Cheng Chun Wah v. The Queen

CACC000143/1980

Attempted theft - duplicity of charges

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 143 OF 1980

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Coram: Addison, J.

Date of Judgment: 29 February 1980

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JUDGMENT

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1. This is an appeal against conviction entered by the learned magistrate sitting at North Kowloon on the 11th January 1980 when he convicted the appellant on two charges, one of attempted theft and one of resisting arrest.

2. The appellant was seen by two police officers to be meddling with the handbags of two ladies while they were examining some clothing offered for sale on a hawker stall in the market at Far Yuen Street, Kowloon.

3. The particulars of the 1st charge are as follows:

"Cheng Chun Wah you are charged that on the 28th day of October 1979 at Kowloon, in this Colony, you did attempt to steal from two unknown females their properties."

4. This inelegantly worded charge on the face of it accuses the appellant of two offences.

5. The evidence in the case is that the appellant on the 28th October 1979 at a market in Far Yuen Street, Kowloon, tried his luck at stealing from a shopper by opening the zipper of a lady's handbag but was frustrated when the victim became aware of what was happening and walked away. The appellant, it is said, then went to other stalls nearby and after an interval of ten minutes returned to the same stall where he made a second attempt. According to the evidence of DC 16630 the appellant next tackled a woman who was holding a net handbag. The officer gave evidence that he saw the appellant use two fingers of his right hand to open her bag and thereafter he inserted his left hand into her handbag. This was done while the appellant was holding a newspaper, apparently for the purpose of hiding his activity. DC 16630 then went up to him, informed him he was a police officer and announced he was arresting him for pick-pocketing.

6. According to DC 16630, Ho Chi Yin, the appellant took what can only be called a swipe at him and tried to run away. The officer was knocked backwards against the stall. He chased the appellant and caught hold of him outside the jockey club in Nullah Road. There was a scuffle between them resulting in a stall being overturned and a girl being knocked to the ground.

7. According to the officer he and the appellant rolled on the ground for 2 or 3 minutes before DC 16767 arrived. Together they managed to take the appellant to a nearby staircase where he was handcuffed. DC 16767 had been on duty with the arresting officer at the market and had been watching the events.

8. Such is the brief outline of the case for the prosecution.

9. The appellant at his trial did not raise the point that the first charge was bad for duplicity and the learned magistrate appears to have overlooked it. This court has raised it on the appeal.

10. DC 16630 was asked in evidence why he did not arrest the appellant after he witnessed the first incident. His answer was:

"

At that time I did not know whether the defendant knew the victim. Moreover I wondered if he might explain that it was an inadvertent contact."

11. He was asked what he meant by an "inadvertent contact" and he replied:

"I cannot be certain. That is why I continued to keep an eye on him."

12. He was sure in his mind however that the accused touch the first victim's handbag and the zipper. He added:

"Normally we have to gather sufficient evidence before making an arrest. Moreover when we saw him first time we did not know whether he knew the victim."

13. As to the second incident the officer was asked in cross-examination whether the alleged user of the newspaper by the appellant hindered his view and he replied:

"Defendant could cover his action of inserting his hand into the handbag but as bag was a net one I saw that he had inserted his hand into the bag - though not very very clearly."

14. In re-examination he was asked to explain this and he answered:

"Because his hand or his arm was covered by his news-paper and so I could not see clearly. But I saw his hand in the handbag."

15. Efforts were made after the appellant's arrest to trace the second victim. She could not be found.

16. DC 16767, Wong Leung Ning, corroborated the evidence of DC 16630, Ho Chi Yin. He testified as to the initial unsuccessful attempt and of the second attempt his evidence was as follows:

"After this woman had left, defendant lingered in hawkers' stalls and he focussed on others purses; while people were exchanging money he paid attention. Under my observation he eventually walked back to stall where he tried to pick pocket. This time he stood behind one girl. Then I saw him hold the girl's purse with his right hand and I also saw him insert his left hand into the purse."

17. He described the purse as a knitted beige coloured bag.

18. He also gave evidence that he saw DC Ho go up to the appellant and heard him announce he was a police officer who was arresting him for pick pocketing. He observed the appellant fling DC Ho aside and make his way in the direction of Nullah Road. He joined in the chase. He saw DC Ho catch hold of the appellant outside the jockey club. He gave evidence of a hawker's cart being overturned and of a girl falling to the ground. He tried to handcuff the appellant who was then struggling on the ground. He could not succeed in doing that there but did so near a staircase to which place they had dragged him.

19. In cross-examination he was asked why if he had seen the appellant trying to steal from the second victim he did not go up to arrest him simultaneously with DC Ho. He replied that he was focussing his attention on the act of pick-pocketing and had not noticed DC Ho go up to him at first.

20. A truck driver who witnessed the arrest of the appellant was called. He testified seeing a hawker's cart being knocked over and seeing two people struggling together. He then saw a third person arrive and two of them took the person to a staircase where he was handcuffed. He was only able to identify DC 16767, Wong Leung Ning.

21. The appellant, a reporter on the Hong Kong Daily News and with a perfectly clear record strenuously denied his guilt. At his trial he agreed he had bought a newspaper with him but it was his defence that he had that to read and not to shelter any criminal activity on his part.

22. He denied seeing DC Wong Leung Ning at the scene. He claimed he only saw him at the police station, or almost on his arrival at the police station.

23. He said he walked up to the hawker's stall on his way to a super-market where he was going to buy some Ribena. He examined some sweaters and finding none to his liking he was about to leave when suddenly he was assaulted from behind. He had then moved 6 or 7 steps. He said his assailant abused him with foul language and punched him on his face. He was, he claimed, then pushed to a nearby staircase and again assaulted. It was then he discovered another person was assaulting him. That person he claimed was the truck driver. He called out for help and was then told by DC Ho that he was a police officer who was actually in the act of arresting him. He did not learn then of the offence for which he was arrested.

24. He said he was taken to Mong Kok police station where DC Ho told him he could charge the appellant for any offence he liked. He claimed the eventual charge of attempted theft was a frame up.

25. He alleged that DC Ho said to him at the police station:

"Don't you think that I don't know to what you belong. If I wish to chop you I would have chopped you into nine pieces long ago."

26. Part of the defence is a suggestion that the arresting officer thought the appellant had annoyed a certain teddy boy whom the police officer was in league with. He said when they enquired of his occupation and found out he was a reporter and not a casual delivery worker the two police officers walked away and conversed with each other. On their return they were less hostile to him.

27. The suggestion made here by the appellant is that the police officers had mistakenly framed the wrong person but nevertheless they went ahead and charged him with attempted theft.

28. On the 28th October 1979 the appellant made a complaint of his arrest and ill-treatment to the section of the police dealing with complaints against police officers. That complaint did not, as may be expected, deal with the matters as fully as the defendant did in court. I do not see anything surprising about that.

29. The learned magistrate adjourned the case and gave his decision, with reasons, on the 11th January, 1980.

30. He saw little reason for the police inventing a charge of attempted theft when they could have invented the offence of loitering. He said:

"The speculated reason for the unprovoked attack by PW1 is so improbable that I have no difficulty in rejecting it."

31. He considered the guilt or innocence of the defendant against the possibility of the police officer being corrupt and in league with the truck driver who was a reluctant witness.

32. He also considered the appellant's previous good character. He said:

"But none of these factors in themselves is sufficient evidence or even evidence at all - of the defendant's guilt. For that I must go back to the evidence ...." and he continued: "So much weight therefore rests on the evidence of PW3 - the only possible independent prosecution witness in this case."

33. He weighed the evidence given by the appellant at his trial with the complaint he made to CAPO on the 2nd November 1979. He found the differences so startling that he could not accept the truthfulness of the appellant's evidence. He found the reference to "Ko Fai" as incredible. He opined that if the appellant had been treated in the police station in the way he alleged it was unbelievable the appellant would not have mentioned it in his com-plaint against the police.

34. I myself do not share that view. The appellant has explained on this appeal why he said less in his complaint to CAPO.

35. In his statement of findings the learned magistrate carefully con-sidered whether the police officers accurately saw the acts of attempted theft.

36. He also considered the appellant's defence and concluded:

"I found the evidence of PW1 and PW2 was consistent and truthful and that their testimony was corroborated very substantially by PW3 in regard to the charge of resisting arrest. Conversely I found that the appellant's evidence was not credible at any stage."

37. I have dealt with the facts in great detail in this appeal for a number of reasons.

38. First there is no appeal by way of re-hearing in these courts and secondly the accusations made against the appellant are very serious indeed. Further he is a man with no previous convictions. The appellant has raised a number of points on this appeal suggesting that the conviction is against the weight of the evidence. I have considered his various points but it is not necessary for me to go into them in any detail. I say that because in my opinion the appeal against conviction on the 1st charge must be quashed as being bad for duplicity. Two separate offences of the same kind were wrongly joined in one charge. This was not all one activity separated by a matter of seconds as occurred in the case of Jemmison v. Priddle (1971) 1 Q.B. page 489 nor was it one activity where an intended thief goes from one unsuspecting person to another all at one stall until he strikes lucky. The fact showed that there was an interval of ten minutes between two attempts during which time he went elsewhere in the market.

39. As to the test to be applied in determining whether a charge is bad for duplicity that laid down in Jemmison v. Priddle is more commonly followed. Lord Widgery C.J. at page 489 of the report having referred to the dictum of Lord Parker C.J. in the case of Ware v. Fox (1967) 1 W.L.R. 379 said this:

"I think perhaps that the phraseology of Lord Parker is more helpful to me than the phraseology often found in the textbooks, and I think that what it means is this, that it is legitimate to charge in a single information one activity even though the activity may involve more than one act. One looks at this case and asks oneself what was the activity with which the appellant was being charged. It was the activity of shooting red deer without a game licence, and although as a nice debating point it might well be contended that each shot was a separate act, indeed that each killing was a separate offence, I find that all these matters, occurring as they must have done within a very few seconds of time and all in the same geographical location are fairly to be described as components of a single activity."

40. That extract was recently cited by the Court of Appeal in the case of R. v. Wilson (1979) 69 Cr. App. R. page 83, 87, C.A. Delivering the judgment of the Court of Appeal, Browne L.J. at page 87 of the report said this:

"Those statements of Lord Widgery C.J. have been approved by two Members of the House of Lords in the case of D.P.P. v. Merriman (1972) 56 Cr.App.R. 766; Lord Morris of Borth-Y-Gest said, at page 775: 'The question arises - what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling-house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down, but I consider that clear and helpful guidance was given by Lord Widgery in a case where it was being considered whether an infor-mation was bad for duplicity. I agree respectfully with Lord Widgery that it will often be legitimate to bring a single charge in respect of what he called one activity even though that activity may involve more than one act. It must of course depend upon the circumstances.'"

41. The case of Wilson concerned theft of several objects from different departments in the same multiple-store.

42. Mr. ...(illegible) who appears on behalf of the Crown has valiantly argued that the market in Far Yuen Street can be regarded in the same way as a large department store. I find myself unable to accept that contention. In the case of a large department store there is really but one owner. In this case the first charge alleged two ladies each being subjected to a attempted theft. (See also Chan Yat-pui v. R. (1968) H.K.L.R. 65, Full Court and Lin Wing-wo & anr. v. R. (1977) H.K.L.R. 306).

43. Although the matter as to duplicity was not taken in the magistrate's court it is one which can be taken on the appeal. See Archbold, 40th Edition para. 49; R.v. Wilmot (1934 24 Cr.App.R. 63, 68 and Mallon v. Allon (1963) 3 All E.R. 843.

44. In the case of Mallon v. Allon Lord Parker, C.J. said at page 84:

"In those circumstances it seems to me that these informations were bad for duplicity. It is, of course, unfortunate that the point was never taken at the very outset before the justices and indeed was never taken before them at all, but only in this court. It is, however, a point which, as it seems to me, goes to jurisdiction, and if it is a good point, it is good whenever it is taken."

45. The quashing of the conviction on the 1st charge does not necessitate the quashing of the conviction on the 2nd charge, provided there was sufficient evidence before the magistrate, and accepted by him, that the police officer DC 16630, Ho Chin Yin, was acting in the execution of his duty.

46. The right of that officer to arrest the appellant is contained in section 50 of the Police Force Ordinance, Cap. 232.

47. Section 50(1) enacts, so far as it is relevant to this appeal:

"It shall be lawful for any police officer to apprehend any person whom he may reasonably suspect of being guilty of any offence without any warrant for that purpose and whether he has seen such offence committed or not ......"

48. The question which remains in this appeal therefore is this: "Was there evidence before the learned magistrate leading him to be certain the police officer concerned reasonably suspected the appellant of attempting to steal from the handbags or committing any offence?"

49. The finding of the learned magistrate shows that he reached that con-clusion and on the evidence which I have reviewed there was sufficient evidence for him to have come to that conclusion.

50. The police officers did not act in regard to the first episode because, as DC Ho explained, there may have been an "inadvertent contact" and that was why he continued to keep an eye on the appellant.

51. The evidence as to the second episode was such that the learned magistrate found the appellant had inserted his hand into the net handbag. There was therefore no reason for the magistrate not to conclude DC Ho reasonably believed the appellant had committed the offence. The learned magistrate however did not rely exclusively on the evidence of the police officer. He was alive to the fact that there might possibly had been a frame up and so he looked for some independent evidence which could free his mind from the possibility of that having taken place. He found the presence of independent evidence in that given by the truck driver PW3. His evidence was relevant to the 2nd charge inasmuch as it showed resistance by the appellant to the police officers. He also found nothing to suggest that the police officers had used more force than what was necessary in the circum-stances. That conclusion of his cannot be faulted.

52. The upshot of his appeal therefore is that the appeal against conviction by the appellant on the 1st charge is allowed. The appeal against conviction on the 2nd charge is dismissed. The conviction on the 1st charge is quashed and an order is made that the fine, if paid, on the 1st charge is to be refunded to the appellant.

Representation:

Mr. Sinclair, Counsel for Crown

Appellant in person