arid other building materials were stolen. He said that on 17th August 1987 he went to the Shatin Police Station to view items depicted in photograph G of Exh. 1 and was able to say that the items seized were taken from his site during the burglary This evidence was given without objection by Mr. Pedruce, counsel for the defence, and without any specific ruling being made thereon by the trial judge. The witnesses were simply called gave their evidence, were cross-examined and then left the witness box.

6. The Judge's Notes reveal that Mr. Pedruco, when submitting that there was no case to answer, contended that the Crown had failed to prove that the goods seized from the Chun Kee Metal Shop were those that had been taken in the robberies and burglaries. He also submitted that there was no evidence to show that the defendant knew of the existence of the goods in the Chun Kee Shop. When this submission was overruled Mr. Pedruco did not call his client but go in Addressed the court on the issues and relying upon his earlier submission, he submitted further that there was a conflict as to who was the owner of the shop, as one of the witnesses had said the defendant was the owner and the business register showed that the wife was the owner. He submitted that it was not clear therefore in whom the ownership really rested

7. The Judge in his Reasons for Verdict, having reminded himself that the onus rested throughout on the Crown, stated that he was satisfied beyond all reasonable doubt that:

(i) the goods recovered, were all stolen property;

(ii) the civilian witnesses were truthful and reliable when they identified those goods as theirs;

(iii)     the goods as to which P.W.10 and P.W.11 had given evidence were taken in burglaries on 17th March 1987 and 12th May 1987.

(iv)     the goods by which he must have meant the goods the subject of the charges, were in the control and custody of the defendant and within a period of two to eight days after the robbery or burglaries in which they were stolen.

8. He stated, that he was satisfied that the doctrine of recent possession applied, and he found, that the defendant was in possession of the stolen goods taken in the burglaries on 17th March and 12th May 1987.

9. He then concluded:

    "Such matters in the absences of any explanation from the Defendant, has driven the Court to the conclusion that the Defendant had the guilty knowledge and belief.

    The court is satisfied beyond a reasonable doubt that when the Defendant possessed the stolen goods in question, he knew and believed them to be stolen goods and that he was acting dishonestly."

10. Mr. McCoy, in his first ground, contended that it was clear from to e record that the judge had failed to exercise the discretion which he had to exclude the evidence of P.W. 10 and P.W.11. The existence of a discretion in circumstances such as this was, he submitted, clearly established. He referred to R. v. Rogers [1979) 1 NZLR 307 where the New Zealand Court of Appeal in dealing with a similarly, worded section which Allowed evidence of previous convictions, stated at 311:

"But a fairly recent line of cases in England have recognised, to adopt the summary in Adams on Criminal Law (2nd ed) para 2122 that the Court has an overriding discretion to exclude evidence rendered admissible by subs (2); the test being whether its prejudicial effect would make it virtually impossible for the jury to take a dispassionate view of the crucial facts, particularly when guilty knowledge is not a real issue in the case. The first fully reported instance of such use of the discretion in this field is the decision of Roskill J. at assizes in R. v. List [1965] 3 All ER 710. His approach was approved in R v. Herron [1967] 1 QB, 107, by a Court of Criminal Appeal cons sting of Havers, Veale and MacKenna JJ."

11. He turned then to the case of Regina v. LEUNG Tim & Ors [1980] HKLR 555 and referred to the judgment of Leonard J.A., at 561 where he said at 561:

" Secondly, is them discretion based on some concept of fairness to exclude , such evidence even though the ordinance renders it admissible. In R. v. List dealing with section 43 of the Larcency Act Roskill, J. held that there was such a discretion

'As a matter of principle the principle being that the trial judge has an overriding discretion to exclude any evidence the prejudicial effect of which hopelessly outweigh the probative value.

This view also prevailed in Herron, a case in which under the same section evidence of a previous conviction was sought to be tendered. There however, the jury might have allowed the evidence to influence them not upon the issue of guilty knowledge (for which issue alone the section rendered the evidence admissible) but on the issue of identity of stolen money. The Court of Appeal adopted and fellowed Roskill, J. In R. v. List and enunciated the principle that the trial judge

'has the discretion and overriding duty in every case to secure a fair trial.'"

His Lordship went on to say:

"The next question is : If he fails properly to exercise his discretion to exclude, what is the result I do not think it possible to regard it as other than fatal. Evidence of possession of other stolen goods is necessarily highly prejudicial ands once it is in its damaging effect on a jury is incalculable. Even although the was a risk the Legislature was prepared to take the Legislature was prepared to take, the risk subject to the judicial discrotion to exclude. One cannot say what effect its admission may have had on the jury."

12. It is the argument of Mr. McCoy that as the record does not show that the judge exercised his discretion and as the failure to exercise discretion in such circumstances is fatal the convictions must be quashed.

13. We observe initially that this was a case in which there was no jury. The "Incalculable", to use the words of Leonard, J.A., effect of the admission of such evidence upon a jury Is, therefore, not a factor. Such an observation does no more than place the matter in its proper; perspective any does not, we recognize, overleap the hurdle posed if evidence be wrongly admitted.

14. The question posed for us is whether it was wrongly admitted. The evidence was prima facie clearly admissible under s.29 (3). Further we can see no argument that could have been advanced which would have warranted the judge exercising his discretion to exclude it. It seams indeed that this must have been the view taken by the counsel of or the defendant as he made no objection to the admission of the evidence.

15. The contention seems, however, to be that the judge, without knowing of the existence of s.29 (3) and without realizing that the evidence did not refer to the goods the subject of the charges and thus could only be admitted by virtue of s.29 (3), might have somehow mistakenly admitted it Mr. McCoy then argues that whatever the judge might have done had he realized he had a discretion was not done and that this was fatal. We are not prepared to give any weight to this suggestion. We are satisfied, given the nature of the evidence, that the judge must have been aware that it was being tendered under s.29 (3) and that he took the view which was reinforced by the fact that no objection was taken, that there was no possible ground for excluding the evidence.

16. We reject the submission that the judge failed to appreciate that he had a discretion to exclude the evidence.

17. The second ground of appeal of Mr. McCoy is that "The learned Judge wrongly admitted and relied on such evidence which was not admissible". In this regard Mr. McCoy argues that evidence under s.29 (3) is only admissible to establish guilty knowledge and that as guilty knowledge it as not a real issue in this prosecution, evidence which went only to that issue was neither relevant nor admissible. He relied when making this submission on a passage in the extract from R. v. Rogers set out above. With all respect we find it difficult to understand exactly which meaning could properly be attributed to the following words in that passage "particularly when guilty knowledge is not a real issue in the case" in circumstances such as the present ones. When a defendant pleads not guilty to a receiving charge he puts in issue all material matters, one of which is of course, guilty knowledge. We find the following statement, made later in R. v. Rogers, much more apposite to the circumstance of the present case:

''To avoid any possible misunderstanding let it be added explicitly that when evidence of previous convictions qualifying under the statute is available, there is usually no reason to exclude it. The prosecution always has to prove guilty knowledge and very often there may be a real possibility that the defence will raise absence of sufficient proof of it as a separate issue-even if only as an alternative defence or only belatedly."

18. It was Mr. McCoy's, further contention that the evidence only became admissible after the defence had specifically raised the issue of, guilty knowledge. He submitted that where the defendant did not raise it until he had given evidence then the Crown could only present evidence under s.29 (3) in rebuttal. We do net consider this to be so. In a case, such as the present one, where a defendant pleads not guilty and puts all matters including knowledge, in issue then the Crown is, we are satisfied, entitled to present all relevant evidence upon the issues which they must prove to establish guilt.

19. Mr. McCoy referred also to a further Passage from R. V. LEUNG Tim & Others at 562 as fallows:

"I have come to the conclusion that Bradley is to be preferred to Smith & Currier. Bradley's Case held that the section renders admissible evidence of a most prejudicial kind so that only that expressly rendered admissible can be placed before the jury. The section must be strictly observed."

20. It was his initial submission that the evidence of the two witness as went beyond what was necessary to prove that a theft had occurred. During the course of argument, however, he conceded that there had been on failure to comply with the limits imposed by Bradley's Case and did not pursue this point further.

21. The third ground of appeal reads is follows: "The learned Judge erred in ruling that the property described in evidence by PW 10 and PW 11 was 'stolen goods taken in burglaries'". This point rests upon an examination of the evidence and relates only to the evidence of PW 10. It was submitted that there was a failure by PW 10 properly to identify the goods which he saw in the police station as the goods which had been stolen from his building site. Having looked carefully at that evidence we are satisfied that there is nothing of substance in this ground.

22. Mr. McCoy finally submitted that the trial judge did not demonstrate in his findings that he had made proper use of the evidence admitted under s.29 (3). There was certainly nothing in the Statement of Findings which would suggest that the trial judge used the evidence in any improper way. It is, however, true that he does not spell out the way in which he used the evidence. Only if one proceeds upon the basis that the trial judge was wholly ignorant of s.29 (3) might it be suggested that he used the evidence improperly. If we proceed upon the basis that he must be taken to have been aware of the terms of s.29 (3) which states that the "evidence shall be admissible for the purpose of proving that he knew or believed the goods to be stolen goods" then it seems to us that no conclusion could possibly be come to other than that he made proper use of the evidence.

23. We are satisfied that there is no substance in any of the grounds of appeal and the application for leave to appeal against the convictions is therefore