Mang Kwok-hung v. The Queen
Read the full judgment text of CACC 213/1978 on BabelCite. This Court of Appeal judgment.
1. The appellant was convicted of robbery and appeals both against that conviction and the sentence of four years' imprisonment imposed in respect of it.
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CACC000213/1978
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----------------- Coram: Pickering, J.A., McMullin and Yang, JJ. Date of Judgment: 14th September, 1978. ----------------- JUDGMENT ----------------- Pickering, J.A.: 1. The appellant was convicted of robbery and appeals both against that conviction and the sentence of four years' imprisonment imposed in respect of it. 2. The victim was on his way to work just after day-break when two Chinese men stopped him. One tapped his shoulder from behind and demanded money whereupon the victim gave him $50. The second man then struck the victim in the eye and took away his Rolex wrist watch and two Parker pens. Both men then ran away. 3. Subsequent identification by the victim of the appellant at an identification parade was unsatisfactory so that the prosecution were obliged to rely entirely upon a cautioned statement made by the accused following his arrest some five months after the robbery. The admissibility of that statement was challenged but after a trial within a trial the learned judge in the court below admitted the statement. The relevant part of the statement came towards the end of an antecedent statement made to the police during the course of which the appellant mentioned robbing a passer-by with a colleague. The formal caution followed but as an introduction thereto the interrogating officer said "I have reason to believe you are in connection with a robbery which occurred on 1.8.1977 at 06.15 hrs. at the hill path opposite Block 5, Shek Pai Wan Estate, that is opposite the Detective Training School, Aberdeen." Those words are important to the argument which counsel for the appellant addressed to us. The explanation given to the victim before he received an initial and less formal caution at the commencement of his antecedent statement, was in these terms "I now enquire of you into a case of robbery which occurred at 6.15 a.m. on 1.8.1977 in the hill path opposite Block 5, Shek Pai Wan Estate (that is beside Detective Training School, Aberdeen). At that time a Chinese male (that is the victim) walked to the above address and was robbed by two Chinese males of the following property: (1) one gent's 'Rolex' wrist watch No. 2468413 valued at $1,000 Hong Kong currency; (2) one pair of 'Parker' fountain pens, valued at $130 Hong Kong currency; (3) cash $50 Hong Kong currency." 4. Following the second caution the appellant said
5. Miss McGrowther, counsel for the appellant, urged upon us that in a case where the prosecution's case rests entirely upon a confessional statement and the admissibility of that statement is challenged, the circumstances surrounding the making of the statement should be examined with even greater particularity than where the statement does not stand alone but is supported by other evidence. That is a proposition from which we would not demur. 6. In the present instance, counsel argues, the confessional statement is open to suspicion because it contains virtually nothing which was not made known to the appellant in the course of the two explanatory statements made by the interrogating officer prior to the two cautions. The only additional material, it is pointed out, is the mention of the name Dan Yee and the recital of the pawning of the watch - a recital said to be suspicious in itself since the watch was said to have been pawned for precisely the same sum as that which it had cost some seven years previously. 7. The objection to the admissibility of the appellant's statement was based on an allegation of violence. Counsel for the appellant in the court below put it to two police officers that a telephone directory had been placed on the appellant's chest and that the directory had then been beaten with a hammer. Both witnesses denied this and, since the appellant himself gave no evidence wither upon this issue or upon the general issue, there was simply no evidence as to this alleged assault, merely suggestions from the mouth of counsel which suggestions were repudiated by witnesses who were described by the learned judge as having given their evidence well. It is true that on the day following the making of his statement the appellant was taken to Queen Mary Hospital but, according to the police witnesses, this was not because of any assault but because of complaints of liver trouble. It was stated by counsel for the appellant in the court below, in addressing the court in mitigation, that the appellant does indeed suffer from a liver condition. 8. It is also true that the statement of the appellant contains the time and place of the robbery, the sex of the victim and the subject of the robbery and that these matters had been mentioned to him by the interrogating officer but it is just as likely that they appeared in the appellant's statement because they happened to constitute the truth about the robbery as because they were picked up parrot-like by the appellant from the interrogating officer after an assault upon the appellant; and it remains the case that further material not referred to and presumably not known by the interrogating officer was incorporated in the appellant's statement. 9. All that the learned judge had was the prosecution evidence and the statement stood uncontradicted and unexplained. Whilst it was not for the appellant to prove anything the learned judge could not possibly have exercised his discretion to exclude the statement upon the grounds of assault because there was simply no evidence of assault and, the statement containing an account of the robbery very similar to that given by the victim in evidence, the learned judge's comment that it was an account which could very likely have been made by one of the robbers was justified. We are quite unable to say that the judge exercised his discretion wrongly and the application for leave to appeal against conviction must be dismissed. 10. Miss McGrowther was candid in telling the court that she could not put forward any effective grounds of appeal against the sentence of four years imprisonment and that application for leave to appeal is also dismissed. Representation: Miss J.J. McGrowther (Director of Legal Aid) for appellant. M.V. Lunn for Crown/respondent. |