THE QUEEN v. IU CHONG AND OTHERS

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JUDGMENT

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Silke, J.A.:

1. Nine defendants were tried and convicted in the District Court on two charges of burglary. The first charge related to a premises called the Casey Enterprise and the second related to the President Leather Fashion - both in the Argyle Centre.

2. In the early hours of the 14th January 1984 there were disturbances in the Kowloon area and a great many people on the streets. A very great deal of confusion generally prevailed.

3. Of those nine, seven appear before us seeking leave to appeal against their convictions. Two of those appeals have been determined. The 5th defendant, represented by Mr. Macrae, abandoned his application concerning his conviction. The 6th defendant was represented by Mr. Alderdice. Mr. Alderdice advanced such grounds as he could but the applicant had been positively identified as emerging from the "Leather Fashion" with leather goods and he had made admissions in a cautioned statement. Both his application and that of the 5th defendant were dismissed.

4. We are now concerned with those who were the 3rd, 4th, 7th, 8th and 9th defendants at trial.

5. It was the case for the Crown that both these premises, the "Casey" and the "Leather Fashion", having closed some time before 10:30 on the evening of the 13th January, were looted. At about 11:30 on that evening a police team from the Fourth Regional Crime Unit, Kowloon Police Headquarters were at the scene. They saw the looting taking place but because of the general confusion and difficulties that were being encountered at that time were unable to take direct action. They were undermanned.

6. At about 11:40 a group consisting of an indeter-minate number of persons both male and female were seen to come from the "Leather Fashion" premises, go diagonally across the road to the other side of Sai Yeung Choi Street and go into a premises which, on its first floor, contained an entertainment centre by the name of "Sze Kwong Ho". This group was followed by a police constable who saw some of them go to the staircase which led to the first floor. He was positively able to identify the 2nd defendant at trial - who is not before us - as the last person to enter. He was unsure of the exact number of people who did go into that "Sze Kwong Ho" Entertainment Centre.

7. The police party took up position and sealed off, according to their evidence, the whole of the premises. They remained in the neighbourhood of it until about 1:30 in the morning. At that time they entered the premises of "Sze Kwong Ho" and in it, at various parts, were found a total of nine males and two females. Also, in the "Sze Kwong Ho", some concealed and some unconcealed, were found leather jackets and fashion goods which were later identified as coming from the two premises. The nine males were arrested and eventually brought to the police station.

8. Because of the nature of the evidence and having considered the grounds of appeal which have been placed before us by Mr. Keane, with him Mr. Bell, who appeared for the 4th, 7th, 8th and 9th defendant's and by Mr. Alderdice, who appeared for the 3rd defendant, we asked Mr. Ridgeway, who appeared for the Crown both here and below, to advance argument as to why the convictions should stand. He has, at the conclusion of his address to us, and very properly if I may say so, conceded that he cannot take his case beyond this: that amongst the persons who were on the premises, some may have been thieves.

9. In our view, there is no evidence of possession which can be related directly to anyone of the defendants nor, generally, evidence that they, as individual members of the group, possessed the goods.

10. The "Leather Fashion" charge had as its basis the evidence of a group of persons seen coming from it with the leather goods and the finding of the leather goods; the "Casey Enterprise" charge had nothing other than the finding of the fashion goods in the "Sze Kwong Ho".

11. In these circumstances, we do not think that there was a case to answer in relation to the 3rd, 4th, 7th, 8th and 9th defendants at the close of the prosecution evidence. We would allow the applications for leave to appeal, treat the hearing as the appeal and allow the appeals, quashing the convictions.

12. We shall now consider the applications for leave to appeal against sentence by the 5th and 6th defendants. (The applications were adjourned pending the receipt of Reports.)