LUI KA-YING v. R.

IN THE COURT OF APPEAL

1993, No. 221
(Criminal)

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J U D G M E N T

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Nazareth, J.A. (giving the judgment of the Court):

1. The applicant, Lui Kai-ying, was convicted on 27th April 1993 by His Honour Deputy Judge Li in the District Court of handling stolen goods, that is a Toyota car, and he was sentenced to two years imprisonment. He now seeks leave to appeal against his conviction.

2. The facts can now be very shortly stated in view of what has transpired at the hearing of the application.

3. In the very early hours of the morning of 13th January 1992, two police officers were on motorcycle patrol near the old Ah Kung Ngam pier. They saw a lorry fitted with a crane and a white Toyota Crown car, parked within the pier area and three or four men around the vehicle handling belts or slings. When they got closer to the vehicles, some one said, "Police coming" and the men ran off. One of them got into the lorry and reversed into a metal fence which brought the lorry to a stop and resulted in his being detained by the police. That was the applicant. In due course he appeared before Deputy Judge Li in the District Court on the charge of handling stolen goods.

4. The main issue, that concerns us and that emerged at the trial, was whether he knew that the vehicle was stolen. His counsel below raised the point and at p.3 of his reasons for verdict the judge mentioned it in the following way:

"Mr Adams, in final submission, employed a rather ingenious argument. He contended that, despite the cautioned statements, there is no evidence at all that the defendant knew or believed that the car was stolen property. It may be that the defendant knew or believed he was involved in some smuggling operation, but that does not mean that he is guilty of receiving stolen property as charged for goods being smuggled need not necessarily be stolen property."

5. It obviously caused the judge some concern. He dealt with it at the very end of his reasons for verdict, in a passage from which Mr Alderdice, QC, who appears for the applicant before us, has identified three main factors upon which the Deputy Judge relied. These are:

(i) that as a driver the applicant must have noticed that the car displayed a valid vehicle licence label;

(ii) that he must have seen through the windows that the ignition key hole was damaged; and

(iii) that he must have known that the key to the car was not available.

6. In the Deputy Judge's own words he concluded "In the premises, in the light of all factors and circumstances in this case, I have no doubt that the defendant knew that the car was stolen property."

7. Mr Alderdice concedes that there is evidence upon which the Deputy Judge could have come to the conclusion he did, but emphasises that he chose to rely upon the three factors mentioned. There is plainly no evidence to warrant those three findings or inferences.

8. Mr Stephen Wong for the respondent has very fairly conceded that and, in the end, also that he does not find himself able to go so far as to submit that the other evidence in this case is such that the judge would inevitably have come to his conclusion that the applicant knew the car was stolen.

9. In those circumstances it follows that the appeal must be allowed. Accordingly we grant the application for leave to appeal against conviction; we treat the hearing of that application as the hearing of the appeal and allow the appeal.

10. Mr Wong in making his concession has asked that we order a retrial. Mr Alderdice opposes that submission. He points to the length of time that has elapsed and that the applicant has been on bail. He says that this is not that serious an offence and now is no longer as prevalent as it was. We do not agree. This is a serious offence and having regard to the evidence that, it is conceded, could support the conviction, consider that this is an appropriate case to order a retrial.