HKSAR v. ZHENG WAN TAI

CACC254/99

HEADNOTE

Criminal Law - handling stolen goods - unmanifested cargo - severance of charges - discretion.

Handling stolen goods - recent possession - application to "assisting" in "2nd limb" handling - R v Ball and Winning (1983) 77 Cr. App. R. 131 applied.

Court of Appeal directions for written argument 10 days prior to hearing date - importance of adherence to directions - advance preparation time needed by Court of Appeal and Respondent.

Grounds of appeal - citation of cases by reference to name only is insufficient where grounds are settled by counsel.

CACC254/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 254 OF 1999

(ON APPEAL FROM DCCC 1048 OF 1998)

"We desire and request that the goods be delivered to the signatory party claiming delivery or the order of such party in Hong Kong. To induce you to so deliver the goods without the prior production and surrender of bills of lading, we hereby represent and warrant as follows: (a) the signature party claiming the right of delivery is otherwise entitled to the possession of the goods and to the delivery thereof; (c) we have a financial interest in having the goods delivered as requested and we have full power and authority to make and issue this undertaking; (d) there are no holders of such bill or bills of lading other than the undersigned parties, nor any other parties are entitled to delivery of the goods."

".... Sea-Land employees gave evidence to the effect that on 15 October 1997 an e-mail was received from the company's office in Taiwan requesting or instructing them to amend the consignee's name in that manner, namely to substitute the name Geelong Industries Ltd. as the consignee, with a telephone number provided for the consignee. That is, in fact, the same telephone number as appears against the consignee's name in the Arrival Notice. On receipt of this fax, the employee checked to see whether the consignee had yet applied to uplift the container and on ascertaining that he had not done so, she amended the consignee's name in the computer in terms of the request in the e-mail.

On the same date, 16 October, Mr. Wong of Asian Transportation Company received instructions from Ka Fung Industries to remove the container and transport it to the Pacific Terminal in Tsing Yi. He was instructed by Ka Fung to get the Import Release Order from 'Wong Wan-tai', and was given his mobile phone number to contact him at. (I should add that there was evidence that the defendant used to be called Wong Wan-tai and he changed his name by deed poll in 1995 to his current name Zheng Wan-tai.) Mr. Wong of Asian Transportation Company duly contacted this person at the mobile phone number given and arranged to meet him. The person was the defendant. Mr. Wong knew him; they had done business previously together. The defendant gave him the Import Release Order which he had obtained from the Sea-Land offices earlier that day. The following day Mr. Wong gave the Import Release Order to his tractor driver who then used it to secure the release of the container, which was then transported as instructed to the Pacific Terminal in Tsing Yi, to await instructions for its further disposal."

"Regarding this container, it's my friend Liao Huan Cheng from Taiwan who asked me to help him to change the bill receipt. The motorcycles didn't belong to me."

"(1) Any person who -

(a) imports any unmanifested cargo; .....

.... shall be guilty of an offence .....

(2) It shall be a defence to a charge under this section if the defendant proves that he did not know and could not with reasonable diligence have known that the cargo was unmanifested."

"The appellant pleaded not guilty in the Magistrates Court to two charges, each alleging offences under the Prevention of Bribery Ordinance (Cap. 201) ("the Ordinance"). The first charge alleged that he had acted contrary to s.3 of the Ordinance when he being a Crown servant (a police constable) accepted an advantage by way of a loan of $2,000. The second charge alleged that contrary to s.4(2)(a) of the Ordinance, he as a public servant accepted an advantage as an inducement, reward or the like on account of his past or expected performance of an act in his capacity as a police constable.

The two charges were heard together.

(The appellant's) first ground of appeal was that s.10 of the Magistrates Ordinance did not authorise the joining of the two offences.

The vital difference between the two offences was that on the s.3 offence no presumption arose, whereas on the s.4 offence a rebuttable presumption did arise. The nature of his defence to the s.3 charge was such that he would not have had to give evidence, whereas to make good his defence on the s.4 charge he would have had to give evidence."

"The appellant's case in relation to the s.3 offence was that, although he had been paid money, the payment was not an advantage within the meaning of the Ordinance. His case in relation to the s.4 offence was an admission that he had accepted an advantage within the meaning of the Ordinance but a denial that that advantage was accepted for a corrupt purpose. He could have pursued his defence to the charge in relation to the s.3 offence without giving evidence. He could not have pursued his defence to the charge in relation to the s.4 offence without giving evidence.

Where an accused faces two charges in the one information there must be a risk that he will be caused embarrassment in his defence if the prosecution can invoke the aid of a presumption in support of one charge but not in support of the other. Whether that risk is real or not depends upon the nature of the defendant's defence to each charge. In many cases he may not be prejudiced or embarrassed and may well consider that his pursuit of justice will be aided by a joint hearing. If so, it would be consonant with the ends of justice for the magistrate to hear the charges jointly. But, equally there may be cases where the ends of justice will not be satisfied if through the joinder of 'presumption' and 'non-presumption' charges an accused person may run the risk of incriminating himself on one charge in order to have the advantage of exculpating himself on another. The difficulty is that an informed opinion as to whether an accused will be prejudiced or embarrassed in his defence needs assistance from the accused himself. It seems to me, therefore, that where multiple charges are properly joined and the proof of some, but not all, is aided by a presumption or presumptions, then the case has a special feature requiring the exercise of the magistrate's discretion under the proviso to s.10(2). That discretion cannot be properly exercised unless he is expressly informed by the defence whether it will be prejudiced or embarrassed by a joint hearing. That, in effect, means that a magistrate, in such cases, is under a duty to make that inquiry in order to ensure that he does have jurisdiction to continue with a joint hearing."

"According to the instructions which Mr. Turner had from the appellant, he wished to give evidence on the burglary count but he did not wish to give evidence on the conspiracy count. Before the trial judge Mr. Turner did not explain the reasons for his client wishing to adopt this course, but before this court he accepted that the reason was because his client was conscious that if he gave evidence and was cross-examined in relation to the conspiracy charge, he would be compelled to make admissions which would incriminate him. Mr. Turner submits that in circumstances where a defendant wishes to give evidence on one charge but does not wish to give evidence on another charge, to try the counts together deprives him of his right either not to give evidence or his right to give evidence in relation to only one offence. Mr. Turner concedes that the two counts were properly joined but submits that the court still has a discretion to sever the counts where this is required in the interests of justice. In circumstances where, if there is not a severance, a defendant will have to make an election against his wishes either to give or not to give evidence in respect of an individual offence the only way the discretion can properly be exercised is to sever the indictment.

Mr. Turner acknowledges that if the counts were severed there would be the inconvenience of two trials, but he points out that all the evidence could be called at both trials and he submits there would be no question of the prosecution being prejudiced as a result of there being two trials apart from the administrative inconvenience and expense of two trials. He submits that administrative convenience cannot be allowed to override the rights of a defendant.

In considering Mr. Turner's submissions, the starting point must be the provisions of section 1 of the Criminal Evidence Act 1898, which removed the bar on an accused person giving evidence at his own trial. Section 1, so far as relevant, provides:

'every person charged with an offence .... shall be a competent witness for the defence .... Provided as follows (a) A person so charged shall not be called as a witness in pursuance of this Act except upon his own application, .... (e) a person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged; (f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless ....'

Although the 1898 Act refers to offence in the singular, it must be treated as applying equally to situations where a person is charged with offences in the plural and regarded as giving the defendant a choice of either giving or not giving evidence in relation to all the offences at the trial on which he is properly indicted. In the ordinary way if offences are properly joined in the same indictment then there can be no question of a defendant having in effect the right to have the indictment severed because the defendant believes that he might wish to give evidence in respect of one count and not another, which would be the consequence of Mr. Turner's submission. It would be entirely a matter for the discretion of the trial judge as to whether or not the indictment should be severed.

In considering whether to sever the indictment the provisions of section 5(3) of the Indictments Act 1915 must be borne in mind which provides:

'Where before trial or at any stage of a trial the court is of the opinion that the person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial on any count or counts in such indictment.'

In exercising his discretion the judge can take into account the practical consequences of ordering separate trials including the expense and inconvenience to witnesses that will result as well as the circumstances of the defendant. While the right of a defendant not to give evidence must be recognised and weight can be given to the desires of the defendant, it has to be borne in mind that whether or not the indictment is severed the defendant can change his mind about his wishes as to giving evidence and because of this there would be a risk that in some cases applications would only be made for tactical reasons.

Certainly in the circumstances of this case, the Court would not dissent in any way from the decision of the learned judge that he was not required to sever the counts of this indictment. The two counts were closely inter-related and it was obviously desirable that they should both be dealt with together at the one trial." (Emphasis added.)

"The judge erred in applying the doctrine of recent possession .... when it is alleged that the Applicant handled for another person's benefit."

"The second charge is one of handling stolen goods by dishonestly assisting in the retention, removal, disposal or realization of stolen goods by or for the benefit of another person. Perhaps we should pause here to stress that the doctrine of recent possession is wholly irrelevant to this other method of handling stolen goods, namely, dishonestly handling for another person's benefit. See R v Sloggett [1972] 1 QB 430 at 433-434, [1971] 3 All ER 264 at 267, (1971) 55 Cr App R 532 at 537, per Roskill J. (as he then was)."

"(Counsel) who appears for both Winning and Ball, submits that the learned Judge misdirected the jury in a passage which runs as follows: 'What about the handling charge so far as the other two are concerned? Members of the jury, a similar principle applies. If a defendant is found handling stolen property in the sense that he is in possession of it or in control of it or in physical control or has physical contact with it, assisting somebody else who has got possession of it to dispose of it for instance - as in this case the prosecution allege - very soon after the property is stolen, you may again think and the law thinks that may call for an explanation. It is entirely for you, but in the absence of some innocent explanation you are entitled to infer against those people charged with handling what the law calls guilty knowledge; in other words, that they knew or believed the property they were dealing with was stolen property.'

(Counsel) referred also to a later passage, but the substance of the misdirection which he alleges is contained in the passage which I have just read.

His submission shortly is this, that common sense suggests that a person in control of recently stolen goods should be asked to account for his possession, and an adverse inference should be drawn as to his state of mind should he give no credible explanation; that such an inference should not be drawn against a person who merely has physical contact with such goods and is acting under the direction of someone who has them in his possession. In short the so called doctrine of recent possession should apply only to those whom the juryfind to be in possession of recently stolen property and should not apply to those who are merely assisting other people to retain, remove, dispose of or realise such property.

There is no direct authority upon the submission which (counsel) makes, save for one short passage in Sloggett (1971) 55 Cr.App.R. 532; 11972] 1 Q.B. 430, to which I shall refer. None of the authors to whom reference is ordinarily made in such cases deals with the submission, save for Professor Griew in The Theft Act 1968 and 1978, (4th ed., 1982), at paragraph 13-23 on p.184, a passage to which I shall refer. The question has to be considered on principle and logic.

The so called doctrine of recent possession is misnamed. It has nothing to do with goods recently possessed. It concerns possession of goods recently stolen. It is not even a doctrine. It is in fact no more than an inference which a jury may, or may not, think it right to draw about the state of mind of a defendant who is dealing in goods stolen not long beforehand. It is based on common sense.

Stolen goods frequently pass quickly from hand to hand. Many of those who deal in them knowing or believing them to be stolen tell lies when they are asked to explain how the goods came into their possession. Others prefer to give no explanation. That has been the experience of the courts for generations. So when a defendant is found to have been in possession of goods recently stolen and either gives no explanation of how he came to acquire them innocently or gives an explanation which is patently untrue, it is the practice of judges to tell juries that they may, if they think it right, infer that he acquired them knowing or believing that they were stolen. The innocent man has nothing to fear from this. He has no need to lie. He will, as a rule, be only too willing to give his explanation. It is, in any event, an inference which a jury will only draw if they think it right to do so.

Before the Theft Act 1968 came into force on January 1, 1969, there was no offence of handling stolen goods. The governing provision was section 33 of the Larceny Act 1916, which made it an offence for a person to receive stolen property knowing that it had been stolen. Receiving meant receiving property into his possession or control. Section 22 of the Theft Act 1968 created the offence of handling. This provision is wider than the old one. It embraces two kinds of handling: the first is essentially the old offence of receiving and the second is what I shall call, for brevity, assisting.

The words of section 22(1) are as follows: 'A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.'

Inevitably every case in which the question arose prior to 1969 was a case of receiving, and many of these cases therefore touched on, or turned on, the question of whether it could be said that the goods passed into the possession or control of the defendant.

There is, in the view of this Court, no reason in logic or justice why, since 1969, it should be permissible to draw the inference where the defendant has received recently stolen goods into his possession, but impermissible to draw it when he is merely assisting somebody else to deal with such goods. The distinction between the two types of handling lies in the relationship between the defendant and the goods. In each his state of mind is the same, and it is in relation to his state of mind that the jury may think it right to draw the inference."

"In purporting to act on behalf of the named consignee, Geelong Industries Limited, in receiving this container, the defendant was acting fraudulently, on the evidence. The admitted facts are that Geelong Industries Limited is in the business of manufacturing watch straps and that at no time did it import this container or its contents, and it never authorised anybody to import it on its behalf. Nor did it at any time authorise anybody to use the company chop on any of the documentation involved. It is a further fact that one of its chops had gone missing in September 1997 following an exhibition in the Convention and Exhibition Centre in Wan Chai, and the chop had never been recovered."

"The doctrine of recent possession applies to these four motorcycles and I note, as I have already made clear, that the defendant's explanation for his possession of these recently stolen motorcycles was completely unacceptable and clearly untruthful."

"I note that in the present case, on the evidence, a copy of the manifest, describing the consignment as being a container-full of 1,200 cartons of carved wooden doors, was in the normal course sent to the Customs & Excise Department. This cargo would, therefore, have been subject to Customs & Excise duty in the normal way, as carved doors.

In my view, the only reasonable inference to be drawn from all the evidence, or to state it another way, an irresistible inference which falls from all the evidence, is that all of these motorcycles had been stolen, all 136 of them, and that the defendant at all material times knew that they had all been stolen. It was that knowledge which explained the deceptions which the defendant practised in dealing with the documentation and procedures necessary for securing the release of the container, and also the considerable lengths he went to conceal the fact that he was, in fact, the true consignee of this container. It was the same knowledge on his part that he was receiving a container load of stolen second-hand motorcycles which, in my view, caused him to be so uncomfortable, evasive, hesitant and unsure throughout his record of interview with the police, and to tell the lies which he told in that interview."

"As regards the charge (of importing an unmanifested cargo), the evidence was that it is the carrier's (Sea-Land's) statutory duty to submit a manifest in relation to each import to the Customs & Excise Department, describing the consignment. That was done in this case. Exhibit P18, a manifest describing the cargo as being wooden carved doors, was sent to the Customs & Excise Department The fact that this Exhibit 18 was, in fact, a copy of the document that was sent to Customs & Excise and was stored in the computer and retrieved from the computer on 29 December last year, presumably for the purposes of this litigation - does not introduce any doubt about the accuracy of the evidence that it was indeed a true copy of the manifest which was sent to Customs & Excise. I note that no suggestion was put to the relevant witness that it was not accurate."