Kong Woon Man v. The Queen

CACC000152A/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 152 OF 1968

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Coram: Hogan, C.J. and Pickering, J.

Date of Judgment: 5 July 1968

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JUDGMENT

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1. The appellant was convicted before the District Court of two charges of robbery with violence contrary to Section 40(1) (b) of the Larceny Ordinance, Cap.210, and one charge of assault with intent to rob contrary to sub-section (1) (a) of the same section. He was sentenced to 3 1/2 years' imprisonment on each charge the sentences to be concurrent. His appeal, which is against conviction, was accompanied by an application to this court to hear further evidence under the provisions of the Criminal Procedure Ordinance, Section 81 sub-section (9) (c). We have ruled separately upon that application and the result of our ruling was that we declined to hear the proposed further verbal evidence or to accept a fresh exhibit in the form of a letter written by the appellant since his conviction, in which he protested his innocence.

2. The two robberies occurred respectively on the 2nd and 4th of February, 1968, both at Kung Lok Road, Kwun Tong, Kowloon; in the former a taxi-driver was robbed by his passenger of a wrist watch and $20 and in the latter another taxi-driver was similarly robbed of a wrist watch. In each case the driver was struck on the head at the time of the robbery. Both wrist watches were subsequently recovered by the police from pawnshops and identified by their respective owners as those stolen from them and by the appellant as those which he had stolen.

3. It was, however, the assault with intent to rob, which occurred on the 7th of February 1968, that led to the arrest of the accused. The victim in this case was another taxi-driver and the location was again Kung Lok Road, Kwun Tong. This driver gave evidence of being hailed by the appellant who directed him to Kung Lok Road and, after some discussion as to the fare, seated himself in the back of the car directly behind the driver. When eventually the car stopped at the top of a slope in Kung Lok Road at a deserted and unlighted spot the appellant, according to the driver, put his left arm around the driver's neck, poked a hard, cold object into the back of his neck and said: "Don't move! If you move I'll fire a pistol and shoot you". At this stage the driver offered his passenger money and bent forward in an attempt to remove his neck from the bottle whereupon the passenger struck him twice on the right side of his head. Since the handbrake of the car was not engaged, the effect of this tussle was to cause the car to move backwards down the slope and, as this was happening, the driver snatched the bottle from his passenger and threw it out of the window. As the driver became conscious of two people moving towards the car, the passenger opened the offside rear door and jumped out whilst the car was moving quite fast. Regaining control of his vehicle, the driver proceeded to Kwun Tong Police Station where he reported the incident.

4. The two persons whom he had seen whilst the car was slipping backwards were, in fact, police officers who testified to seeing this vehicle, AG9807, pass them whilst their car was stationary. They had followed it and saw it stop at the top of the steep slope in Kung Lok Road. The interior light of the car was on and both officers said that they saw the passenger in the rear seat put his left arm around the driver's neck and strike him with some object. The driver of the police vehicle stopped parallel with the taxi and both officers alighted; one of them fell in an attempt to open the nearside rear door of the taxi whilst it was slipping backwards, but the other saw a man "dart" out of the taxi and also saw a bottle fall from it and roll downhill. The taxi, having come to rest against a danger sign, made a U-turn and drove off whereupon the second officer approached the man who had jumped from the taxi and was on the ground his face covered with blood and unable to speak. Both officers identified the man on the ground as the appellant. When this party arrived at the police station, the taxi-driver, who was already there, also identified the appellant as the man who had struck him. The appellant was removed to Queen Elizabeth Hospital and subsequently the police, who found no other objects in the area recovered an aerated water bottle from a spot about forty yards from the danger sign against which the taxi had come to rest.

5. On being discharged from hospital on the 21st of February 1968, the appellant was interviewed by Corporal 1121 and as a result made certain statements under caution which implicated him in the occurrences of the 2nd and 4th February. At his trial in the District Court the appellant objected to the admission of these statements on the grounds that he was induced by fear and promises to make them but after hearing evidence on the voire dire the learned trial judge admitted the statements and also statements made in answer to two of the charges, which statements were also made the subject of objection by the appellant on similar grounds.

6. At an identification parade on the 22nd February 1968 all three victims identified the accused as the person who had assaulted and in two cases, robbed them.

7. Of his nine grounds of appeal, counsel for the appellant appeared to place most reliance upon the suggestion that the four statements made by the appellant, Exhs. P2, P3, P5 and P6, were wrongly admitted by the learned trial judge who, counsel said, never directed his mind to the fact that the onus was on the Crown to satisfy him beyond any reasonable doubt of the free and voluntary nature of the statements. We do not propose to review in detail the argument which took place before us for and against this proposition. When there are allegations of beatings, threats and gifts as the preliminaries to the taking of statements, the task which faces the Crown is in its essentials that of proving a negative but given credible evidence by Crown witnesses as to the circumstances which preceded and, perhaps more important, the circumstances which did not precede the taking of a statement, the burden upon the prosecution is less onerous than that phrase at first sight implies. This is all the more so where an accused's version of the events contains inherent improbabilities. In this case we would view with pronounced scepticism the appellant's account of having been given some $320 by a police corporal as an inducement to make statements; nor do we think that the learned trial judge was wrong in rejecting the appellant's story of being beaten by a group of five or six police officers on the day prior to his statements in answer to two of the charges. Having considered the evidence as a whole we are far from persuaded that the judge was in error in admitting the four statements nor do we consider that there is anything in the further ground of appeal that he placed too much weight upon them in the absence of other corroborative evidence. If corroboration were needed there was ample corroborative evidence in the identification of the appellant by the three drivers and in the recovery of the two wrist watches from pawnshops mentioned in the statements - a recovery which the learned trial judge did not apparently regard as either fortuitous or the result of a massive operation by the police to locate pawnshops at which particular makes of watches had been pawned on or shortly after the dates of the two offences in the course of which the watches were stolen.

8. Apart from the trial judge's admission of the four statements to which we have referred, the only other ground of appeal upon which we invited counsel for the Crown to address us was the suggestion that the evidence concerning identification was unsatisfactory. This criticism was levelled primarily at the circumstances of the identification parade at which all three drivers identified the appellant. It appears that at the date of the parade the appellant's face still bore grazes and bruises, effects of his fall from the taxi some fifteen days previously, but whilst the driver of that particular taxi might well have expected such a condition as the result of his knowledge of the events of the night of the 7th February the other two drivers, who also identified the accused on the parade, would not appear to have had reason to expect anything of the sort since they were robbed on the 2nd and the 4th of February respectively. The further suggestion, that the two victims of the events of the 2nd and 4th of February could not reasonably have identified the appellant on the parade since they had each seen him for only a few minutes approximately three weeks previously, does not withstand the impact of the evidence. Wong Fuk Hing. who was robbed on the 2nd of February said that when the passenger who robbed him entered his car the interior light was on and he got a good look at the man's face, both then and subsequently through his rear vision mirror, the interior light of the car being on during the whole journey. Wong Chiu Bing, who was the victim on the 4th February, also testified that his interior light was on and that he saw the face of his passenger when turning to ask the latter where he wished to go.

9. Moreover, in the present case, the evidence of identification did not rest wholly upon the parade for the appellant was additionally identified on the morning of the 7th February by the driver from whose taxi he had that morning jumped, as the person who had assaulted him. In our view, the spirited attack made upon the evidence of identification must fail.

10. The remaining grounds of appeal were as diverse as they were tenaciously-urged by counsel for the appellant but we find no substance in them. We are wholly unable to agree that the events of the early morning of the 7th February were consistent with a simple fight between the appellant and the driver and that there was insufficient evidence to show an intention to rob on the part of the appellant. Further, we see no illogicality, as claimed by counsel for the appellant, in the two police witnesses in the police vehicle being able to see what was happening in the lighted interior of the taxi; nor do we draw any inference from the fact that the events of the 7th February were not altogether similar to those of the 2nd and 4th of February, for we have little doubt that the similarity would quickly have become complete with the robbing of the driver had the car not begun to slip backwards. Finally, we discount completely the suggestion that the detective corporal in charge of the investigation into these three offences was over-eager to associate the man arrested at the scene of the assault on the 7th with the robberies which took place on the 2nd and 4th. That association was, in our view, proved by cogent evidence.

11. Taken as a whole the evidence against the appellant, resting as it did not only on identification by the victims but on the finding of the watches and his own statement was very strong and would appear fully to justify the conclusion of the trial judge.

12. The application for leave to appeal against conviction is dismissed. There was no appeal against sentence.

Representation:

Henry Hu (Lam and Tong) assigned for Appellant.

Evans C.C. for Respondent.

Judgment read on 5.7.68.