Heung Tak Hung and Others v. The Queen

CACC000399/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

Criminal Appeal No. 399 of 1969

(On appeal from K.D.C. Criminal Case No. 44/69)

Coram: Rigby and McMullin JJ.

Date of Judgment: 19 August 1969

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JUDGMENT

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1. The first two appellants were convicted of the offence of robbery with aggravation. The third appellant was convicted of receiving property knowing the same to have been stolen under circumstances amounting to an indictable offence, namely, robbery. Upon conviction the first appellant was sentenced to a term of imprisonment of two years and three months, to be followed by twelve months police supervision. The second appellant was sentenced to two years' imprisonment to be followed by twelve months police supervision, and the third appellant was sentenced to a term of eighteen months' imprisonment. The first appellant now appeals against the sentence imposed upon him, the second appellant appeals against his conviction, and the third appellant appeals against his sentence.

2. The brief facts of the case were that on the afternoon of the 4th of April the first two appellants, together with another man who pleaded guilty at the trial to the charge of robbery preferred against him, went to the premises of two females where they lived and gained admission to those premises by a particularly despicable trick. One of the appellants, having enquired the name of the persons who lived there, told one of these females that her son had been injured in a traffic accident at a particular place. The woman was, not unnaturally, extremely worried, and came out of the door with the apparent object of asking the man to conduct her to the place where the accident had happened. Thereupon she was seized by this man, together with two persons who were with him and who had concealed themselves nearby. She was seized and bundled inside the premises, taken into her room and tied and gagged, and her room ransacked and a quantity of jewellery and other miscellaneous objects stolen therefrom. In the meantime the other woman had entered her own room and quickly bolted the door. The three miscreants then compelled her, by making use of the other woman, to open the door, which she did, and she in turn was tied and gagged, her room ransacked and jewellery and other property stolen therefrom. It is quite clear that that very same afternoon all, or part, of that stolen jewellery was taken to the premises of the present third appellant and he apparently wasted no time in selling part of that jewellery to a goldsmith.

3. Dealing now with the case of the third appellant it is apparent that he was arrested that same evening. He took the police to the goldsmith to whom he had sold some of this property. The goldsmith said in his presence that the appellant had told him that the gold belonged to his wife who had recently died. Quite clearly that fact, together with the very recent possession of the stolen property, was a factor which influenced the learned Judge in coming to the conclusion that he was in possession of that property knowing it to have been stolen.

4. Turning to the case as against the second appellant, who has appealed against his conviction. He was arrested some two days after the offence. The evidence against him consisted of his clear identification at an identification parade by one of the two female complainants as one of the persons who had broken into her premises and tied her up and robbed her.

5. Criticism was made by the learned Judge, with every justification, of that particular identification parade, because it would appear that the complainant's own son-in-law acted as interpreter at that parade. The reason given for him so doing was that the two female complainants were both Amoyspeaking and were not proficient in Punti, and for that reason the complainant's son-in-law was used as an interpreter because there was no other Amoyspeaking interpreter presently available. The learned Judge very properly criticised the circumstances of that identification parade in the use of one of the complainant's relatives as an interpreter for the purposes of the parade. It is a criticism which we would endorse and we can only hope that such a method of interpretation will not be made use of again. If the matter had rested there, it might well be that we would think it unsafe to have allowed this conviction to stand simply upon the identification of the appellant by that complainant at that identification parade. But the matter does not rest there. After he was arrested the appellant was told the circumstances of his arrest; that there was reason to believe that he was concerned in the commission of this particular offence, and he was then duly cautioned. He then, having been duly cautioned, himself wrote a statement in the police officer's notebook. That statement is exhibited. On the face of it, it is a clear and detailed admission by the appellant that he had been actively concerned in the commission of this offence. The appellant made no objection as to its admissibility at the time this document was tendered in evidence. When he himself came to give evidence he alleged that that statement had been extorted from him by force. That allegation, and the details of it, were very carefully considered by the learned trial Judge. He was fully satisfied that that allegation was untrue and that the statement was in fact a free and voluntary confession. He accordingly admitted it in evidence and he was further satisfied that its contents were true. There was, therefore, against the appellant not only the evidence of one of the complainants who identified him as having been one of her assailants, but also the appellant's own admission written by himself in the police officer's notebook Whilst it is true that, when giving evidence on his own behalf, he denied ev having been present, there was undoubtedly evidence here before the learned Judge which, if he accepted and believed, it was sufficient to support the conviction. His appeal against conviction is accordingly dismissed.

6. It only remains to deal with the appeals of the first and third appellants against sentence.

7. The first appellant's sole complaint is that he asks that the order of police supervision made against him should be repealed.

8. This appellant has four previous convictions going back to July 1965; one for loitering, one for larceny by a trick, one for larceny from the person, and a final conviction in October 1968 for loitering and possession of an instrument fit for unlawful purpose. The sentences imposed upon him in respect of these previous offences ranged from two to six months.

9. The main purpose of police supervision, as we understand it, is to ensure that in the interests of public security the police are in a position to exercise some measure of control over the movements and activities of persons of known bad character, such as burglars, pickpockets and common thieves, who habitually and consistently lead a life of criminal dishonesty. Police supervision is not imposed by way of an additional punishment; it is imposed simply for the security of the public in the manner in which we have indicated. Whilst it may well be that the first appellant, if he continues in the way in which he has been apparently living in the past, could soon become a suitable subject for police supervision, we are not satisfied that he has yet reached that stage. His appeal will therefore be allowed to the extent that the order for police supervision will be set aside.

10. As regards the third appellant he appeals against his sentence of eighteen months' imprisonment. We are satisfied that that was a perfectly proper sentence in the circumstances of this case. The appeal accordingly will be dismissed.

11. The result will be that the appeal of the first appellant will be allowed to the extent that we have indicated. The appeal of the second appellant against his conviction will be dismissed, and the appeal of the third appellant against sentence will also be dismissed.

Representation:

Appellants in person