THE QUEEN v. TSE KAU

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V.-P. :

1. The defendant TSE Kau was charged in the District Court with two offences of theft. He was convicted of handling under both charges. The second charge relates to some 9,000 pairs of jeans worth $241,000, the property of one LEUNG Tin-chu. It is undisputed that these were loaded aboard a lorry which was parked at the roadside with its load aboard, on the night of the 28th to 29th May, 1984. During that night, some persons broke into the lorry and drove it off together with its cargo. These jeans had been crated in cartons ready for delivery to an overseas customer. Another lorry, BZ8261, was discovered by the police on the morning of the 7th June at Pat Heung in the New Territories. Upon that lorry was found a quantity of electric fans which are the subject matter of the first charge. In the vicinity was found a parked motor-car which was registered in the name of the applicant in September 1984. He himself was found in the vicinity on that occasion but gave an explanation for his presence which must have satisfied the sergeant who was on patrol there because he was not then arrested. He was arrested on the following day.

2. Eventually the police investigations led them to the discovery of the proprietor of the Tat Sang Company, Madam CHAN Suk-yee. She gave evidence for the Crown in which she identified the defendant as the person who had sold to her the 700 dozen jeans which are the subject of the second count.

3. She told the court that the defendant had approached to her on 2nd June with an offer to sell those goods which he described as water-stained. And on the 5th June he delivered some samples at her factory premises and ultimately the goods were delivered to her on about the 8th June. She paid $43,000 for them and it is common ground that this price was very greatly below the contract price with the legitimate customer. Her evidence was therefore the vital evidence against the defendant in respect of the second charge. She had sold these jeans to another person or other persons immediately after her buying them at this price from the defendant. The whole quantity of the jeans was eventually recovered by the police from premises owned by these subsequent buyers. Madam Chan also identified the defendant at an identification parade.

4. The defendant did not give evidence at the trial and there is no doubt that the testimony whichs tood against him on the second charge was formidable in the extreme. In dealing with Madam Chan's evidence the trial judge said:

"I rejected the possibility that she may have been a party to any offence connected with the jeans. She had paid $43,000 for the jeans, and although that was a very low figure in terms of their value, it was stills a substantial amount when buying a job-lot of 9,000 pairs on sample only and believing them to be water-stained."

Mr. Alderdice, who appears for the applicant, makes as his single ground of appeal the complaint that the trial judge should not have relied in this unreserved fashion upon the testimony of Madam Chan. In his grounds of appeal this contention is based upon the fact that there was uncontested evidence before the judge that the price to Madam Chan was less than 20% of the value of the goods. He contends that the judge should have considered Madam Chan be an accomplice and warned himself accordingly of the need for corroboration of her testimony as to all material issues.

5. Upon the hearing of this appeal, we have been informed of a fact which was not put before the trial judge. It appears that Madam Chan was giving evidence under Crown immunity. No blame can attach to the trial judge for the manner in which he dealt with her evidence since this vital fact was not made known to him.

6. Mr. Bruce for the Crown, contends that although this was the position the evidence of Madam Chan in respect of the sale to her of these goods does not appear to have been contested. That, however, is not the case. In cross-examination she was challenged as to the correctness of her testimony in identifying this applicant as the person who had sold to her the goods in question. The vital question of identification of the defendant was therefore in issue.

7. Had the judge been made aware of the status of Madam Chan in the eyes of the prosecution, it may be that he would have approached her testimony in a different way. Had he treated her as an accomplice, he would necessarily have referred to such matters as might afford corroboration for her testimony or, if not satisfied that there was corroborative evidence, he would necessarily have addressed himself to the question whether he was prepared to accept her testimony notwithstanding her status as an uncorroborated accomplice.

8. We think therefore that there was a materiel error in the trial though this was not due to any deficiency on the part of the trial judge. We do not think that the proviso should be applied in these circumstances. In respect of the second charge therefore, the application must succeed. The conviction is quashed and the sentence is set aside but we will order a retrial upon a fresh indictment.

9. So far as the first charge is concerned, Mr. Alderdice has fairly informed the court that he cannot find material grounds which he can advance against that conviction. It will therefore stand.

10. The applicant was sentenced to four years on each of the counts, the sentences to run concurrently. In passing sentence the District Judge very properly took into account the fact that there were two offences of a substantially similar nature and he regarded what was before him therefore as a course of conduct. He remarked that this was a factor demanding heavier sentences than would be for an isolated offence.

11. It follows as a consequence of our quashing the conviction on the second count that this court is now obliged to deal with the sentence on the first count as an isolated offence. We have consulted as far as possible in the time available the sentences imposed in the High Court and, although we have not available any information in respect of the sentences imposed in the District Court for individual offences of handling, we are of the opinion that a sentence of four years would be excessive for a single offence. We allow the application in respect of the sentence and treating the application as the hearing of the appeal in respect of sentence. We set aside the sentence of four years on the first count and substitute therefor a sentence of two years. The District Judge dealt with the suspended sentence imposed on the previous occasion and that order will of course stand.