LEE CHUN-HING v. THE QUEEN

CACC001327/1977

 

IN THE SUPREME COURT	Criminal Appeal
	1977 No. 1327

 

BETWEEN:
	LEE Chun-hing	Appellant
	and
	THE QUEEN	Respondent

Coram: Huggins, J.A.

Date of Judgment: 28th December, 1977.

 

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JUDGMENT

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1. In this case the Appellant was convicted on three charges, taking a conveyance without authority, driving without a licence and driving without third party insurance. However, on the first charge he was not convicted as charged but he was convicted of aiding and abetting the taking of a conveyance without authority and it is this fact which has caused me some difficulty in the case.

2. The evidence for the prosecution was that two police officers saw a motor vehicle being driven in a zig-zag manner and they signalled for it to stop. The officers said that the Appellant was the driver and the first officer said that, when he went up to the car, the Appellant was sitting in the driver's seat and said to him: "I saw the car parked there so I took it to drive it for fun." The police officers did not see the Appellant change places in the car with anybody else. Nevertheless, the defence was that the Appellant had in fact changed places with someone who had, it is alleged, been the driver and who was the person who had taken the vehicle without authority. That person, who was a boy of only 16 years of age, admitted that he had taken the car. The Appellant's story was that this boy had asked him to change seats with him and that when asked the reason for this request the other boy had said that he would tell him later.

3. There is no doubt that, at the time the police came up, on either story the Appellant was in the driver's seat. However, as I read the evidence of the defence, it was that any change of seats which took place was after the vehicle had come to rest. The learned magistrate in his Statement of Findings said that he found "the version given by the prosecution witnesses was the true version", he was satisfied that the charges had been proved beyond a reasonable doubt but (as we have seen) he convicted the Appellant not of taking the vehicle but of aiding and abetting the taking away of the vehicle. This would appear to involve that it was the other boy who had taken the vehicle and that this Appellant had been present and knew very well what was being done. At the same time, it would mean that this Appellant never drove the vehicle. If that be the true position the Appellant should not have been convicted of driving without a licence and without insurance.

4. In the course of our attempts to rationalize the verdicts Mr. Boase did suggest to me that perhaps the magistrate had in mind that both boys drove the car at some stage. However, counsel was constrained to agree with me that on the evidence as it stood that was not open to the magistrate, for there was no suggestion that the two boys changed places before the police came on the scene. I hope I am not doing an injustice to the learned magistrate but, for my part, I cannot see that the verdict of guilty of aiding and abetting the taking away can stand with the verdicts on the other two charges. It may well be that the Appellant ought to have been convicted on one or more of these charges, but I cannot say, on the papers before me, of which offence or offences he was indeed guilty and I have no alternative but to quash these convictions and to discharge the Appellant.

 

28th December, 1977.

 

Representation: