The Queen v. Leung Lap Sun and Another

HCMA000750/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 750 OF 1988.

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THE QUEEN

v.

LEUNG LAP SUN AND ANOTHER

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 6th October 1988

Date of` Delivery of Judgment: 6th October 1988

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J U D G M E N T

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1. The 1st Appellant was convicted after trial on four charges,one of taking a conveyance without authority, one of going equipped for stealing and two of burglary whilst the 2nd Appellant was convicted on one charge of going equipped for stealing and two charges of burglary. Both now appea1 against those convictions and both are represented by Mr. Lee

2. In support of the appeal, Mr. Lee on behalf of each has put forward four grounds of appeal which are essentially identical. The grounds which allege what the learned Magistrate misdirected himself when determining the issue of voluntariness of the caution statements made by the appellants have in my view no substance. The appellants did not give evidence on that issue and the Magistrate accepted the evidence that the statements were voluntarily made and gave what I considered to be sound reasons for coming to that conclusion.

3. With regard to the convictions on the charges of going equipped for stealing, the Magistrate relied on these facts: that the two appellants were accosted by police officers on the staircase of a multi-storey building in the Lok Man Estate, that they were in joint possession of a crowbar, and that the one carrying the crowbar was wearing gloves whilst the other had a pair of gloves on his person.

4. The learned Magistrate came to the conclusion that those facts alone were sufficient to support the inference that the two were going equipped for stealing. Had both of them been found at night in a building other than the one in which one of them resided there might have been good reason for that conclusion .But in this case the building in which they were at the time was in fact the building in which the 1st Appellant resided. When they were seen, they were on the sane floor of the building in which the 1st Appellant resided and the time was 11:50 a.m. on a week day. Both appellants were transportation workers, and the gloves were ordinary cotton gloves of the type commonly used by workers on construction sites. Those facts were not sufficient for the learned Magistrate to say that the only inference was that they were going equipped for stealing. I think therefore the Magistrate was wrong to come to that conclusion and those convictions cannot in my view stand.

5. I, therefore, allow the appeal to the extent that the conviction in each case on the charge of going equipped for stealing is quashed as is also the sentence imposed in each case in respect of that offence.

6. As regards the appeals against the other convictions, they are dismissed.

Representation:

Mr. Michael Bulleid, CC for Crown

Mr. Lambert K.C. Lee for Appellant

(C. W. Leung & Co)