Chiu Pui-chai and Another v. The Queen

CACC000308/1977

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Coram: Pickering, J.A., Leonard & Cons, JJ.

Date of Judgment: 30th September, 1977.

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JUDGMENT

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Pickering, J.A.:

1. The two appellants were charged with four offences of robbery as to the facts of which it is unnecessary to say more than that they were robberies of the in-the-street and in-the-lift variety accompanied by the production of a knife or knives.

2. The learned trial judge acquitted all appellants upon the second charge by virtue of a 2-hour differential between the time at which the alleged victim claimed to have been robbed and that at which the two appellants stated they had committed a robbery. The learned judge was of the view that two different robberies could have been involved and that the onus of proof relating to the robbery charged had not therefore been discharged. The acquittal upon the second charge was, in our view, logical and inevitable but having said that we are bound to observe that equally the learned judge should have acquitted upon the third charge. In respect of that charge there was similarly a differential in time but it amounted only to half an hour and the judge did not consider that period as sufficient to be material. However, two other factors were involved in the evidence one of which was specifically drawn to the trial judge's notice, namely, that whereas the victim complained of having been robbed on the 8th floor of a particular block, the confessional statements of the two appellants referred to a robbery on the 13th floor. Moreover - and this was not specifically drawn to the learned judge's attention - the watch which the alleged victim claimed to have been stolen was an "Elena" whereas that which the appellants confessed to having stolen on the 13th floor was an "Eterna" watch. We think that had all these differences between the complainant's story and the appellants' confessions been in the mind of the learned judge he must inevitably have acquitted upon the third charge as he did upon the second. Accordingly, the conviction upon the third charge is set aside as is the concurrent sentence of five years' imprisonment imposed in respect thereof.

3. There remain the first and fourth charges in regard to which the only ground of appeal upon which we asked Crown Counsel to address us related to the similarity of the contents of the respective statements made by the appellants. We have compared the statements with considerable care and we are not of the view that it can be said as to those parts of the statements which refer to the first charge that there is any striking similarity. That cannot be said of the respective extracts from each statement in respect of the fourth charge where the contents are very similar in that the one read: -

"On 9.10.76, at about 10.00 p.m., at the No. 3-C bus-stop outside Block 49 of Tse Wan Shan, 'four-eyes Leung' and I robbed a male of a lighter, a ball pen and cash $70. The money was used to buy dangerous drug and the others were kept by 'four-eyes Leung'."

whereas the statement of the second appellant read: -

"On or about 9.10.1976, at about 10 o'clock in the night, at the No. 3-C bus-stop at Block 49, I together with 'mare-tsui' took from a man a lighter, a ball pen and cash $70. The lighter was sold off and the ball pen was thrown away, and the cash has been spent."

4. It will be readily apparent that here is to be found a striking similarity. It is however quite clear that no words could have been put into the mouth of the first appellant by the police because the robbery to which this statement relates was never reported to the police and they were unaware of it until the first appellant volunteered the details. Once they had those details it was a simple matter for the police to question the second appellant as to this robbery and despite the suggestion from the police witnesses that the statements of both the first and second appellants were entirely spontaneous we feel satisfied that the statement of the second appellant, in so far it relates to the fourth charge, must have been obtained as a result of the police making reference to the date, time, place and proceeds of that robbery. That, we consider, explains the similarity of the above extracts from these two statements but does not in our view invalidate either of them. Accordingly, the applications for leave to appeal against conviction on the first and fourth charges are dismissed.

5. As to sentence we are of the view that had the learned judge convicted on two charges and not three he would probably not have imposed concurrent sentences as high as five years' imprisonment. Accordingly, we set aside the concurrent sentences of five years' imprisonment upon the first and fourth charges and substitute therefor concurrent sentences of four years' imprisonment.

Representation:

Michael Ozorio (D.L.A.) for 1st and 2nd appellants.

Alderdice for Crown/respondent.