Tam Ching Hoi Alias Chan Hing v. The Queen

CACC000394/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 394 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 20th June 1975.

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JUDGMENT

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Huggins, J.:

1. The Appellant appeals against convictions and sentences on charges of robbery and taking a conveyance without authority.

2. This was in the nature of a payroll robbery. The proprietor of a hire car business went to the bank and drew money. He was driven by one of his own drivers. On the way back to his premises the vehicle was stopped by another car, which overtook and blocked the way. There were three men in that car. Two of them alighted and came back to the victim's car. One of them was brandishing a knife. The money was in a briefcase, which was seized by one of these two men, who then ran back to their car and drove off. The owner of the money sent out a radio message on the vehicle's radio to all his company's cars, one of which saw the robbers' car and tried to give chase but he lost the car in the traffic. The car was eventually found abandoned. I say "eventually" but it was probably within the hour: we are told that the Appellants were arrested "in the morning", and the robbery had taken place at 11:10. The Appellant was found by the police in the vicinity of the car. He was seen to be carrying a plastic bag. A police constable tried to stop him and he ran away. He was shortly afterwards arrested by another police officer, and the plastic bag was found in a place where he had thrown it in his flight. The plastic bag contained some knives.

3. The Appellant was cauti ned at the police station and he then made a statement which amounts to a confession of implication in the robbery. It was contended on behalf of the Appellant that that confession was inadmissible in evidence because it was not a voluntary confession. The learned judge heard evidence on that issue and was satisfied that it was a voluntary confession: it was therefore admissible. It was, in reality, the only evidence upon which this Appellant could be convicted. Neither the owner of the hire cars nor his driver could identify the robbers. The driver of the car which tried to chase the escaping car did say that he was able to identify this Appellant as a man who was sitting in the back of the escaping car. However, the learned judge was not satisfied with that evidence and was not prepared to act upon it.

4. Before us the Appellant has maintained that he is innocent and repeats that the confession was obtained as result of a beating. This matter was fully investigated by the learned judge and nothing has been said which leads us to believe that he came to a wrong conclusion. Once the confession was admitted there was ample evidence upon which the Appellant could be convicted. The Appellant's proximity to the robbers' car and his possession of the knives was some evidence to support the confession, particularly in the absence of any explanation - and the Appellant elected to give no evidence at his trial.

5. We are satisfied, therefore, that we cannot interfere with the conviction for robbery.

6. Counsel for the Crown has very properly drawn our attention to a matter relating to the second charge, the charge of taking a conveyance without the consent of the owner. The only evidence which was relied upon in the court below as to that was the statement, and that statement suggested that the Appellant was not party to the taking of the conveyance but merely rode in it after it had been taken. Therefore the Crown does not support the conviction on the second charge and we allow the appeal in respect of that charge. That conviction is quashed and the relevant sentence set aside.

7. As to the sentence for the robbery the Appellant has advanced no ground for interference. He is a man with convictions on seventeen different occasions, there being five convictions on one of those occasions, four on another and two on three others. Those convictions included robberies with aggravation, burglaries and theft.

8. We think the sentence of five years was amply justified, and the application for leave to appeal against sentence is dismissed.

20th June 1975.

Representation: