HO KAI NAM v. THE QUEEN

CACC000055/1972

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 55 OF 1972

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BETWEEN:
	HO Kai Nam	Appellant
	and
	THE QUEEN	Respondent

Coram: Rigby, C.J.

Date of Judgment: 9th February, 1972.

 

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JUDGMENT

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1. The appellant, who is aged 47, was charged with the offence of being in possession of property, in this case a watch, reasonably suspected of having been stolen or unlawfully obtained. To that charge he purports to have pleaded guilty.

2. The facts as then put forward before the court were that the police had stopped the appellant and searched him and found in his possession a lady's watch. Upon being questioned he said that the watch had been given to him by his wife and he was taking it to a watch shop for repairs. The police were not satisfied with that explanation and asked to see his wife. A little later the appellant then admitted to the police that what he had earlier told them was not true, that he had in fact picked up the watch from a table in a cooked food stall. He took the police to the cooked food stall but no owner of the watch could be found nor had any complaint apparently been made to the owner of the stall that a watch was missing or lost. He was then charged with this offence.

3. Mr. Lucas, Crown Counsel, has very properly brought to the attention of this court an earlier judgment of Huggins, J. in Criminal Appeal No.300 of 1971. The effect of section 30 of the Summary Offences Ordinance under which this charge is brought, is that a person who has in his possession anything which may be reasonably expected of having been stolen or unlawfully obtained and who does not give an account, to the satisfaction of the magistrate, how he came by that thing, shall be guilty of an offence and liable to the penalty therein prescribed. The effect of the judgment of Huggins, J., as I understand it, is that there can never be a simple plea of 'guilty' by the accused to a charge laid under this section. It is necessary that questions must be first put by the magistrate to the accused:-

	1)	as to whether or not he admits that he was in possession of the property, the subject matter of the charge;
	2)	if so, whether or not it was reasonable to suspect that such property had been stolen or unlawfully obtained; and
	3)	if so, whether he has any explanation of his possession of that property to offer.

It is only after those questions have been put by the magistrate, and recorded by him, that the magistrate is then in a position to make up his mind as to whether or not:-

	1)	the property, the subject matter of the charge, was in the possession of the accused;
	2)	it was reasonable to suspect that such property had been stolen or unlawfully obtained; and
	3)	the account given by the accused as to such possession by him could be satisfactory.

It is only after these questions have been answered that the magistrate is in a position to decide whether or not an offence under this section has been admitted.

4. I see no reason to disagree with the judgment of Huggins, J. and, in my view, it should be followed. It is manifest that in this case it has not been followed. No questions were put by the magistrate to the accused to give him an opportunity, if he so wished, to give an account of his possession of the watch. It is true, of course, that on the statement made by the appellant himself to the police that statement - to the effect that he had found the watch on a table in the cooked food stall and then appropriated it to his own use - constituted an admission of an offence of larceny by finding.

5. But that was not the charge brought against the appellant in this case. In the result, fortunate though it may be for the appellant, the conviction for an offence under section 30 of the Summary Offences Ordinance cannot stand. The conviction must accordingly be quashed and the sentence set aside.

 

Representation:

Appellant in person.

Lucas, S.C.C. for Crown/Respondent.

(Judgment delivered)