Cheng Kin Wah v. The Queen

CACC000303/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 303 OF 1971

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Coram: Huggins, J.

Date of Judgment: 8th June, 1971.

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JUDGMENT

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1. The Appellant was convicted of an offence of theft and he appeals against his conviction.

2. The evidence was that a woman was in the street when a man snatched a jacket and handbag from her - at least, it appeared to be a man. He immediately ran away and she was unable to identify him. While she was gathering her wits together a man said that he would give chase and he ran off after the assailant. They passed out of her sight. This other man was not called as a witness. The next witness was a constable who was on motor cycle patrol. A driver in a motor car gave him some information and thereafter as he was driving along he saw a lady's jacket and handbag lying on the ground. He picked them up and drove on. Subsequently he met another constable who was holding the Appellant. The motor cyclist said that he asked the Appellant if he had snatched the things from a person and that the Appellant said "Yes". The Appellant was cautioned and then wrote something in a notebook. This cautioned statement was objected to on the grounds that it was not voluntary, but the learned Magistrate was satisfied that it was voluntary. It contained a full confession. The only other witness was the second constable, who actually stopped the Appellant. He was approached by a man and given some information. (Whether that was the same man who had spoken to the victim we do not know.) In any event the constable ran and stopped the Appellant and at that moment the constable on the motor cycle drove up. According to this witness the motor cycle constable asked the Appellant if the jacket and handbag which he produced was what he had just snatched and the Appellant said "Yes".

3. The Appellant gave evidence and denied the offence. He said he was walking along the street when he was suddenly grabbed by the second constable. He said (although this had not been put to the victim) that she told the police it appeared that the Appellant was not the man who had committed the offence.

4. The learned Magistrate believed the evidence of the prosecution witnesses and convicted. There is only one point which arises. In his judgment given at the time of conviction the learned Magistrate said:

"The 3rd and 2nd prosecution witnesses both say that . . . . . . when the Defendant was asked if he had snatched them, he replied 'Yes'."

In his Statement of Findings he said that the 3rd prosecution witness corroborated the 2nd prosecution witness's evidence about the production of the property and the Appellant's reply. This was not strictly accurate: as I have already indicated, according to the 2nd witness the question put was "whether he had snatched the things from a person", while according to the 3rd witness the question was "if it was what he had just snatched". Also in the Statement of Findings the learned Magistrate said that the jacket and bag were shown to the Appellant and he was asked if he had snatched then and that according to the "1st" prosecution witness the Appellant said "Yes". That clearly is not correct because there is nothing in the evidence of the 1st prosecution witness to show that she heard this conversation: all she did was to identify her property. The learned Magistrate said that in his opinion the crux of the case was whether the 2nd and 3rd witnesses were "telling the truth about the Appellant's statement and verbal admission". In the statement the Appellant told a detailed story of what had happened, describing how he had run away and thrown away the handbag. It is submitted on behalf of the Crown that in spite of the slight discrepancy between the evidence of the two witnesses as to the "verbal admission" and the fact that the learned Magistrate misdirected himself that their versions of it were identical the evidence was such that really there was no possible alternative verdict. The difference between the two witnesses as to the answer given by the Appellant was such a discrepancy as one might reasonably expect in the evidence of even honest witnesses on such an occasion and in my view the evidence was indeed overwhelming. That being so the appeal is dismissed.

8th June,1971.

Representation: