Wong Chun Ki v. The Queen

CACC000300/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 300 OF 1973

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Coram: Briggs, C.J. and Pickering, J.

Date of Judgment: 18th July 1973

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JUDGMENT

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Pickering, J.:

1. The appellant was the second of two youths charged with robbery.

2. The evidence was that on the 5th of January of this year shortly after 4 p.m. three men entered the premises of the Tung Ngan Factory at 21 Tai Yip Street. Two of them entered the office, one of them producing a knife, while the third man remained outside the office and was masked. In the result the occupants of the office were robbed of cash, two sets of Parker pens, one gold ring, one cigarette lighter, one Enicar watch and one Citizen watch.

3. A short time later a party of police saw three youths whom they regarded with suspicion and approached and searched them. The first accused in the court below (not this appellant) was found to have a set of Parker pens in his hand and another set in his inside jacket pocket. During the confrontation by the police one of the three ran away and escaped. The appellant and the man with the Parker pens were taken to the police station where the man with the pens was found also to be in possession of a cigarette lighter, a gold ring and an Enicar watch. All these items were identified by the owners as the property recently stolen from the factory office. The appellant was found in possession of a Citizen watch. The Citizen watch which had been stolen was described by its owner as being of steel, with a steel bracelet, a white face and having a date aperture at the right hand side at 3 o'clock. The watch in the possession of the appellant was identical. The owner of the stolen watch said that it bore no distinguishing marks. The watch in the possession of the appellant had a scratch upon the face.

4. The learned judge considered that the appellant was in possession of property recently stolen, found him guilty of the robbery and sentenced him to detention in a Training Centre. His appeal is against conviction.

5. It is noteworthy that one of the three robbers escaped and we cannot be sure that the Citizen watch stolen was not in the possession of this particular man. The watch is a mass-produced object of which there are many in the Colony. The stolen watch was said by its owner to have no characteristic marking, whereas that found in the possession of the appellant had a scratch upon the dial. The watch which I normally wear is under repair. At the moment I am wearing a Citizen watch. It is of steel, with a steel bracelet, has a face which might fairly be described as white, and has a date calendar on the right hand side at the 3 o'clock position. If the watch were to be stolen from me I could not possibly identify it.

6. The learned judge quoted the case of D.D. Patel and another v. R.⁽¹⁾ to the effect that:

"...... absence of positive identification or mark is not fatal. The similarities between the articles found and those stolen may be shown to be so numerous and striking as in their totality to compel the judgment of any reasonable person to a conclusion that they are identical. There may come a stage beyond coincidence where the only rational explanation is identity."

We are doubtful if this case has any application to mass-produced articles. The learned judge's comment that the masked robber might well have been the appellant, because the appellant had once worked briefly at the factory and would fear recognition, was nothing more than speculation. In all the circumstances of the present case we feel that there ought to have been a reasonable doubt in the judge's mind and that the conviction was unsafe and cannot be allowed to stand. The application for leave to appeal is accordingly allowed and the conviction and sentence set aside. The watch is to be handed to the police for disposal.

Representation:

Appellant in person.

Harte, C.C. for Respondent.

(1) 1954 Kenya Criminal Appeal 292/1952.