Ting Wing Ming and Others v. The Queen

CACC000388/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 388 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 12th August 1975.

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JUDGMENT

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Huggins, J.:

1. The four Appellants before us appeal against their sentences, and only two of them have asked leave to appeal against convictions. We have heard those two first as to the convictions.

2. The second Appellant was convicted, on a charge of robbery, of handling stolen goods on two charges of robbery and on one of criminal damage. The fourth Appellant was convicted of robbery, criminal damage and resisting a police officer. All the Appellants were in fact convicted on the criminal damage charge - and all pleaded Not guilty.

3. The learned judge was satisfied that all four entered the Kam Fai Restaurant and committed robbery there. They were armed with knives. He appears to have drawn the inference that damage which was undoubtedly done by one of the robbers was done in pursuance of a common intent. There was no evidence as to who precisely did this damage and it was the contention of the Appellants that the damage was done by somebody called Ah Chiu as a matter of personal vengeance. The judge did not believe that and, as I have said, convicted all the Appellants.

4. With respect to him we think the learned judge did not have evidence which justified the inference which he drew. There was sufficient evidence to justify an inference that the robbers intended to commit robbery and it is possible that they intended also to do damage, but we do not think that that was an irresistible inference. In the absence of evidence identifying the person who did the damage we think that the conviction on charge No. 7 cannot stand. Although the first and third Appellants have not sought to appeal against conviction, we think that it would be proper in all the circumstances for us to give leave out of time to them and to quash the convictions against them also on that charge.

5. The only other conviction as to which we have had any doubt was that of the second Appellant on the first charge. The conviction was based upon the finding of a wrist-watch, which was part of the stolen property, on the person of the second Appellant when he was arrested some three weeks after the robbery. Very reasonably the learned judge thought that the time which had elapsed justified a conviction for handling rather than for robbery, but there is this further difficulty that the police officer who is alleged to have found the watch on the Appellant died before the trial. The advocate who appeared on behalf of the second Appellant at the trial did not object to a statement by that officer going into evidence. A second officer gave evidence that he received the watch from the first officer. Although no objection was taken to the admissibility of the statement, we think - and counsel for the Crown has not sought to argue otherwise - that that evidence was inadmissible and ought not to have been admitted. Without that evidence it is clear the conviction cannot stand. We, therefore, quash the conviction of the second Appellant on Charge 1.

6. In our view there was evidence to justify convictions on the other charges and nothing which the second and fourth Appellants have said to us persuades us that the learned judge came to a wrong conclusion on those other charges.

12th August 1975.

Representation: