Wong Kam Ming and Another v. The Queen
Read the full judgment text of CACC 332/1970 on BabelCite. This Court of Appeal judgment was delivered on 12 September 1970.
1. This appeal arises out of convictions in the District Court for two robberies of goldsmith shops which occurred in Kowloon on the 29th and 11th March, 1970, respectively.
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CACC000332/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 332 OF 1970 -----------------
----------------- Coram: Rigby C.J., Scholes S.P.J. and Mills-Owens J. Date of Judgment: 12 September 1970 ----------------- JUDGMENT ----------------- 1. This appeal arises out of convictions in the District Court for two robberies of goldsmith shops which occurred in Kowloon on the 29th and 11th March, 1970, respectively. 2. Both charges charged the same four accused persons, with others not in custody, and being armed with knives, of robbery with aggravation of a large quantity of gold jewellery, and, in the case of the second charge, also of 54 wrist watches, the first charge relating to the robbery of the 29th March and the second to that of the 11th March. 3. During the trial in the lower court the first and third accused changed their pleas from not guilty to guilty, and the second and fourth accused, who had each pleaded not guilty to both charges, were both found guilty on both charges and each was sentenced to be detained in a training centre. 4. The second and fourth accused appealed to this court against their convictions on both charges, and at the end of the hearing of the appeal we dismissed their appeals, stating that we would give our reasons for doing so later, and which we now do. 5. In the appeal the second accused was the first appellant and the fourth accused the second appellant, but it is convenient to continue to refer to them as the 2nd and 4th accused respectively. 6. There was no doubt that the two robberies occurred, and the issues before the trial judge were ones of identity, namely whether or not each of the 2nd and 4th accused took part in each of the two robberies, and to prove that they did so the Crown relied on circumstantial evidence and statements made by the 2nd and 4th accused. 7. Shortly the acts of the case were that at about 6.5 p.m. on the 29th March, 1970, three Chinese young men armed with long meat knives entered the Pak Lai Po Goldsmith Shop, of the ground floor of 9C, Lok Shan Road, Tokwanwan, Kowloon, and whilst one of them threatened the inmates of the shop with a knife the other two smashed the glass show cases in the shop and took gold jewellery in them to the value of $25,000 to $26,000 and the three intruders then left the shop. At the time of the robbery two constables on patrol duty in the vicinity were about to enter the Pak Lai Po Goldsmith's Shop to sign the attendance book there when four Chinese males rushed out of the shop three of them carrying long knives and also carrying two blue travelling bags. The constables gave chase and caught one of the youths, the 1st accused, and obtained his knife, Ex. P 6, but the other three youths escaped. The 2nd, 3rd and 4th accused were all arrested together the same night, and the 2nd and 4th accused made statements to the police in which each fully incriminated himself as taking part in the two robberies. 8. In regard to the robbery of the 11th March, 1970, at about 7.0 p.m. on that date 6 or 7 youths holding knives entered the Dor Choy Goldsmith Shop of the ground floor of 41, Mau Tau Chung Road, Kowloon, threatened the inmates of the shop and smashed the showcases with their knives and took gold jewellery and watches and fled. As a result of this robbery the proprietor of the shop found that he had lost 122.58 taels of gold in the form of jewellery to the value of $38,000 and 54 watches, including Tudor, Enicar, and Seiko watches. 9. After his arrest the 2nd accused pointed out to the police a meat knife on the shelf of a stall which is Ex. P24, and a $500 banknote Ex. P23 was found on him. The 2nd accused also took the police to a pawnshop where a Tudor watch was recovered. These items were mentioned in the 2nd accused's statements to the police, to the effect that the knife was the one He used for the robbery on the 29th March, the $500 note was on account of his share of the sale of the gold obtained in the same robbery, and that the Tudor watch obtained from the pawnshop with the pawn-ticket found on him was one of the watches taken in the robbery of the 11th March. 10. When the 4th accused was arrested a $500 bank-note was also found on him, namely Ex. P 15, and he also took the police to two pawnshops where a watch was recovered from each, namely a Seiko watch, Ex. P 17, and an Enicar watch, Ex. P 18. The 4th accused mentioned these items in his statements to the police, stating in effect that the $500 was part of his share of the proceeds of sale of the goldwares robbed in the robbery of the 29th March, and that the two watches pawned were obtained by him in the robbery of 11th March. 11. There is also the evidence of one LEE Ming. He said that he knew the 4th accused because he knew the 4th accused's father very well. On the 12th March, 1970 in the morning he met the 4th accused who told him that he (the 4th accused) had some gold to sell. Arrangement was made for them to meet in the afternoon. When they met in the afternoon, the 4th accused took him to a building at Sun Kwong Road, Hunghom. He frankly confessed that he could not remember the address but he remembered it was Block 6 in Flat 4. The 4th accused used his key and opened the door. 12. Inside was the 3rd accused and he was introduced to the 3rd accused. Then the 4th accused spread out the gold on a piece of newspaper. All were in the form of gold bangles, bracelets, chains, and rings. He tested and found them to be genuine gold. The weight was 100 teals. There and then he paid the 4th accused $22,000.00, all in $500.00 notes. 13. On the 28th March, 1970 the 4th accused asked him for a loan of $1,000.00. He further testified that at about 8 p.m. on the 29th March, 1970, the 2nd and 3rd accused went to see him. Each brought a bag. He found that inside one plastic bag - Exhibit P. 12 - which the 3rd accused was carrying were 30 taels of gold. He tested them and found them to be genuine. He paid the 3rd accused $5,600.00, mostly in $500 notes. The price was actually $6,600.00 but he deducted the $1,000.00 which was lent to the 4th accused the day earlier. 14. He said the 2nd accused also carried something. It was a travelling bag of brown colour which was produced as Exhibit P. 13. The 2nd accused said that he would be walking a while in the vicinity and would like to leave the bag there. 15. Later on, the police came to him in the early hours of the morning and took him to the police station. As a result of some investigations and questioning, he led the police back to his home and produced the white plastic bag containing the gold ornaments, Ex. P7 to Ex. P 11 (inclusive). He said that the gold that was sold to him on 12th March, 1970 in the previous transaction had been melted down and sold to another goldsmith shop. On that particular occasion on 29th March, 1970 the police also found inside Ex. P 13, the brown travelling bag, Exhibit P 13 A, a blue travelling bag. Inside the blue bag was Ex. P 14 - a meat knife. 16. The gold articles Exs. P 7 - P 11 taken by the 3rd accused accompanied by the 2nd accused to Lee Ming for sale at about 8.0 p.m. on the 29th March, 1970, and which the police recovered, were identified by Lau Wai-hung, an employee of the Pak Lai Po Goldsmith Shop (which was the scene of the robbery of the 29th March), as their shop's property. 17. In regard to the appeal of the 2nd accused, the only ground of appeal was that there was no evidence or not sufficient evidence whereon to found the convictions. Counsel for the appellant was unable to argue that there was no or no sufficient evidence on which to found his conviction, and was only able to draw our attention to a few slight discrepancies such as that the learned trial judge found that the 2nd and 3rd accused came to see Lee Ming on the 28th March, 1970 when according to the evidence it was on the 29th March, 1970, and his finding that the 2nd and 3rd accused each brought a travelling bag to Lee Ming on that occasion when according to the evidence one carried a travelling bag and the other a plastic bag. We were satisfied that there was ample evidence to support each of the 2nd accused's two convictions, and that there was no substance in his appeal, which was therefore dismissed. 18. In regard to the 4th accused's appeal, two grounds were argued by counsel on his behalf. The first was that the learned trial judge had misdirected himself in each of his two rulings admitting in evidence the statements made by the 4th accused to the police, one ruling being made at the end of each of two voire dires held in respect of the 4th accused's statements. The first ground of appeal alleged that the trial judge misdirected himself by failing in both instances to direct himself that the burden of proof was on the Crown to prove that the various statements were made voluntarily by the 4th accused in order to be admissible evidence against the 4th accused; and that in regard to each of the 4th accused's two statements made after being charged the trial judge admitted them in evidence on finding that the 4th accused had failed to substantiate his allegations of violence; and that in regard to the 4th accused's cautioned statements in the police officer's notebook the trial judge admitted them in evidence upon his finding that there was no substance in the 4th accused's allegation. 19. The trial judge held three voire dires altogether, the first being in regard to the two statements made by each of the 2nd and 4th accused after being charged with the two offences of which they were convicted. During this voire dire Inspector LI Wun-sau gave evidence of charging the 2nd and 4th accused with both charges and cautioning them, of each accused writing a statement in respect of each charge which was read back to him, found to be correct, and signed. The witness said that no threat force or inducement was used, and denied allegations made by the 2nd and 4th accused. The 2nd and 4th accused each gave evidence that he was beaten by the police prior to making the statements. The learned trial judge in his ruling on this voire dire said:-
20. The second voire dire concerned four cautioned statements which the 4th accused wrote in Detective Sergeant PANG Chun-ying's note book. In respect of that voire dire the Detective Sergeant gave evidence that the 4th accused wrote all four statements voluntarily and denied allegations made by the 4th accused. The 4th accused gave evidence of threats and being beaten prior to making the statements. At the end of the voire dire the trial judge made the following ruling:-
21. The third voire dire concerned the cautioned statements of the 2nd accused written by him in a police officer's note book, and at the end of that voire dire the judge made this ruling:-
22. Counsel for the 4th accused on the first ground of appeal contended that the trial judge had not directed his mind, in respect of both rulings in regard to the 4th accused's statements, to the law that the voluntariness of the statements rested on the Crown to prove, and that it was established law that the Crown had to prove that in order for any statement to be admitted in evidence, and that it had to be proved beyond reasonable doubt, and that it was not for an accused person to substantiate his allegations but for the Crown to prove the voluntariness of each statement. In respect of the first ruling the trial judge had not made any specific ruling that the statements were voluntary, although he agreed that the judge had said he accepted Inspector Li's evidence, and that showed that he was satisfied they were voluntary. 23. In regard to the second ruling, counsel for the 4th accused laid stress on the word "accordingly", and submitted that as a result of the use of that word it appeared that the trial judge had found the statements to be voluntary and therefore admissible because he found no substance in the 4th accused's allegations. Counsel said that a judge should make his ruling on all the evidence. Counsel did not attack the third ruling. 24. Counsel for the Crown contended that the rulings did not amount to misdirections. In regard to the first ruling Inspector Li had given clear evidence to the effect that the statements were voluntarily made and the trial judge had stated in his ruling that he accepted Inspector Li's evidence and rejected that of the accused thereby indicating that he was satisfied that the statements were voluntarily made, and there was nothing in the ruling indicating that the judge ever put the burden of proof on the accused. Counsel said that in the third ruling the trial judge had found the statements to be voluntarily made, and counsel for the 4th accused had been unable to attack that ruling, and he submitted that the judge would not suddenly misdirect himself on the second ruling having not done so on the first and third rulings. He stated that the choice of the word "accordingly" in the second ruling was unhappy, but the other rulings showed that the judge knew the position, and the word "accordingly", he contended, must refer to the evidence of the police officer to the effect that the statements were made voluntarily. 25. From the record of the proceedings we were satisfied that the learned trial judge did not misdirect himself on the burden of proof and that he was satisfied on the evidence that each statement was voluntarily made before he admitted it into evidence, and therefore this ground of appeal failed. However, we think it desirable that a judge or magistrate should state in his ruling on a voire dire, if such is the case, that he is satisfied beyond reasonable doubt on the evidence that a statement or statements were voluntarily made or words to that effect, so as to exclude any possibility of a doubt in the matter. (For cases on the standard of proof required of the prosecution on a voire dire see R. v. Sartori and others 1961, Crim. L.R. 397; and R. v. Wilson, 1967, 1 A.E.R. 797 at 801). 26. The second ground of appeal argued on behalf of the 4th accused was:-
27. For this ground of appeal counsel for the 4th accused relied on the recent Full Court case of HO Yiu-fai and others v The Queen(1) in which the Full Court referred, inter alia, to authories on the point that, when a judge is reaching his conclusion on the general issue, he must not rely on any evidence given by an accused, during the prosecution's case, on the admissibility of a statement, and counsel submitted that the trial judge, in his reasons for verdict, was considering the weight to be attached to the statements and should therefore not have taken into consideration for that purpose the 4th accused's evidence given during the voire dire. 28. We think that when referring to the voire dire evidence in question the learned trial judge was referring to and explaining his previous rulings because he stated in his reasons for verdict:-
29. We therefore considered that there was no substance in the second ground of appeal and that ground also failed. 30. For these reasons the appeals were dismissed. September, 1970. Representation: Reasons for Judgment delivered by Scholes, S.P.J. A. Zimmern on fiat for Crown. M. Lee assigned for both appellants. (1) Cr. App. 828/69. September, 1970 |