Chung Ping Cheong v. The Queen

CACC000260/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 260 OF 1969

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Coram: Williams, J.

Date of Judgment: 2 June 1969

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JUDGMENT

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1. The accused who is 16 years of age pleaded not guilty to three offences of larceny from the person contrary to s.26 of the Larceny Ordinance, Cap.210. He was convicted and sentenced to 15 months' imprisonment.

2. The first charge alleges theft on 13th February 1969 of papers, driving licence and a wallet containing US$78 and (illegible)8,500 from KUDOTA KINJI.

3. The second charge alleges theft of a lighter from an unknown person on 25th February 1969.

4. The third charge is for stealing a ball pen from an unknown person on 24th February 1969.

5. The only prosecution witness to give evidence in all three charges was detective constable, CHUNG Pak-leung, who visited the accused' home on 26th February, 1969, told the accused he suspected him of being implicated in the first charge and cautioned him. The accused's reply, Ex.P.4, in the witness's notebook is "I spent the money". That concluded the evidence for the prosecution on the first charge.

6. According to the magistrate's findings the accused had raised no objection to the admission of his reply, Ex.P.4. In evidence the accused denied recording that reply and said he merely signed it. He was convicted.

7. No evidence had been adduced by the prosecution to show that the alleged complainant KUDOTA KINJI ever existed, or was in Hong Kong, or was possessed of US$78 and (illegible)8,500 or that it was stolen from him. In other words there was no evidence that the alleged crime had been committed.

8. The accused's statement, Ex.P.4, does not say that he stole the money but simply that he spent the money. By his plea of not guilty he was clearly retracting any admission of guilt which might conceivably have been read into the words "I spent the money". In evidence he said he merely signed that reply and denied that he wrote it.

9. It was essential for the magistrate to be able to decide whether the alleged reply of the accused was true and whether it amounted to a confession. The way in which juries should approach such an issue, i.e. of deciding whether a retracted extra-judicial confession was true is set out in judgment in the appeal of Walter Sykes⁽¹⁾ in which the appellant's conviction for murder was upheld. In that case the appellant would never have been suspected had he not voluntarily informed the police that he was the murderer. About an hour later he retracted that confession and maintained during his trial that the confession was untrue. However, the prosecution evidence did not rely upon his retracted confession as proof of the existence of a body, that it belonged to an identified female and that death was not natural; they adduced evidence to show that a particular female had in fact been murdered and that the accused had known her and had associated with her; in addition the accused had told the police where the trousers he had worn were and where the murder weapon - a knife - was to be found.

10. In the light of such evidence, Ridley J. at p.236 approved the words of the Commissioner and quoted him as follows:

"A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in Court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? is it corroborated? are the statements made in it of fact so far as we can test them true? was the prisoner a man who had the opportunity of committing the murder? is his confession possible? is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?"

11. On a plea of not guilty everything is in issue. The commission of the particular crime charged must be proved; and it must be proved that the accused committed it. If the crime itself is proved but the only evidence pointing to the accused's guilt is an extra-judicial confession which he has retracted during the trial the magistrate must consider whether the confession was true. If, as in the instant case, the actual crime is not proved, there can scarcely be any way of determining which of the accused's statements is true.

12. Had the accused, when asked to plead, simply said "I spent the money", that would have been too ambiguous a reply to justify its being interpreted and recorded as a plea of guilty. It would have been necessary to elucidate further. It was at least as ambiguous when uttered to a detective.

13. The magistrate may have felt that because the accused did not object to the statement Ex.P.4 that he was admitting its truth; however, the accused may well have meant that although he did make that reply it was nevertheless untrue.

14. There was not sufficient evidence to justify a conviction.

15. With regard to the remaining two charges it appears that the detective on searching the accused found a cigarette lighter and a ball point pen which the accused said he had stolen from different persons on the different dates alleged in the charges. The complainants if any are untraced and unknown. Apart from the accused's retracted confessions there is no evidence that the articles were stolen, or that it was the accused who stole them. In court he denied the charges. In cross-examination he suggested to the detective that no such property had been found on him. In evidence he denied writing any statements.

16. The only evidence before the magistrate is accused's retracted confession to the police that he committed the crimes and his evidence that he made no such statements. Which of the accused's statements were true? There was absolutely no evidence to assist the magistrate in resolving those vital questions.

17. The accused's appeal against all three convictions is allowed.

18. The convictions are quashed; the sentences are set aside.

2 JUN 1969

Representation:

J.N. Smart for Appellant

M.J. Alexander C.C. for Respondent

Judgment read.

(1) 1913 VIII Cr. App. R. 233

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.260 OF 1969

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Coram: Williams, J.

Date of Judgment:

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JUDGMENT

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19. This is a follow-on from the order allowing the appellant's appeal against three convictions, in K3490 of 1969, of larceny from the person, in which he had been sentenced to a total of 15 months' imprisonment.

20. He had 6 previous convictions at the age of 16 or 17 years of which 3 were for "being a suspected person found loitering", and on two of those he was sent to a Training Centre. His last conviction dated 3rd September, 1968, K.14123 was "larceny from person" for which he was bound over for 3 years with his sister as surety.

21. For breach of that bond the accused received a further 6 months' imprisonment consecutively.

22. The record as compiled by the magistrate reads at the end of the prosecution case:-

23. The accused's appeal having been allowed it follows that he cannot be in breach of the binding over order of 3rd September 1968 in K.14123, and thus the sentence of 6 months' imprisonment imposed therefore must be set aside.

24. Likewise the order of forfeiture of $300 exacted from the sister as surety cannot stand. It is set aside and the said sum of $300 shall be refunded forthwith.