R. v. FUNG WAI LEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 109 OF 1995

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J U D G M E N T

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1. This is an appeal from Mr. Lung at the Kwun Tong Magistrate's Court. The Appellant was charged with taking a conveyance, namely taking a Honda motorcar without the consent of the owner between 8 p.m. on the 13th November 1993 and 4 a.m. on the 14th November 1993, contrary to Section 14(1) of the Theft Ordinance.

2. Briefly the Crown's case was that at 10 p.m. on the 10th November, a private Honda had been left in the garage, and on the 14th November at 4 a.m., the vehicle was found crashed, overturned and seriously damaged on the Kwun Tong bypass. A man was found lying in the second lane who died. The Appellant was seen climbing out of the vehicle and he was asked about the accident, he said he was driving too fast that he was the driver, and he gave the name of the other person. He was not charged apparently with more serious offence of causing death by careless driving or any matters in relation to that. The Defendant did not give evidence, and which consisted of the fact that the vehicle was stolen at the particular time and he was in possession of it about 7 hours later. It was clearly an inference type of case.

3. The magistrate in full and careful reasons said that he had considered all the evidence, that the Appellant was found to be in control and possession, that he elected not to give evidence, and therefore failed to give a credible explanation of the manner which he came to be in the car. I had thought originally that that was reversing the onus of proof. I think it was unfortunate the magistrate said that he elected not to give evidence., as he was not bound to, but clearly he had failed to give a credible explanation of the manner in which he came by it. The magistrate was referring to the standard directions given in cases of recent possession. It must be remembered in that type of case where a person is found in possession of stolen property, the inference that can be drawn is that the person is either the theft or the handler, and jurors must be told and make up their mind what he is. Unfortunately in this case, Section 14(1) is a global section comprising two manners in which a person may commit an offence. The charge against this man was that he had taken the motor vehicle. The magistrate said that :

"I drew the inference, which I found was the only reasonable inference that the appellant was either the one who had taken the vehicle or knowing that the vehicle was a stolen vehicle, had driven it and caused the accident."

In other words, he was not sure under which limb he could be convicted. He was not sure whether he was the person who had taken the vehicle, or the person who knowing that the vehicle was stolen had driven it and caused the accident. He had to choose one or the other. The charge was a charge of taking. If the magistrate was sure that he was the person who had taken the vehicle, he would have so found. At the conclusion, he says the Crown has proved its case beyond reasonable doubt. I do not see how that could follow, because the inference that is drawn is either he took it or he drove it knowing that it was stolen. The magistrate had to make up his mind which of those he was sure about. If he was sure about the first one, then the offence was committed. If he was not sure about that, but was sure about the other matter, then he should have amended the charge under Section 27 of the Magistrates Ordinance to driving the vehicle knowing that it was stolen.

4. In these circumstances, I would allow the appeal.

5. The real problem in this case is whether I should send it back for retrial. In normal circumstances, I would. However, the offence here took place in November 1993 which is 1½ years ago, and the Appellant has served already 5 months' imprisonment for an offence for which he had been sentenced to 12 months. He is, I consider, a very lucky person not to have been charged with more serious offences. I think he is also rather fortunate in the outcome of this case. At the end of the day, I, with some reluctance, allow the appeal and do not order a retrial.