THE QUEEN v. WONG WAI PONG

IN THE COURT OF APPEAL

1995, No. 665
(Criminal)

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J U D G M E N T

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Mayo, J.A. giving the judgment of the Court:

1. The applicant seeks leave to appeal against his conviction for handling stolen goods.

2. He was charged with handling a stolen Acura Legend motor car. He made two statements to the police and there were various agreed facts.

3. At his trial before Her Honour Judge Bokhary he pleaded not guilty. He contested the admissibility of his statements but the judge was satisfied that they had been made freely and voluntarily.

4. He gave evidence at the trial some of which was inconsistent with the contents of the statements. Judge Bokhary believed the contents of the statements.

5. In the statements the applicant admitted that he knew a man called Wong Ngau who had asked him to assist him in loading stolen cars into a container for smuggling to China.

6. He had refused this request but had agreed to hire his car to Mr Wong for $2000. He knew that it would be used for transporting equipment which would be used in connection with the operation.

7. There was evidence that the applicant's Corolla motor car was found by the police at a road junction leading to Cheung Hing Fat sawmill at Fanling.

8. The Acura motor car the subject matter of the charge was found at the said sawmill together with a container which had been stolen. There was also some equipment which could be used for loading cars onto the container.

9. The main ground of appeal in the perfected grounds lodged was that there was no evidence to prove that at the time applicant agreed to hire his Corolla motor car to Mr Wong he knew that the said Acura motor car had been stolen.

10. It would appear from his statement that the arrangement which the applicant had struck with Mr Wong had been made two days before the Acura car had in fact been stolen.

11. Mr Donald who represented the applicant submitted that the facts of the present case were for all material purposes indistinguishable from those in R. v. Park 87 Cr.App.R. 164.

12. In that case counsel for the Prosecution had submitted that even though the arrangement had been made before the goods in question had been stolen it was possible to read s22(l) of the Theft Act in such a manner that the stolen goods could be read as including goods which are to be stolen in the future.

13. Section 22 of the Theft Act is the same as s24 of the Theft Ordinance Cap 210.

14. Woolf LJ as he then was referred to this submission at 173 of the report.

" In my view, this interpretation of Mr Worsley's is not correct. On the clear wording of the section, it still remains the position with regard to mens rea which has always existed in relation to handling and which used to exist in relation to receiving, namely, that the guilty knowledge must exist at the time that the offence is committed. If it is possible to have guilty knowledge within the terms of the section before the goods are stolen, this does not constitute the offence. The position is made clear in the view of this Court because the opening words 'a person handles stolen goods if,' and then there are enumerated the various circumstances which govern each of those circumstances. So you have to have stolen goods which are received or stolen goods in respect of which the person charged undertakes or assists in their retention, removal, disposal or realisation. Equally, you have to have stolen goods which are the subject of the arrangement which is dealt with in the final words of subsection (1) of section 22.

That section does, therefore, extend the circumstances in which handling occurs, but does not alter the requirement which has always existed: that the subject matter of the handling must in fact be stolen goods. It is not possible to rely upon an activity which took place prior to the theft as in itself amounting to the necessary actus reus to create handling, albeit that it may be possible to take advantage of the arrangements previously made when the theft has taken place. The appropriate charge in the circumstances where there is conduct prior to the theft is to lay a count of conspiracy as was the case prior to the amendments contained now in section 22 of the Theft Act 1968. The reason that is required is because the offence would not otherwise be made out."

15. We accept that this is a correct statement of the law. Even though the applicant was fully aware of the fact that his Corolla car would be used to assist in this smuggling operation he could not be guilty of handling stolen goods if the goods the subject matter of the charge had not yet been stolen at the time when the arrangement was made.

16. Mr Reading for the Crown contended that on the facts which had been found by Judge Bokhary the applicant was an accessory before the fact and thus could be charged as a principle offender. This submission is not in our view tenable. It was not open to the prosecution to charge Mr Wong with both theft and handling stolen goods and it is not known whether anyone else was charged with handling stolen goods.

17. This ground of appeal must accordingly succeed. The result of this is that we treat the application for leave as the substantive appeal, allow the appeal and quash this conviction.