The Queen v. Wong Mo Keung

HCMA001073/1989

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL No. 1073 of 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 20 October 1989

Date of Delivery of Judgment: 20 October 1989

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JUDGMENT

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1. The appellant was the second defendant at the trial in the magistrates court on a charge of robbery alleging that he and another on the 26th April 1989 at a staircase in Kimberley Street, Tsim Sha Tsui robbed a female of certain property.

2. The female was a young lady returning to the premises in which the offence was alleged to have occurred at about 5:15 a.m. that day. Her evidence was that she had previously been followed by three men and that after they had stolen property from her under the threat of the use of force they ran away.

3. One of the culprits was arrested soon afterwards but this appellant was not arrested until the 18th May.

4. When first cautioned, he denied that he was implicated in the robbery but, subsequently, after being shown a statement made by the person who was the first defendant at the trial, a statement which apparently implicated this appellant, the appellant made a further statement under caution in which he admitted complicity in the robbery out confined his role to that of a mere lookout.

5. On the 22nd may, an identification parade was held and at that parade, he was identified by the young lady as one of the three robbers.

6. There was an issue at the trial regarding the admissiblity of the second cautioned statement but after hearing evidence relevant to that issue, the magistrate found that it had been voluntarily made and accordingly admitted it in evidence.

7. The learner magistrate convicted the appellant and he now appeals against that conviction relying on what Mr. Cheng Huan his counsel described as three main areas of complaints.

8. The first series of grounds relates to the issue of identification. The evidence was that the young lady remembered after the robbery that one of the robbers was a man who sold newspapers in the Sau Mau Ping area. When she identified this appellant she did so because she recognised him as that man.

9. The appellant, when he gave evidence in the lower court, said that he lived at the address shown on the charge sheet. The address shown on the charge sheet is an address in Sau Mau Ping and his occupation shown on the charge sheet is news-vendor.

10. The complaint on this ground of appeal is that the magistrate did not warn himself as he should have done in accordance with the Turnbull's guidelines. It is true that the magistrate says that he did not regard the case as a fleeting glance situation. I agree. In any event Mr. Cheng Huan conceded during the course of argument that if he did not succeed on his ground in relation to the cautioned statement he could not succeed on his identification argument.

11. The submission in relation to the cautioned statement was that the learned magistrate in considering the question of admissibility placed too high a burden on the appellant.

12. The complaint arises from remarks made by the learned magistrate in his Statement of Finding's reading as follows:

''No police would be stupid enough to hit the appellant so hard or in such a way that they would mark him knowing the procedure whereby Duty Officers for the silghtest pretext of a complaint immediately send complaintant parties for medical examination. ''

13. Those remarks followed on from his mention of the fact that the appellant had been found to have sustained abrasions which could have been caused during the time that he was in the custody of the police.

14. From the points made subsequently, it seems to me to be quite clear that the learned magistrate did not place too high a burden on the appellant because he went on to say this:

''Seconaly, the medical evidence is clear that, normally, what the appellant described as happening to him would leave bruises and not abrasions.

Thirdly, it was conceded, even insisted upon by the appellant, that he was left alone in a room immediately after he made complaint of assault to the Duty Officer.

I have really little doubt that the appellant's reddening and abraded areas were self-inflicted. There were none on his back, pernaps an area he could not reach, or forgot about.

Lastly, after such a pasting, the writing of the apellant in the cautioned statement is beautifully and unaccountably regular and last but not least, the concocting police, after all the trouble they went to to get the appellant to ''cough up'', finish up dictating a largely self-serving statement, which distanced the appellant as far as possible from involvement in the robbery.

This is all too much, I found, for belief. ''

15. Quite clearly the learned magistrate made a reasoned assessment of the evidence of the defendant and rejected it and the remarks to which exception has been taken must be seen in their context, namely, an explanation as to why he found the appellant's version unbelieveable.

16. As that complaint is the only complaint regarding the cautioned statement, I cannot see how it can be said that the learned magistrate was wrong to admit it and to rely as he did on the part which he found to be true, the parts which inculpated the appellant in this robbery.

17. There being no substance in that ground of appeal, it fails and with it, of course, the argument with regard to the identification evidence.

18. The third area of appeal relates to what is alleged in the perfected grounds of appeal to be a material irregularity at the trial arising from the representation of the two defendants.

19. The counsel who represented the first defendant at the trial was instructed by a firm of solicitors who had been acting for this appellant at the time of the identification parade. That same counsel was instructed by the same firm of solicitors to represent the appellant at that identification parade.

20. There were some questions asked at the trial with regard to that identification parade. But it appears to me that, it they were any irregularity arising from this mixed-up representation, it made no difference to the outcome of the trial because the case against the appellant on the identification evidence and the cautioned statement was overwhelming. There teas nothing in the way that the trial was conducted which could have led the magistrate to make the findings which he did on any wrong basis arising out of that mixed-up representation.

21. Mr. Cheng Huan conceded that this particular ground on its own who was not enough to disturb the conviction.

22. I find no substance in any of the grounds so the appeal must fail. Accordingly, it is dismissed.

Representation:

Mr. Alain Sha, S.C.C. for Crown Prosecutor.

Mr. Cheng Huan, Q.C. leading Mr. P.S. Tong instructed by M/s. Clifford Yeung & Co. for appellant : Wong Mo-keung.