HKSAR v. HO WAI LUN

HCMA415/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.415 OF 2001

(ON APPEAL FROM STCC 323 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on 4 April 2001 of one charge of handling stolen goods. He was fined the sum of $1,000. He now appeals that conviction.

2. The facts were admitted by the defence and the prosecution called no further evidence. The facts were that at 1:25 a.m. of 11 January 2001, the appellant and another boy were stopped by two police officers in Tsing Yi Road, Tsing Yi. At that time, the appellant and the other boy were each holding a bicycle. Upon questioning, both the appellant and the other boy admitted the bicycles were borrowed from a third person and that the bicycles were both stolen property. Both of them were arrested. Later, the person from whom they had borrowed the bicycles was arrested and enquiries from him revealed that the two bicycles were stolen by him in early 2000. The boy accompanying the appellant when he was arrested was also involved in the theft. The bicycles were then kept by that third person. He and the boy with the appellant repainted the bicycles and in early 2001, the appellant borrowed the bicycle from him, knowing that it was stolen property.

3. The appellant gave evidence and said that on the day when he was arrested, he was riding the bicycle. He testified it did not belong to him and that he had borrowed it from the third man aware that it was stolen property. After using it, he had to return it to that person. He was not able to lend the bicycle to other persons nor was he able to sell it but they were the only limitations he gave as to his use of the bicycle.

4. The appellant was charged under the first limb of the offence of handling stolen goods, namely that he dishonestly received the goods.

5. Mr Griffiths, SC, counsel for the appellant, has taken me through a number of cases : The Queen v. John Wiley [1850] 2 DEN 37 (English Report) page 409 where the defendant accompanied two thieves into a stable and were found by the police with stolen goods in a sack on the floor. The three men were standing around the sack as if they were bargaining. It was found that the defendant had helped to carry the stolen goods to the stable and that he intended to receive them. It was held that he did not have sufficient possession and control over the goods at the time of arrest to constitute receiving.

6. It was held by the majority that the thieves still had possession of the goods as vendors and adversely to the defendant and had never intended to part with the goods until the bargain was concluded. He, therefore, had not received the goods.

7. In The King v. Watson [1916] 2 K.B.385, the court held that conviction must be quashed inasmuch as a recorder had not directed the jury that in order to return a verdict of guilty they must find that the prisoner was in possession of the stolen property either by himself or jointly with the receivers in the sense that he had either exclusive or joint control of it and the jury by their verdict had been left it in doubt whether the prisoner was in sole or joint possession of the property and whether he had possession in the sense of having control.

8. In Hobson v. Impett [1957] 41 Cr App R 188, the facts were that there having been a breaking and entering of a store, the appellant who lodged with the family of one of the burglars, helped the burglar to unload from a cart a sack which contained some of the stolen ingots from the store, knowing that it contained the ingots and knowing that they were stolen. He helped load those ingots onto a motor car by picking some of them up and carrying them from the premises occupied by the burglar to the motor car. The court held :

"It is essential that he should be in control of the goods either solely or jointly with some other person before he is liable to be convicted."

9. In this appeal, Mr Griffiths SC argues that whilst the appellant had physical possession of the bicycle, he did not have possession of it in the sense that his control over was sufficient to permit him to dispose of it by sale or otherwise, and that he had to return it to the person from whom he had borrowed it. It is argued that it is not sufficient possession and control to have amounted to a receiving, notwithstanding his dishonest knowledge. The definition provided by Archbold 2001, Ch.21 para.306 is :

"Since it is necessary to establish control of the goods by the defendant, proof that he has physically handled them is neither necessary nor sufficient. The defendant might have handled the goods physically without being in control of them or have been in control of the goods without physically handling them."

10. The question that the magistrate had to decide was whether a person who has physical possession of a bicycle and has had such possession for a period of days and is free to use it in any manner he wishes and to take it wherever he wishes but who is required at some undetermined day in the future to return the bicycle to the thief, has sufficient control over the bicycle to satisfy the element of receiving in the charge.

11. I am satisfied that the magistrate was right in finding as she did. Control of stolen goods could not be said to exist only when there was possession against all others with the exception of the rightful owner or the thief. There must be a point short of that when the ability to physically use and control the item amounts to receiving. In my view, that point is reached where, as in this case, the appellant had unfettered use and exclusive control of the bicycle for the considerable period of some days, taking it where he wished and doing with it what he wanted, subject only, at some future undefined time, to returning it to the thief. I hold that these circumstances are sufficient to establish an exclusive degree of control at the time of arrest that satisfies the charge.

12. The appeal against conviction is dismissed.