THE QUEEN v. LIU KAM WAH

BETWEEN:

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JUDGMENT

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1. LIU Kam-wah appeals against his conviction on two charges of burglary, the particulars of which were as follows-

2. The magistrate finds, and this is not disputed, that the premises referred to in the charges were burgled on the dates in question and the property set out in the charges was stolen.

3. As he rightly says, the only question in issue was whether or not the defendant took part in the burglaries.

4. The case against the defendant on Charge (A) is based on his possession of a 'Cannon' camera, serial No. 4563890, which was stolen during the burglary on 18th January. The defendant pawned this to a pawnbroker on 25th June, 1986, that is to say 5½ months' later.

5. The defendant, who gave evidence, said that he had bought the camera from a person called KWOK Shing in "February or March" for $800 to $900. This explanation was disbelieved by the magistrate, who found as a fact that Kwok Shing did not exist and had been invented by the defendant and that the defendant did not come into possession of the camera in that manner.

6. The magistrate continued -

"I find that the defendant has not given any acceptable explanation as to how he came into possession of PW2's camera. I find as a fact that the defendant had come into possession of PW2's camera dishonestly and that he intended to permanently deprive PW2 of such property. Again I look to the doctrine of recent possession for assistance as the defendant, on his own admission, came into possession of the camera in February or March this year but the defendant previously said he bought it one  year ago. I find as a fact the defendant was in possession of the camera soon after the burglary on 16/1/86."

 

7. It is thus apparent that, on the magistrate's own findings, there was a substantial gap between the date of the burglary, 16th January, and the 25th June, when he pawned the camera or, if his evidence to this extent is believed, in "February or March".

8. If the mid-point of the latter period is taken, i.e. the end of February, this produces a period of approximately six weeks between the date of the burglary and the date on which possession of the camera can be said to have come into the defendant's hands. The question arises as to whether this can in terms of the authorities be regarded as recent possession.

9. If a defendant is found in possession of goods soon after they have been stolen, and he fails to give a credible explanation of the manner in which he came by them, a jury is justified in inferring that he was either the thief or else guilty of handling stolen goods knowing or believing them to have been stolen, contrary to section 24 of the Theft Ordinance.

10. What constitutes "recent possession" within the meaning of the above doctrine is a question of fact, which must depend upon the circumstances of each particular case.

11. In most of the cases to which my attention was drawn, the "possession" of the defendant occurred within a few hours of the goods being stolen. The longest period to which I have been referred was in R. v. Seymour⁽¹⁾. In that case, the defendant was convicted of receiving a gun knowing it to have been stolen, the only evidence against him being that he was found in possession of the gun "a few days" after its disappearance.

12. It is, in each case, for the jury, or the magistrate, to decide whether, in the circumstances, the interval between the theft and the moment of possession by the defendant is such that the possession can be regarded as "recent".

13. As a matter of common sense, the possession of a stolen article becomes less damning against the defendant as the interval of time, since the date of the theft, lengthens.

14. Without seeking to lay down any hard and fast rule, I should have thought that an interval of six weeks, save in special circumstances, was so long as to lower the probative value of the "possession" of the defendant, within the meaning of the term "recent possession", to a point at which prejudice so outweighs evidential value that it should therefore be disregarded.

15. On this basis, I think that it was unsafe for the magistrate to rely upon the doctrine of "recent possession" in relation to Charge (A).

16. On the second charge, however, the interval between the burglary and possession by the defendant was about two days. This seems to me to be an interval which a magistrate could reasonably regard as amounting to "recent possession".

17. That being so, it was open to the magistrate, on the basis of the doctrine of "recent possession" and in the absence of any acceptable explanation offered by the defendant, to convict him of burglary as charged in Charge (B).

18. In relation to that charge, counsel argued that the magistrate had been wrong to allow one of the witnesses to say that he had checked the appellant's criminal record book to see what offences he had committed. He added that he checked this record and informed Tsuen wan Police Station.

19. It is, I suppose, suggested that the fact that a criminal record book was consulted must have led the magistrate to assume that the defendant had a criminal record. I do not think that this is necessarily so, as I understand that the checking of criminal records is a routine matter, when a defendant is taken to a police station. It is, after all, an important factor in deciding whether or not he shall be immediately admitted to bail and on what sureties. I find no substance in that point.

20. In the result, therefore, I allow the appeal to the extent of quashing the conviction on Charge (A). The conviction on Charge (B) will stand. There is no appeal against sentence.

(1)    [1954] Cr. App.R. 68