The Queen v. Tam Kim-hung

CACC000175/1984

IN THE COURT OF APPEAL

BETWEEN

Coram: Sir Alan Huggins, V.-P., Li & Yang, J J. A.

Date of Judgment: 17th August 1984

__________

JUDGMENT

__________

Sir Alan Huggins, V. -P. :

1. This Applicant was one of two Defendants charged jointly with robbery. The 1st Defendant was also charged with burglary. For reasons which do not concern this appeal they were tried separately.

2. The evidence was that at 9 o'clock at night the victim was inside a wooden hut in Yuen Long when three men came in through the unlocked door. They were holding beef knives and said that they had come to rob. The victim was hit by the 1st Defendant and he was pushed on to a bed. The hut was then ransacked. Amongst the property taken was a Titus wrist-watch. This watch was, on the following day or shortly afterwards, pawned by the 1st Defendant. According to the Applicant the reason for his going to the hut - which he admitted - was that the victim and the 1st Defendant had had some transaction as a result of which the victim owed the 1st Defendant money. He said that the 1st Defendant asked him to go along to the hut to collect this debt and said that he was asked to go because the 1st Defendant was afraid the victim would be violent.

3. The police gave evidence of a cautioned statement made by the Applicant in which he said "I have been there but I did not rob the wrist-watch. It was FUNG Chi-keung who robbed.  Nothing to do with me, what happened afterwards, I do not know." Thus he admitted that there was a robbery. In his evidence to the court he denied having any knowledge of a robbery although he indicated that the 1st Defendant could have robbed while he was himself in the hut and the two men had gone outside to negotiate.

4. A number of points has been taken on the appeal. The only one of substance, and the only one with which we find it necessary to deal, is the complaint on a passage in the Reasons for Verdict where the judge said:

"I thought it not entirely without significance that no questions were put to the first witness in any attempt to show inconsistency with his evidence in the earlier trial of the 1st Accused in January 1983."

The judge did not go on to say why he thought it could be of significance, and the view of the court is that he must have been reasoning in this way - that the failure to cross-examine in the manner suggested indicated that the defense accepted that the first witness had told the same story at both trials, and that it followed from that that the first witness must have been telling the truth because he had told the same story on both occasions. We think that that was wrong. The fact that a witness has told the same story on more than one occasion does not make it any more true than if he had told it on only one occasion. It is difficult to know what effect this line of reasoning had on the mind of the judge but we think that it is impossible to say that he would necessarily have believed the first prosecution witness if he had not had this thought in mind. On that ground we think that this application must be allowed, the conviction quashed and the sentence set aside, but we think that in the circumstances there ought to be a new trial if the prosecution so wish.

17th August 1984.

Representation: