THE QUEEN v. KWOK MOON YAN

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J U D G M E N T

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Penlington, J,A. Delivered the judgment of the Court:

1. The applicant was convicted in the District Court by His Honour Judge Leonard on 3 charges of burglary. He now seeks leave to appeal against chose convictions. All charges relate to events on the 24th. November 1987 In relation to the 1st charge there were 3 defendants involved D1, D2 and D3, the applicant being D2. It was alleged that they had entered the Chi Shing Knitting. Factory at Tai Yuen Street as trespassers and stole some 12 boxes of cotton yarn.

2. It is a ground for complaint by Mrs. Robertson who appears for the applicants here that the Charge Sheet in respect of all counts does not indicate to the applicant that the Crown's case was not that he actually entered the building with the other two but that he was the driver of the van into which the goods were either about to be loaded or were to be carried. However we are quite satisfied that the summary of fact served on the applicant does set out precisely what the Crown's case was and, while he was not represented at the beginning of the trial, for whatever reason and certainly later when he was there was no application for an adjournment. The applicant must have been well aware of the case which he had to meet. We do not think there is anything in that ground.

3. The evidence called by the Crown was in outline as follow se Mr. Lo Wah said that he saw 2. men - D1 and D2 - in the factory buildding on the 24th. He saw the men loading 12 boxes into the lift on the 19th floor where there was a factory the Chi Shing Garment Factory. He was suspicious and he left the men to go down on their own in the lift while he went to make enquiries. His suspicions proved justified. He saw to thy proprietor of the factory a Mr. Shunt, and Mr. Shum in turn telephoned down to the ground floor saying that these men should be intercepted. That message was received by Mr. Lee Kin Kwong and he went to the to carpark where he saw two men with 3 boxes. He stopped the men who abandoned the boxes and ran away.

4. A constable PC10513, who was on surveillance duty said he saw the van CF3087, driven by D2 and in which were D1 and D3. The van was parked at the back of the factory building. D1 and D3 got out of the van with a metal cart and went into the building. This was at 11.55 am. The constable went into the building himself and saw D1 and D3 on the 19th floor with 6 cartons. Another constable, 14193, said that at 12.25 p.m. he saw D1 and D3 run out of the building. They gestured towards the van. D2, Who was still in it, drove away from the cul-de-sac in which it was parked D1 and D3 ran after it but is passed them without having stopped.

5. The goods were recovered at the scene.

6. In relation to the 2nd charge, there was clear evidence that D1 and D3 entered the Universal Building. Factory on the 24th November and there they stole tolls of cloth.

7. Mr. So Kwok Ping, the proprietor of the factory, said that he found the goods to be missing at about 11 o'clock. Later on he was asked to go to the Wang Lik Inoustrial Building in Kowloon Bay and he identified his goods there.  A woman polite constable, 15166 said that at 1.45 pm on the 24th she saw the same van CF3087 with the same three accused arrive at the Wang Lik Industrial Building. Goods were unloaded by these 3 men and that included a carton, the subject t of this charge. The goods were put onto a trolley and were taken into she lift to the 3rd floor, There the defendants were all arrested

8. It was the Crown's ease in relation to the 3rd charge that the same defendants entered into the Shing Ka Garment Factory at Yue Lam Industrial Building, Kwai Ting Road on the 24th and stole 3 bales of raw cloth V Mr. Hui Kwong, a supervisor of the factory, said that the bales had been delivered on that any and de found them missing at half past one in the afternoon. Be again identified them at the Wang Lik Industrial Building.

9. Constable 14195 said that ac 1310 hours he saw the same van CF3087 parked outside the Yue Lam Industrial Building. He saw D3 come out with a bundle on a cart. He had apiece of pink paper in his mouth . D2 helped him to load the bundle onto the van and this operation was repeated on other two occasions. D1 then cane out from the building and the van was driven off by D2. He followed it, again to the Wang Lik Building, and the goods were found on the 3rd floor.

10. D1 and D3 made statements relating to the offences. The applicant did not but gave evidence. He admitted driving the van and he admitted going into the premises in Kowloon Bay where the goods were eventually found. However he said that he owned the van CF3087 and earned living hiring it out. Part of his normal duties would be also to lend a hand with the loading and unloading.

11. He said that D1 had hired the van, on the 24th November and he produced the copy of a receipt for $300 being the day's hire. The cords for hire were written on, his van. He agreed that the three factories had been visited over lunch time, but, there were people there and lie said he was not surprised when D1 had come out of the factory at Tai Yuen Street empty-handed. He said that the 1st defendant had beckoned to him but he denied that D1 was running at he time.

12. The trial judge considered his evidence and found him to be an unimpressive witness though he did not make any specific finding that he disbelieved him. However it may well be such was implicit in that finding Nevertheless the question is even if he did not believe the applicant, was there sufficient evidence here to justify his coning into the conclusion that D2 was a party to what was clearly an enterprise between D1 and D3 to steal textile goods from these factories and take them to the premises in Kowloon Bay.

13. The judge has carefully set out that he first of all considered each charge separately against the applicant. He also said that he did not take into account the fact that both D1 and D3 had implicated, the applicant in their confession statements.

14. The judge considered the question of the acts of the applicant in relation to the 2nd charge when the other two were clearly surprised while taking the cloth away and gestured to him to get the van out of the scene. He said the act of D1 and D3 in sending the lorry off without boarding it was suspicious, as was the act of D2 in driving it off. He does not however go beyond that. It seems to us that that was really he only evidence that would have justified the finding which the judge reached he went on to say that, as a matter of commonsense, if the other two were engaged on this enterprise of stealing textiles from factories that they would not have brought along someone with them to drive the lorry who was not involved because he knew them and could have been of assistance to the police in identifying them if he had been questioned. He said that on that basis he was satisfied that the applicant must have been a parry to the enterprise.

15. With due respect to the trial judge, we find that that is not a conclusion to which he was entitled to come. It may well be that there was grave suspicion that the applicant was involved in this enterprise. However there was evidence to support his claim that lie was simply the owner and hirer of the van and that he was doing what he was told to do on that particular day. We do not think that the judge was entitled to simply say that the other two would not have brought him along unless he was also involved.

16. The only act pointing towards D2's involvement was the waving off of the van from the factory which the judge did not find was such as to, on its own, convince him that the applicant was guilty.

17. The application is therefore granted. We treat the hearing of the application as the appeal which is allowed and he convictions quashed.

18. Mrs. Robertson instructed by Messrs So & Karbhari for D2, applied for costs. We adjourned that application for full argument