THE QUEEN v. LEE KIN FAI

BETWEEN

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the Court.

2. The applicant, Lee Kin Fai, appeared for trial before His Honour Judge Yam in the District Court on a charge sheet containing 10 charges. Of those charges he was directly concerned with the sixth - handling of stolen goods, the particulars alleging that on 10th June 1989 at the Shun On Pawnshop he dishonestly handled a gold necklace knowing or believing it to be stolen; the eighth - the giving of false information to a pawnbroker, this at the time of the pawning of the necklace; the ninth - also giving false information to a pawnbroker, on 11th June at the same pawnshop; and the tenth - also giving false information to a pawnbroker, on 2nd July at the Wing Wan Pawnshop.

3. The remaining charges concerned his co-defendant Yeung Man Ying with whom we are not concerned.

4. The applicant was convicted of all four charges, he now seeks leave to appeal against his conviction on the handling charge only. A general probation order was made in respect of him.

5. We dismissed this application at the hearing of the appeal and we stated we would give our reasons later. This we now do.

6. The basic facts were not in dispute. It was the case for the Crown that the applicant went to the Shun On Pawnshop to pawn a gold necklace and there gave a false address to the pawnbroker. Then on the succeeding days, as particularised in the charges, he pawned other items and gave the same false address. That the gold necklace was stolen came from the evidence of the victim Tang Chi Yung who said that on 9th June in the evening he was confronted by four young men. He was forced to hand over his gold necklace to the gang, one of whom was a person named "Por Chai". The necklace was supposed to be a form of pledge for the joining of a triad society he having no cash on him at that time. He identified the pawned necklace recovered from the pawnshop. The pawnbrokers concerned gave evidence of the pawnings by the applicant.

7. The applicant gave evidence in his own defence. He explained that he had been given the necklace to pawn by a friend, the friend being under 18 and unable to go himself to pawn. He was doing him a favour. He said he did give the right room number 1518 of his address but the pawnbroker was speaking at the same time. It was only when he noticed the ticket that he saw the number was given as 408. He did not find it necessary to correct the pawnbroker and, as the address had been noted as room 408 on this occasion, he used the same address, wrong though he knew it to be, on the other occasions. This as he did not want his parents to know he had pawned the items. He denied knowing that the necklace which, as he said, he received from his friend was either stolen or dishonestly obtained.

8. In his careful Reasons for Verdict, the trial judge noted the short time between the robbery and the pawning and found this to equate with recent possession. He then went on - having made reference to R. v. Smythe (1980) 72 Criminal Appeal Report 8 in which the English Court of Appeal adopted a passage in Cross on Evidence, 5th edition at page 49 which he then set out - to say:

"The absence of an explanation is equally significant whether the case is being considered as one of theft or handling but he (sic) has come into particular prominent (sic) in connection with the latter i.e. handling, because persons found in possession of stolen goods are apt to say they acquire them innocently from someone else where the only evidence is that Defendant on a charge of handling was in possession of stolen goods, the jury may either infer guilty knowledge of belief (a) if he offers no explanation to account for his possession (b) if the jury are satisfied that the explanation he does offer is untrue."

 

So far so good but he then went on to say this:

 

"In view of the authority it is incumbent on me to decide here whether I can accept the Defendant on a balance of probability his explanation as to how he came into the possession of the gold chain."

He stated himself to be fully aware that the burden of proving guilt is always on the Crown and he then continued:

 

"..... and here in the case of recent possession the Defendant would have to offer an explanation as to why he was recently in possession of the item."

9. We accept that the trial judge would have been entitled to come to the conclusions he did as to the guilt of the applicant on the evidence but, as Mr. Saunders for the Crown conceded in the course of the hearing, the way the trial judge, perhaps inadvertently, went about the matter was to give the appearance of placing a burden of proof upon the applicant which should not have been there. It was for the trial judge to evaluate the explanations given in the light of the evidence in the case. He would have been entitled to believe or disbelieve them but it was not for the defendant to have to prove as, with respect, the trial appears to say "on the balance of probability his explanation".

10. In these circumstances, we felt sufficient unease to justify this Court in quashing the conviction upon the handling offence.

11. As was explained to the applicant at the hearing this has no effect upon the general order of probation made in respect of him which continues in respect those charges upon which he was very properly found guilty.