THE QUEEN v. WONG TIN-SANG

HEADNOTE

                Handling stolen goods - mens rea subjective - proper inference for recent possession.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 811 of 1984

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of possession of an offensive weapon (Charge A), resisting arrest (Charge B) and receiving stolen goods (Charge D). He was acquitted of assaulting a police officer (Charge C) and unlawful possession (Charge E).

2. Two police constables were on patrol in Tai Kok Tsui at 9:35 p.m, on 3rd September last year, when they saw the appellant and another man walking towards them. When the two men noticed the police officers the appellant, who was carrying a black handbag, walked out into the roadway, while his companion turned and walked back in the direction from whence he had come.

3. According to the officers, they stopped the appellant and said they wanted to search him, but he punched one of them and ran away. As they chased him, the appellant threw the handbag under a stationary goods vehicle. He then ran into a cul-de-sac and was caught but, after a struggle, managed to break free from the officers and the chase was resumed. He was eventually caught and subdued near the vehicle under which he had thrown the handbag.

4. In the handbag were found, inter alia, a knife, a ladies wristwatch and two identity cards, one of which was in the appellant's name. The other identity card belonged to a woman who gave evidence that it had been stolen from her in the course of a robbery on 30th August.

5. The appellant gave evidence and said he was stopped and arrested as he was searching for a place to urinate. He was given no reason for his arrest and he denied that the handbag was found as described. He alleged that the police found his own identity card in his pocket, not in the handbag.

6. The appellant received medical treatment after his arrest. He told the doctor that his head had been bumped against a car and that he had been punched in the chest. The medical report indicates that he suffered abrasions on the forehead and cheek, plus bruising on the chest and back.

7. The appellant told the court that he was assaulted by the police officers in Tai Kok Tsui Neighbourhood Police Unit in an attempt to make him admit possession of the handbag. He admitted in cross-examination that he had complained to the Complaints Against Police Office about a subsequent assault in the CID office, but that he had made no complaints against the arresting officers. He explained that he was concerned that they might give false evidence against him. These officers also suffered minor injuries and received medical treatment.

8. The magistrate did not accept the appellant's evidence. She found that the appellant's injuries were commensurate with the chase and struggle described by the police officers, rather than systematic assault after his arrest.

9. The appellant submitted on appeal that his identity card had not been recorded as having been found in the handbag. This point was also taken at the trial, but the magistrate was satisfied that the police followed the correct procedure by including it in his prisoner's property.

10. I was concerned whether the acquittals on charges C & E had any bearing on the credibility of the police officers. So far as the acquittal on Charge E is concerned, this came about because of the condition of the watch, which the magistrate described as elderly and battered. She found that no suspicion could attach to possession of such a watch. She was clearly right. This had no bearing on the credibility of the police.

11. The victim of Charge C had said that the appellant punched his lip as they struggled in the cul-de-sac. The magistrate found that there was nothing to indicate whether this was a deliberate assault, or a blow that had connected casually in the course of resistance to arrest. I accept that.

12. However, the victim in Charge B, PC 590, had said that the appellant had punched him at the first confrontation. The magistrate convicted the appellant of resisting arrest on this charge, not assault as charged. She was not satisfied that the evidence pointed to assault rather than pushings or shavings. I confess I find this hard to understand. If the appellant did throw this punch, it was certainly a deliberate blow and an assault. It came out of the blue and must have taken the officer completely by surprise. If she was not prepared to accept the officers' evidence on this point, should she have done so in respect of the handbag? She does not specifically say that she rejected their evidence about the punch. Indeed she was satisfied that they were honest and reliable witnesses and that the events of that evening had transpired in the manner they described.

13. I can only assume that she regarded the punch as a subsidiary matter, which may have been exaggerated by the officers. It is true that Police Constable 590 made no complaint to the medical officer about a punch on the chest, though he did complain about a punch in the buttock. Having regard to the magistrate's assessment of the police officers' evidence and her rejection of that of the appellant, I do not think I am entitled to interfere with her findings.

14. The appeal in respect of Charges A and B is dismissed accordingly.

15. So far as Charge D is concerned, counsel for the Crown concedes that the conviction cannot stand. In the first place the statement of offence is incorrect. Although the gravamen of the offence is receiving, since the 1968 amendment to the Theft Ordinance the offence is handling stolen goods. This is a matter that could have been cured by amendment, but unfortunately the magistrate misdirected herself on the mens rea involved in the commission of the offence.

16. She said she was satisfied that the time between the robbery and the finding of the identity card was so short that it was reasonable to infer that the appellant knew, or had reasonable cause to believe, that the identity card was unlawfully obtained, and that such recent possession established his guilt as a receiver of stolen property.

17. It may be that the magistrate confused this charge with Charge E. In the case of unlawful possession, the question of reasonable suspicion of possessing goods unlawfully obtained is relevant. It is not relevant in a charge of handling stolen goods. The test is subjective. Did the defendant actually know or believe that the article was stolen? If that is not proved, he must be acquitted. It is not enough that he had reasonable cause to believe it was stolen, let alone unlawfully obtained.

18. I should also point out that the inference of such knowledge or belief, based on recent possession, must be the only reasonable inference in the circumstances, and can be drawn only where the defendant has failed to give any explanation for his possession of the goods, or where his explanation is disbelieved. It is wrong to draw the inference directly from the fact of recent possession. R. v. Aves^(l) I allow the appeal in respect of Charge D and quash the conviction.

(1) 1950 34 Cr. App. R. 159