Kwan Kwok-hing v. The Queen
Read the full judgment text of CACC 255/1977 on BabelCite. This Court of Appeal judgment.
1. The appellant was charged with another man on a single count of robbery. They were both convicted and the appellant who was the original firs defendant now appeals against his conviction.
Cited by 3 cases
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CACC000255/1977
----------------- Coram: McMullin, J. Date of Judgment: 23rd March, 1977. ----------------- JUDGMENT ----------------- 1. The appellant was charged with another man on a single count of robbery. They were both convicted and the appellant who was the original firs defendant now appeals against his conviction. 2. It is not disputed that the appellant was in the company of the second defendant in the early hours of the morning of 28th December in Lockhart Road when his companion approached the young woman complainant who was walking in the street nearby, seized her round the neck and took away her handbag. The complainant said that a sum of $330,00 was in the bag and that the bag was returned to her the robbers making off with the money. Something under two hours later, having previously reported the incident to a police patrol car she identified the second defendant at Wan Chai Police Station as the man who had taken the bag away from her. The two defendants had been picked up by the police following the description given by the complainant and both were then present at the police station but the complainant could not recognize the appellant as one of her assailants. The case against the appellant rested wholly upon a statement made by him in answer to the formal charge. He has never denied being in the company of the man who took the handbag but from the start his story has been that the whole matter arose ex improviso and that he was never a complying party in his companion's sudden action. The other defendant had made a statement under caution prior to the formal charge in which he had admitted the offence and had also admitted the offence when formally charged. These several statements were made the subject of a separate enquiry, the two defendants maintaining that they had been forced or induced to make them. The appellant did not give evidence on the voir dire but the other defendant did. The statements were admitted in evidence. 3. Upon the appeal the appellant repeats that his statement was not a voluntary one and says that he was forced to copy down something written for him by the police officer in whose charge he was, from a piece of paper upon which the substance of the statement had been prepared. Although I do not chink it ought to weigh as an effective determinant in considering this appeal it is for note that the several hesitations which the evidence in the case has occasioned in my mind - and which I think have been shared by counsel for the Crown upon the hearing of the appeal - are prefaced by a doubt as to whether the magistrate applied the proper standard in considering the question of voluntariness at the conclusion of the voir dire. As to the statement of the first defendant in answer to the charge he said:
Immediately thereafter dealing with the submissions of counsel for the second defendant he said :
One would not wish to place too heavy an emphasis upon what may have been an unfortunate manner of framing the issue and addressing himself to it but on the face of it that undoubtedly does announce a wholly wrong approach to the method of dealing with the statements. It is, of course, as counsel for the Crown concedes, in every case, for the Crown to prove affirmatively that the statements are voluntary and no onus in that regard rests upon the defence. So far as the appellant is concerned we start therefore with a statement - effectively the only evidence against him - which was relied upon against him following upon its admission in evidence upon grounds which are at least subject to some degree of doubt. By itself that might not perhaps amount to a sufficient reason for upsetting the conviction but there are certain other features in the evidence and in the judgment to cause disquiet. In his reasons for judgment the learned magistrate referred to the fact the second defendant had implicated the first defendant in both the extra-curial statements made by the second defendant. Again, this may have fallen from the learned magistrate per incuriam but it is very difficult for this court to be sure that no reliance at all was placed upon this fact in eliminating any doubt the learned magistrate may have felt as to the full participation by the first defendant in the act of the second defendant. Then again the learned magistrate, as he was fully entitled to do, referred to the fact that the second defendant, who gave evidence in the case, had said upon affirmation that the first defendant was with him (the second defendant) from 10 p.m. to shortly after 4 a.m., the robbery taking place at 3.05. The appellant's story has been that he only encountered the second defendant, who he knew previously, upon the night in question a few minutes before the second defendant seized the complainant and took away her handbag. The evidence of the second defendant on the matter was not, as the learned magistrate appeared to think, straightforward, but was in fact distinctly self-contradictory. Thus he commenced by saying that he had been in the company of a friend called He - not the appellant - between 1 a.m. and 4 a.m. on the night in question. Then in cross-examination he said :
The complainant never mentioned the presence of a third man at the scene of the robbery. Beyond all these equivocal and unsatisfactory features of the case there remains what is perhaps the most substantial point and that is that the complainant herself quite plainly absolved the appellant from any active part in the taking of her property. Although she could not identify the appellant the conduct she described of the second man at the scene is, by common agreement, the conduct which must be ascribed to this appellant, since he himself admits his presence there. More importantly still the complainant confirms the appellant's story that it was he, the appellant, who persuaded the other man to return the handbag to her. Moreover the confessional statement upon which the Crown has perforce relied is itself far from being an unequivocal admission to the offence, more particularly when one bears in mind the nature of the defence story. Upon being charged the appellant simply said:
This was in fact the only sum of money found in the possession of the second defendant when he and the first defendant, in company with each other, were arrested some time between 3 and 4 o' clock on the night in question. Mr. Sharwood, who has very fairly indicated that he shares my disquiet over the features of the evidence which have been detailed over the features of the evidence which have been detailed above, says that nevertheless it must be borne in mind that the chance of a person being innocently involved in a sudden sally into violence and crime by a companion under circumstances such as the appellant describes must be remote. There is much to be said for that view and it is clear also that the appellant, if he was overtaken by surprise, did nothing to disembarrass himself of the company of the second defendant for some considerable time after the event which he described. He explained that by saying that he had been on his way home separately but was followed by the second defendant who caught up with him and upon their arriving at the place where the first defendant would have spent the night he was unable to get anybody to answer the door and then fell in with the second defendant's suggestion that he should spend the night with the second defendant. Even if that be accepted it certainly does not show him in the light of a good citizen who should have brought a crime to the notice of the authorities. For all that the question still remains whether or not he was a participating party in the robbery itself. Mr. Sharwood concedes that it is just possible that a man being himself not minded to carry out any such act could, upon his companion doing so, be sufficiently moved by an ignoble complicity through friendship to refuse to assist the victim while being at some pains to show a measure of disapproval and disassociation from the act itself. Taking it at its worst against the appellant the evidence before the learned magistrate was equally susceptible of the interpretation of acquiescence or silent complicity in the act of his companion or of surprise and positive disapproval as signalized by his insisting that she receive back her bandbag:
The complainant was not able to describe any part taken by any person other than the man who seized her round the neck. The crime was already completed by the time she was able to observe the behaviour of the other man and his behaviour as described by her was wholly of what might be called a remedial nature thereafter. In R. v. Clarkson and Others(1) Megaw, L.J. describes the burden resting upon the prosecution in respect of a charge of aiding and abetting as being:
When I put together the several matters set out above I find myself drawn, albeit somewhat relunctantly, to the conclusion that had these principles been borne in mind in relation to the several deficiencies in the evidence to which I have drawn attention the learned magistrate might not have felt himself persuaded of the guilt of the defendant beyond reasonable doubt. In all events it appears to me that the present conviction, notwithstanding the high degree of suspicion that must attach to the appellant, is unsafe and unsatisfactory and on that score the conviction must be quashed and the sentence set aside.
Representation: Appellant in person. Sharwood and Miss Beeson, Crown Counsel for Respondent. (1) 55 Cr. App. R. 445. |
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