THE QUEEN v. LO KAR WAI

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1394 OF 1989

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BETWEEN

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JUDGMENT

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Penlington, J.A.:

1. On the 15th December, 1989 I allowed this appeal and said I would hand down reasons in writing at a later date, this I now do.

2. The background to the matter was that the Appellant was employed together with a Miss FU Wai Fun by the Video Compass Centre at Shop 38A, 343 Des Voeux Road West. They were both working in the shop on the 1st July, 1989. Miss Fu was charged with the theft of 16 cartridges of video tape valued $2,400, the property of the Video Compass Centre, and with forgery of a credit card slip relating to an account held by a Miss TANG Siu Fong on the International Bank of Asia. The Appellant was charged with theft of the credit card and with dishonestly handling the 16 video tape cartridges. Miss Fu pleaded guilty to the charges against her and gave evidence against the Appellant. The trial Magistrate found the Appellant not guilty of the handling charge relating to the tapes convicted him of the statutory alternative of handling contrary to Section 24 of the Theft Ordinance in relation to the credit card. He was bound over in the sum of $500 for 18 months.

The evidence

3. It was Miss Fu's evidence that on the the1st July, 1989 miss TANG Siu Fong came to the shop and paid a deposit by means of a Mastercard credit card in the sum of $600. The card was issued by the International Bank of Asia. However when she left the shop she forgot to take the card with her and Miss Fu put it away in a drawer. On evening of the 4th July she then decided to use it herself and she wrote out a credit card slip in respect of 16 pre-recorded cassette tapes for the sum of $2,400. She said that she consulted the Appellant before doing so and after writing out the forged slip she asked him to take the tapes home. The tapes apparently all related to a film called "River Mourn". That evidence was supported by Miss Tang herself who was not challenged.

4. Evidence was given by Mr. CHOI Wai Sum who said that he was also working in the Video Compass Centre and that on the 4th July after the shop closed both he and the Appellant were outside and he saw that the Appellant was carrying a large bag with tapes of "River Mourn". He said that the Appellant handed him two tapes which contained the first and last part of the film and said he could use these tapes at home but he should return them later. Mr. Choi duly returned the tapes to the Compass Video Centre two days later and put them in their proper place. However the proprietor of the shop saw him and he took the two cassette tapes to the police station. He denied knowing that Miss Fu had used a customer's card in order to buy the tapes.

5. Finally evidence was given by a police constable that he went to the Appellant's home and found 14 tapes. These all related to the movie "River Mourn".  He took a caution statement from the Appellant in the presence of his father. The statement was produced without objection to its admissibility but representations were made as to the weight the Magistrate should put on it. In it the Appellant admitted being given the card by Miss Fu to dispose of and he threw it away in Water Street.

6. Following the Crown's evidence submissions were made and the trial Magistrate found that there was no case to answer in respect of the charge of theft of the credit card but that there was on the alternative charge of handling the credit card. He also found that there was a case to answer in respect of the charge of handling the cassette tapes.

7. Following this the Appellant gave evidence and said that on the 4th July miss Fu gave him something wrapped in paper which appeared to be something like a credit card but he did not know what it was. He threw it away in a nullah in Water Street. After that he went back to the shop and when it came to closing time Miss Fu gave him a bag containing some tapes and asked him to take home. She agreed to do that as he thought that the tapes belonged to the company but that apparently there was not sufficient space to accommodate them. He took 14 boxes home. The other set was taken by Mr. Choi. He agreed that on the 13th July the police officers came to his home and that they found the 14 tapes which he had taken home on the 4th July. He took the police to the place where he said he had thrown away the thing which had been given to him by Hiss Fu but denied knowing that it was a credit card. He also denied knowing that the tapes had been obtained by Miss Fu by using a credit card belonging to a customer.

Findings

8. The trial Magistrate said that he accepted the evidence of Miss Fu and that he was satisfied beyond doubt that the Appellant knew that he was being asked to dispose of a credit card, that it was one which he had seen Miss Fu using earlier on and that he knew it was not hers. He therefore knew that when he was given the credit card by Miss Fu to throw away that she was stealing it and that he was then handling stolen goods. In respect of the charge of handling the tapes, however, he said he was not certain that the Defendant knew that the end result of the misuse of the credit card was the taking of the tapes. He did not find the Appellant to be either honest or reliable but he did accept that staff of the shop did take tapes home in the evenings and he was not therefore satisfied that the Appellant knew when he took the cassettes home that they had been obtained by improper means.

9. As regards the amended charge of handling the credit card the Magistrate was however satisfied that the Appellant did know that Miss Fu had stolen this card by keeping it and using it and that therefore he was guilty of handling it when he agreed to dispose of it in the way that he was instructed to do by Miss Fu.

The Law

10. I have had the benefit however of extensive legal submissions from leading counsel which were not before . Magistrate as to whether or not the handling by the Appellant of the credit card could be an offence under Section 24 of the Theft ordinance, Cap. 210. That section specifically states that

"a person shall not be guilty of handling stolen goods if such handling is done in the course of the stealing"

This provision was necessary to prevent instances of theft becoming handling as well. However as Professor J.C. Smith says in his book "The Law of Theft" at paragraph 408 with reference to the drafting of the Theft Act in the United Kingdom .

"the decision i.e. to keep handling as a separate crime adds further unfortunate complications to an already complicated offence."

It is a ground of appeal here that as the trial Magistrate has accepted the evidence of Miss Fu the Appellant was consulted by her before using the credit card and very soon thereafter he took it from her, agreed to dispose of it and in fact did so. This must constitute actions which were "in the course of stealing" the card.  Reliance is placed on R. v. Hale, 1978, 68 Cr. App. R. 415 where two men entered a house to rob.  One went upstairs and came back with jewellery while the other, Hale, threatened the occupant.  It was held that the appropriation was continuous and a plea that the appropriation was completed when the other man came downstairs with the jewels could not stand.

11. Here the evidence, which was accepted by the trial Magistrate was that the Appellant was told by Miss Fu what she was going to do with the credit card, saw her do it and then took the card with the intention of disposing of it. That, it seemed to me, was such the clearest possible evidence that his actions were in the course of the stealing and he could not be committed of the offence of handling under Section 24 of the Theft Ordinance. Accordingly I allowed the appeal and quashed the order binding voer the Appellant. I may, however, add that I was not referred at the hearing of the appeal to the very recent decision of the Privy Council in A.G. V. YIP Kai Foon, 1988, 86 Crim. App. R. 368 at 377. Lord Ackner said

"In this case the result of the jury acquitting the respondent of the robberies was to make the issue of whether or not he was the thief of the watches and the other goods no longer a live issue."

12. If I had been referred to that authority I may well have reached a different conclusions as it could well be argued here that the same position arose when the trial magistrate found no case to answer on the theft charge. However in view of the nature of the charge, the Appellant's age and all the other circumstances I did not re-list the matter or invite Counsel to address me on this authority.