THE QUEEN v. LAM CHI HUNG

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JUDGMENT

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Hon. Yang, C.J.:

1. The applicant (D3) in the Court below was convicted after trial before Her Honour Judge Chan of a charge of taking a conveyance without authority, a charge of possession of an imitation firearm (a toy pistol) and a charge of possession of an offensive weapon (a knife). it is against these convictions that he now seeks leave to appeal.

2. The applicant did not give evidence on the general issue.

3. The prosecution's case could be confined within a fairly narrow compass. There was evidence that a Mr. Tsang who was the owner of a Honda Civic bearing Registration No. DG 1524 discovered the loss of his car on the 29th April 1990. He reported the matter to the police. On the 30th April, some thirty hours after the missing of the car in question, the police who had been keeping observation inside the Wilson Carpark at Mei Fu Sun Chuen noticed three men walking towards a car which happened to be the car in question. Photographs were taken by police officers of the movements of these men, one of whom being the applicant. The applicant was seen to enter the left hand side of the front of the car and he seated himself next to the driver who was one of the three men - a man who was photographed as wearing a dark coloured T-shirt. The third man was seated in the rear. The applicant was then seen to alight from the car and, together with the man seated at the rear, he went over to the driver and it was obvious to the police officers that a conversation of some sort took place and at the same time the two men outside the car seemed to be directing their attention towards a spot inside the car near the driver.

4. Then the applicant was seen to be carrying a carrier bag (which has been described as the Giordano bag carried earlier by the man in the dark T-shirt) towards the boot of the car. The applicant opened the boot of the car and was seen by the police officers to be "sorting things" in the boot. He then went with the Giordano bag to a spot in the carpark some distance away from the car and deposited the Giordano bag there. He returned to the car. The car was reversed out of the parking space and driven towards the paying booth. At that point of time the police came forward to intercept the car whereupon the three men inside alighted and fled. The applicant was eventually caught by the police and taken back to the car where he acknowledged to PW7 that there were a pistol and a knife in the boot, at the same time nodding towards the boot, a gesture which was witnessed by PW4.

5. An examination of the car revealed that the car door was damaged. The ignition switch was damaged and the car driven without the use of an ignition key. There was also evidence from the owner of the car that when he left it on the 28th April there was no pistol or knife inside. Upon this evidence, the learned trial judge came to the conclusion that the applicant took part in the removal of this car without the authority of the owner and was in joint possession of the toy pistol and the knife together with his co-accused.

6. On the evidence we are satisfied that the judge was entitled to come to the verdict as she did, using her commonsense as a jury would in a jury trial, and draw the inferences which in our view were irresistible. Plainly the action of the applicant indicated that he had knowledge that there was no authority to remove the vehicle and that he knew the toy pistol and the knife were inside the car, and his action indicated that he took part together with the driver in the removal of that car and in the joint possession of these two items.

7. Before concluding, there is one passage in the judgment we think we ought to refer to, and it is the judge's finding that there must have been a change of the contents of the Giordano bag, i.e., by removing the toy pistol and the knife from the bag to another bag in the boot of the car and by replacing them with what were eventually found in the Giordano bag placed at some distance from the car, namely, a screwdriver, a ruler and a hammer. We do not think the judge was entitled to come to that conclusion, which is essentially speculative, but this criticism is not fatal to the verdict because there was ample evidence for her to conclude that the defendant was guilty as charged. Indeed in her Reasons for Verdict, she stated that if she were wrong in reaching the conclusion as to the exchange of items in the Giordano bag, then she would rely on the other evidence which was available before her and that other evidence was conclusive of the applicant's guilt.

8. For these reasons, we dismiss the application.