The Queen v. Chan Chun Kam

CACC001407/1983

BETWEEN:

Coram: Roberts, C.J., Huggins, V.P. and Barker, J .A.

Date: 29th March, 1984.

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JUDGMENT

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Roberts, C.J.:

1. CHAN Chun Kam, who was convicted on two counts of robbery and sentenced to twelve years' imprisonment concurrent on each count, seeks leave to appeal against his conviction only.

2. It was admitted at the outset of the trial, under section 65(c) of the Criminal Procedure Ordinance, that the robberies charged in the indictment all took place on the dates stated and that each of the persons named in the indictment was robbed of the properties which were set out in the particulars of offence.

Count 2.

3. The defendant was acquitted on three other counts of robbery and convicted on counts 2 and 5. Count 2 related to a robbery which took place in premises known as Club Lucky 7 on 22nd November, 1982, during the course of which several persons were robbed of cash and personal valuables.

4. The case against the defendant on count 2 was based upon his recent possession of two Rolexwatches. These were taken from victims robbed on the early morning of 22nd November and were identified by their owners by the numbers which the watch cases bore.

5. These two watches were pawned at different pawnshops in Macau, on the same day as the robbery, by the defendant, who used his own name and produced his Hong Kong Identity Card.

6. A statement made by the defendant to the police on 9th February, 1983, was admitted in evidence. When asked about the pawning of these watches in Macau, he replied "Those two 'Rolex' wrist watches were given to me by LO Kin-man and were taken to Macau to be pawned for him. I did not take part in the case."

7. When the defendant gave evidence at his trial, he put forward two explanations as to how he came into possession of these watches, which were not only self-contradictory but did not accord with the story which he had given under caution to the police.

8. His first explanation in evidence was that he had asked POON Chi-kong, whom he met in the casino in Macau, for a loan. Poon replied that he did not have much cash but that the defendant could pawn his two watches. When asked, in examination-in-chief, "Did Mr: Poon tell you about the source of these two watches, or let you know anything about them?", he answered "No, he did not." He admitted that he pawned the watches in two pawnshops.

9. In cross-examination, however, he told a different story, saying "I asked Poon for a loan, but Poon said he didn't have enough cash, but that I could go and pawn his watch which he then handed to me, telling me to see how much I could get, and he would lend me the money. At that stage, his friend who was standing next to me also took off his wrist watch and handed it to me for pawning."

10. Criticism has been made of the manner in which the judge directed the jury in relation to the effect in law, on a charge of robbery, of the recent possession by an accused person of part of the proceeds of the robbery. The relevant passage appears at pages 18 and 19 of the summing-up -

"We have in law the doctrine of recent possession, that is, a person who is in possession of recently stolen property, he is entitled to be convicted of the offence of robbery. But in this case, not only is he found or was he found with those two watches shortly after the occurrence of the robbery, that is within the same day, but there is a statement which was recorded from him to the effect that he was given these two wrist watches to pawn by LO Kin-man.

Members of the jury, it is up to you to consider whether the accused had knowledge that these two wrist watches were stolen firstly, and whether because of his recent possession of that property, he himself had taken part in the robbery from which these two watches were acquired. You will of course, when you come to consider this matter, consider the evidence which the 2nd accused had given you from the witness box."

11. The judge was wrong, though this was a fault in favour of the defendant, to direct the jury that they must consider whether the accused had knowledge that the wrist watches were stolen. This would have been a perfectly correct direction if he had been dealing with a charge of handling: However, where the charge is one of robbery and the Crown is relying upon recent possession by the accused of property which has been shown to be stolen, the judge should direct the jury that it is open to them to convict the accused person if the only evidence is that the accused was in recent possession of the proceeds of the robbery. If the accused offers no explanation to account for his possession, or if the jury are satisfied that the explanation which he does offer is untrue, it is open to them to convict.

12. In the passage which I have quoted, the judge reminded the jury that they had to consider the evidence which the defendant had given from the witness box, but we think that he should have gone further and directed them in more detail in the manner which I have suggested.

13. It has been argued that the judge should have left the question of a possible alternative verdict of handling of stolen property to the jury, even though the possibility of such an alternative was never raised during the course of the trial by either the Crown or the defence. It is unreasonable to criticize a trial judge for not directing his mind to something which nobody, during the course of the trial, thought to be relevant to the proceedings. Nevertheless, we think that the judge should have left this alternative to the jury because, in his statement to the police and in the differing stories which he told in the witness box, he admits merely his possession of the goods, not any knowledge of the robbery or that the goods were stolen.

14. However, it is clear that the jury rejected the various stories which the defendant told and decided that his possession of part of the proceeds of the robbery, in the circumstances which were established, was sufficient to prove his participation in the robbery, remembering that he was found on the very day of the robbery in possession of part of the proceeds and was engaged in pawning them in Macau.

15. If the jury had been directed in the way we have suggested should have done on the robbery charge and further directed that it was open to them to find the defendant guilty of handling stolen goods, as an alternative to robbery on count 2, we have no doubt that they would still have come to the same conclusion, namely, that he was guilty of robbery. Therefore, we are satisfied that this is a proper case in which, although there was an omission by the judge and a degree of misdirection, the proviso should be applied in relation to count 2.

Count 5.

16. The case against the applicant on count 5 was overwhelming. He was firmly identified by two witnesses, who had more than a fleeting opportunity to observe him during the course of the robbery, which took place in the Hokkaido Japanese Restaurant on 20th January, 1983. Both witnesses identified the applicant at an identification parade which took place on 9th February. The judge directed the jury, in accordance with the Turnbull rules, as to the dangers of identification and as to the manner in which the jury should approach such evidence. We can find no fault in that part of the summing-up.

17. In addition, the applicant made a clear admission to the police under caution in a statement, which was admitted in evidence after a voir dire. In it, he said that he had gone with four other men to rob the Hokkaido Japanese Restaurant in Yim Po Fong Street, and that when the others entered he held a melon knife and kept a look-out at the entrance.

18. He made a further statement on 4th February when he was asked questions about an entirely different robbery; in which he said "I only took part in robbing the Hokkaido Japanese Restaurant".There is no substance in the arguments put forward on behalf of the applicant on this count.

19. We therefore grant the application for leave to appeal against conviction, apply the proviso in relation to count 2 and dismiss the appeal.

Representation:

Miss M. Moosdeen, assigned by D.L.A., for Applicant.

P. Dale, senior crown counsel, for Crown.