HKSAR v. CHU CHI SUM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.483
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced three charges of burglary and one of handling stolen goods. He was also charged with unlawfully remaining in Hong Kong. To that last charge, he pleaded guilty but pleaded not guilty to the other four. He was found guilty of each after trial before Deputy Judge Patrick Li.

2. The particulars of the charges read as follows:

(1) that he, on or about 23rd January 1997, at Sai Kung, entered as a trespasser a part of a building known as Flat 15C, 2/F, Wong Chuk Wan Village, Sai Sha Road, and stole $500 Hong Kong currency.

(2) that he, having entered as a trespasser a building known as 6C, Tai Wan Village, Sai Kung, stole $300 Hong Kong currency, a K-gold chain, some food, a watch 'Casio G-Shock', seven old $5 Hong Kong currency banknotes and some banknotes and coins of Renminbi, Filipino Peso and Thai Baht.

(3) that he, having entered premises 2/F No.23, Nam Shan Village, stole $100 US currency, $1,000 Baht and $1,000 Peso.

(4) (the handling charge) that he had dishonestly undertaken, or assisted in the retention, removal, disposal or realization of certain stolen goods, namely a lighter, cash $2,216 Hong Kong currency, seven old $5 Hong Kong currency banknotes, cash $1,215 South American Nation currency, $2 Singapore currency, $1 Malaysian currency, $270 Taiwan currency, $160 Baht, $14,000 Yen, $1,000 Won, $505 Renminbi, a gold necklace, a wallet, a lighter with the words "Canteen U.S.", 3 stamps and a "G-Shock" watch.

He was sentenced to three years on each of the burglary charges, to 18 months on the handling charge, all of those sentences were ordered to be concurrent and he was ordered to serve a consecutive sentence of 15 months on the unlawful remaining charge. He now seeks leave to appeal against those convictions.

3. In the Perfected Grounds of Appeal, it was originally alleged that Grounds 2 and 4 were bad for duplicity. This ground was not in the event, pursued as it was conceded by Mrs. Wacks that the defect in a duplicitous charge is that it alleges more than one offence and that this had not occurred in the present charges. She proceeded upon the basis that the charges were, to use the words in her amended ground "defective and inconsistent".

4. The complaint is that these charges were defective because they were misleading as they particularized the same goods as having been stolen and/or handled on different occasions and that they were, therefore, bad in law and had led to an unfair trial. It is certainly true that the particulars in both charge 2 and charge 4, referred to a Casio G-Shock watch, seven old $5 bank notes and a gold necklace. There is no question that these were the same items. Charge 2 also particulariazed that there had been some bank notes and coins, Renminbi, Filipino Peso and Thai Baht and charge 4 alleged, inter alia, the handling of some Renminbi and Thai Baht.

5. PW1 gave evidence relating to charge 2 in which she clearly identified the watch stolen in that charge as one which belonged to her. That, however, was the only evidence from a civilian witness in relation to the offences. They were proved by an agreed statement of facts and by tendering the cautioned statements made by the applicant.

6. The admitted facts set out the full circumstances of each of the burglaries and in each one the exact amounts of money and the items stolen were detailed.

7. As regards charge 2, it detailed that cash HK$300 was stolen, a gold necklace valued at $500, some food, a G-Shock watch, some old Hong Kong bank notes, $5 bank notes and some bank notes and coins of Renminbi, Peso and Baht.

8. There were no agreed facts as regards charge 4 the handling charge.

9. There was no question that the burglaries had taken place and that the items listed in the agreed facts had been stolen.

10. As to charge 2 the judge, having accepted the evidence of PW1, in which she identified the watch, relied upon the first cautioned statement, Exh.16. The questioner initially set out the general nature of the case under investigation saying:

"This case occurred at the ground floor and 2nd floor, 6C Tai Wan Village, Sai Kung between 5:00 p.m. and 11:00 p.m. on 5th February 1997. At the time, someone entered the flat and stole $300-, a gold chain (K-gold) valued at $500, a number of food valued at $900, a Casio brand tropical green wrist watch (Model No.6600), a wad of old style Five-dollars bank notes of Hong Kong Bank and a golden old style five-dollar banknote of Standard Chartered Bank.

To this the applicant said:

"I attended (there) with my clansmen. They stole and gave me (these things)."

The gold chain, the Casio watch and the old style five-dollar banknotes were clearly dealt with in that charge.

11. When the applicant was further questioned, in Exh.16, about that offence, the following exchange occurred:

'Q. On page two of this statement, you wrote the words 'I attended there with my clansmen. They stole and gave me these things with pen yourself, did you go together? What was the time and date. What did they steal and give you?

A. I remember that the three of us walked along the hillside and reached a village. However, I do not know or remember what and where it is. We looked around and saw that the rear door of a house was not locked. Therefore, the three of us entered the house. As we were hungry, we took foods for eating in the house. Having finished eating, my two clansmen asked me to watch on ground floor for the return of anybody and they went upstairs for stealing. After a while, they finished stealing, went down to the ground floor and gave me the stolen things - a wristwatch and 7 bank notes in five Hong Kong dollars each. Thereafter we fled through the rear door. I remember that the date should be around early February and the time was 8:00 p.m. I do not remember the exact date.

Q. Do you know if your two clansmen have taken away other things from the above-mentioned house?

A. I do not know.

Q. Where are the above-mentioned stolen wristwatch and 7 five Hong Kong dollars banknotes each now?

A. They have been taken away by you, the police.

Q. Now, I show you the exhibits (11), a 'Casio' tropical green wristwatch and 7 old style Five-dollars banknotes being seized on your person, do you agree that the two articles were seized on your person? And how did you obtain the two articles?

A. I agree that the watch and money were found on my person. It was when my clansmen and I attended the house mentioned earlier on my clansmen stole inside and gave me them."

12. He plainly admitted receiving as his part of the proceeds of the burglary the watch, the banknotes and the gold chain and the judge convicted of that charge on the basis of those admissions.

13. As to charge 3, we do not need to detail the questions and answers in which the applicant admitted involvement. In that charge, it will be remembered that US dollars, Baht and Peso were stolen.

14. As to charge 4, the trial judge relied upon the cautioned statements and in particular upon questions and answers 24 and 25 of Exh.16 and upon Exh.20. Questions 24 and 25 were as follows:

"Q24 Now, I show you the exhibits seized on you. $2,216- Hong Kong currency (including coins), $1,215- of South America nation, two Singapore dollars, one Malaysia dollar, $270- Taiwan dollars (including coins), $160 Thai Bahts, 14,000- Japanese Yen, 1,000 Korean Won, $565 Renminbi and a tropical green water pot style lighter with 'Canteen U.S.' characters, do you agree that the above-mentioned articles were seized on your person? And how did you obtain the above-mentioned articles?

A. I agree these articles were found on my person. However, they were all stolen and given to me by my two clansmen and were not stolen by me. However, the $565 Renminbi were taken by me from Shenzhen and were not obtained by stealing.

Q25 How did you know the articles in Question (24) were obtained by stealing by your two clansmen?

A. When they gave me the articles, they told me that those articles were obtained by stealing.

15. In Exhibit 20, the money, the lighter and the circumstances of arrest having again been detailed, the applicant answers: "Those things were stolen and given to me by my clansmen." The judge relied upon those answers when convicting. They were admissions of receipt only of the money and the lighter and not, it is emphasized, of the other articles listed in the charge.

16. As far as charge 2 is concerned, no objection can properly be taken to the conviction on that charge. He was convicted on his own admission of stealing the articles set out therein. The watch, the seven old HK$5 notes and the gold chain were clearly identified as being among those articles.

17. Clearly that those articles should not have been included in charge 4. This, it seems, came about because they, having been found on the applicant, were wrongly included by the person responsible for drafting the charges in the handling charge and the trial then proceeded on that basis. It was a manifestly obvious error which someone should have corrected but no one did. Did that error cause any confusion to the defence which might have led to injustice. The items were clearly proved to have been the proceeds of the burglary in charge 2. There can, in our view, be no question of any confusion as regards the watch, the chain and the old style five-dollar notes. It must have been apparent to everyone involved, and, indeed, the address of the defence counsel shows that it was apparent to her, that they had been inadvertently included in charge 4.

18. It is, however, further suggested that some of the currency from charges 2 and 3 was also wrongly included in charge 4 and that this might have led to confusion and injustice. This can be answered by observing that the applicant specifically admitted in Exh.20 that the currency and the lighter had been given to him by his clansmen. The trial judge plainly, as we have indicated, relied upon those admissions when convicting of that charge. The applicant was not, we are satisfied, found guilty of possessing any goods other than those the possession of which he admitted in Exh.20.

19. We are satisfied that no injustice of any sort was done. The applicant was rightly convicted upon the basis of his admissions of stealing the goods listed in charge 2 and of handling such of the goods listed in charge 4 as he admitted possessing.

20. The application for leave to appeal against conviction must be dismissed.