R. v. CHAN Wu-nam

IN THE COURT OF APPEAL

1992, No. 274
(Criminal)

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J U D G M E N T

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Mortimer J.

1. The applicant in this case was convicted after trial of three offences of handling by His Honour Judge Wesley Wong. On 25th June last year, he was sentenced to years' imprisonment concurrent on each count.

2. The facts of the matter are that between the 8th and 9th September 1991, there was a serious theft from the premises of Confetti Garment Manufacturing Limited. A total of 5,800 garments were stolen. The F.O.B. value of those garments was said to be nearly $700,000. The proprietress made a search of shops immediately afterwards and found some of her garments on sale. Police enquiries were undertaken.

3. It was discovered that very shortly after the theft, on 11th September 1991, the applicant had phoned the witness Mr. Choi and had sold him 700 of those garments for a total of $7,500.00. That was Count 1. On 12th September, the applicant offered over 1,500 silk pyjamas to Mr. Choi. When they were being delivered on 13th September and the applicant and another were counting them openly in the street the applicant was approached and was arrested by the police. Those facts relate to Count 2 in the indictment. Later the applicant took the police to his premises and there over 2,000 other stolen garments were found. Those relate to Count 3.

4. The prosecution case was founded upon the doctrine of recent possession. There was no dispute at the trial that the garments concerned had been recently stolen. So the prosecution submitted that the applicant was in possession of very valuable goods which had been recently stolen, and that he gave a false explanation for having them. The false explanation was based upon him giving two different names for the person from whom he said he had bought them. To support that account he produced a copy of an identification card which turned out to have been stolen and altered. He produced documents which he said were receipts, which were written on headed paper of a non-existent company which themselves were not consistent one with the other.

5. Also it was said he had sold the goods for a fraction of their value and the men from whom he said that he had purchased the goods could not be contacted by either him (the applicant) or by the police. This the prosecution said was sufficient to establish beyond reasonable doubt that the applicant knew that those goods were stolen.

6. The applicant's defence was that he had purchased them innocently, perhaps from the person who had stolen them. So that he himself had been misled. Concerning the names which he had given for that person, he admitted he had given more than one but said it was a mistake. When the police said he had used the name 'Wong Chai' he said he had not done so and that was their mistake. The false identity card had been provided by that person, as had the receipts with the false company name. In particular, he relied upon the fact that he was dealing with these goods quite openly in the street and that the goods were still in the cartons which had also been stolen and were easily identifiable. He contended that the price bargained for between him and his purchaser was in all the circumstances a proper trade price; that he purchased them for a proper trade price; that he was 37 years of age; that he was of previous good character; and he had been in the trade himself for six years.

7. There are two matters with which we wish to deal. The first is this. In his conclusion, the judge relied for his finding that the explanation given by the applicant for his possession of the goods was false upon erroneous matters. He said that:

"From the evidence and his contradictions I came to the conclusion that Wong Chai or Chan Chai is just a figment of his imagination. He possessed the stolen goods shortly after the burglary. The price he sold to Choi was just a fraction of the value of the stolen goods. The whole lot of stolen goods worthed between $600,000 and $700,000. The irresistible inference to be drawn from such evidence is that he knew the goods were stolen and he tried to lie to get out of it when police interviewed him and when he gave evidence in Court."

8. One of the important matters therefore, upon which the judge relied was that the applicant sold to Choi "at just a fraction" of the value of the goods. Regrettably, this finding cannot be founded upon the evidence given at the trial. Mr. Casewell for the Crown finds it impossible to support that particular finding. The reason is this:

the owner of the goods gave general evidence as to the total value upon which the goods had been sold to Italy. Thence came the value of $600,000 to $700,000. The goods purchased by the applicant were only 60% of those goods. They consisted of a number of different types of garment each with a different value. There was therefore no basis upon which the judge could found his view of the value of any particular item.

9. More importantly, the judge having considered the evidence of Mr. Choi with some care accepted the whole of his evidence. Mr. Choi had given evidence to the effect that he bought these goods at a proper market value, and indeed that he was likely, in relation to the skirts he had purchased, to suffer a loss. Nowhere in his judgment does the judge evaluate that evidence so as to reach the conclusion that the sale was at a fraction of their value. On this matter, the judge's reasons are flawed.

10. There is a further matter. In evaluating the case, the applicant's age and good character were of great importance. It was a main stay of the defence. In considering the applicant's good character, the judge said at p.6 of his reasons:

"He said he has a clear record and had been in the trade as a go between of the buyer and seller of garments for six years."

This was in the course of dealing with the applicant's evidence. Having said that the judge does not refer to the matter again.

11. We preface our remarks by a reference to Section 80 of the District Court Ordinance. This does not require a District Court Judge sitting without a jury to meticulously set out all obvious matters. But in this particular case, having regard to the vital importance of credibility to the defence and the reliance placed upon it and especially having regard to the point made in the defence that the applicant may have been acting as an innocent dupe throughout, it was incumbent upon the District Judge to carefully evaluate and in these circumstances to set out the effect which the applicant's good character and age had upon his mind. We are not to be taken as saying that it is incumbent upon a judge to give himself and to articulate what is called a "Berrada Direction" in each case. See R. v. Berrada (Note) (1989) 91 Cr. App. R.131 and R. v. Vye and Ors. [1993] 1 WLR 471. Suffice it to say that in this case because of the importance of credibility, the judge should have carefully dealt with the effect of the applicant's good character under both 'limbs' of Berrada - as to its effect upon the applicant's credibility and as to the effect upon the proof of guilt. In this respect the reasons were also flawed.

12. In these circumstances and for the reasons we have given, we give the applicant leave to appeal. We treat the application as the appeal and we allow the appeal against conviction.