Yuen Kam Chuen v. The Queen
Read the full judgment text of CACC 435/1973 on BabelCite. This Court of Appeal judgment.
1. The appellant was charged with theft from the person, contrary to s.9 of the Theft Ordinance, Cap. 210, in that on the 5th of February, 1973, at the entrance to the Tiger Balm Gardens he stole a brown paper bag containing U.S. $257, 182,000 Japanese Yen and Thai $5, the property of an unknown person.
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CACC000435/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 435 OF 1973 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 3rd July, 1973. ----------------- JUDGMENT ----------------- 1. The appellant was charged with theft from the person, contrary to s.9 of the Theft Ordinance, Cap. 210, in that on the 5th of February, 1973, at the entrance to the Tiger Balm Gardens he stole a brown paper bag containing U.S. $257, 182,000 Japanese Yen and Thai $5, the property of an unknown person. 2. On the evidence as it emerged, the learned magistrate amended that charge to embrace merely the Japanese Yen contained in the original charge. After a trial the appellant was convicted upon that amended charge and sentenced to 18 months imprisonment. He has appealed against conviction, and this morning, upon the application of Mr. Sedgwick who appears for him, I granted him leave to appeal out of time in respect of the sentence also. 3. In respect of conviction, Mr. Sedgwick puts forward two grounds, the first being that the learned magistrate wrongly admitted certain evidence adduced from the second prosecution witness. Two passages are complained of. The first runs as follows:
Here the witness was speaking of his own presence outside the Tiger Balm Gardens and his reasons for being there. Unusually, instead of adopting the usual formula, "acting on information received", he told the Court the precise nature of his information. Subsequently the same witness said this, and this is the second passage of which Mr. Sedgwick complains:
It is Mr. Sedgwick's complaint that the evidence was inadmissible both because it was hearsay and because it tended to imply that the appellant was a known pickpocket, and counsel urges that on a consideration of the whole proceedings, there is a probability that the improper admission of this evidence turned the scale against the appellant. 4. The learned magistrate, counsel contended, had failed to warn himself to disregard this evidence, and indeed, had stated in his statement of findings that those findings were based on a consideration of the whole of the evidence, not merely on those parts which were properly admitted. In the alternative it is urged that if that evidence was admissible it ought not to have been received because its prejudicial value far outweighed its probative value, if any. 5. Mr. Alderdice, for the Crown, was constrained to agree that the evidence was inadmissible but argued that it was not necessarily prejudicial. In pursuance of his argument, Mr. Sedgwick quoted a number of cases, notably Fisher(1) - where a conviction was set aside because inadmissible evidence may have influenced the jury; Ellis(2) - where a conviction was similarly set aside because it was held that the inadmissible evidence must have influenced the jury; Rodley(3) - where it was held the jury may have been influenced and the court refused to apply the proviso; Beecham(4) - where there had been improper cross-examination as to character, though in this case the proviso was applied and the conviction upheld; in Redd (5) - there was again improper cross-examination as to character and the Court held that it was impossible to say that the jury might not have doubted guilt had that evidence not been admitted. The Court refused to apply the proviso. In Taylor(6) - the conviction was quashed despite a specific warning to the jury to ignore evidence which had been inadvertently admitted. In Slender(7) - evidence had been admitted of a previous attempt to defraud and the conviction was quashed. In addition Mr. Sedgwick quoted the case of Parker(8). 6. There is, as I see it, an essential difference between the present case and these various cases cited by counsel for the appellant, which is that all those cases were jury cases, whereas in the present case we are dealing with a stipendiary magistrate, a professional lawyer sitting both as judge and jury. Mr. Sedgwick has urged that although the Full Court has said that after holding a voire dire, a professional magistrate should be considered competent to exclude from his mind matters which have emerged on the voire dire when subsequently he comes to consider the evidence at large, that same principle should not follow in a case such as this where inadmissible evidence has been let in, without - I may add - objection by the lawyer (not Mr. Sedgwick) who represented the appellant in the Court below. 7. It has been said that if you are capable of thinking of something which is inextricably mixed up with something else without thinking of the thing with which it is inextricably mixed up, you have a judicial mind, and I think I must attribute that professional ability to the learned magistrate in the Court below. It is true that he does not say that he consciously exercised that ability, but I think it unnecessary to pursue that aspect of the matter because it is not the real crux of this case. In parenthesis, at this stage, I would say that another difference between the cases quoted by Mr. Sedgwick and the present case is that in the majority of the quoted cases, what was let into the evidence improperly was the existence of previous criminal convictions. The evidence let in in this case was less serious. 8. But the crux of the case lies in the evidence of the first prosecution witness. He provided actual eye-witness evidence of the theft from the hip pocket of a Japanese gentleman in the Tiger Balm Gardens. Mr. Sedgwick invites me to consider whether or not that evidence is as compelling as the Crown suggests it to be. The only possible answer to that rhetorical question is that, if believed, the evidence was conclusive, and it was so believed by the learned magistrate. I am of the view that whether or not the inadmissible evidence, to which exception has quite properly been taken in this Court had been put in, the conviction was inevitable. In all the circumstances the appeal against conviction must be dismissed. 9. In the matter of sentence the appellant, as I have said, was sentenced to 18 months imprisonment. He has a previous conviction some six years ago for the same offence, when he was bound over in the sum of $200 for 12 months. He has subsequently twice been convicted of being a suspected person, found loitering and on each occasion has been fined. This is his first prison sentence. 10. Two aspects of his offence appear to me to aggravate it. One is that this was pickpocketing at a well-known tourist spot; in addition to the ordinary incidence of the criminal offence it was a tourist who was robbed. Such robberies convey a bad image of this Colony overseas. The second consideration is that on the perfectly admissible evidence of the first prosecution witness, the appellant had a car in which he stowed away the proceeds of this particular robbery. In other words, this was an organised course of conduct - not something done on sudden impulse - and the inference is very strong that in putting this money into the car the appellant had not finished and was merely stowing away the proceeds of one particular robbery that afternoon. 11. I am unable to say that the sentence of 18 months imprisonment is inappropriate and the appeal against sentence is also dismissed. Representation: Sedgwick (Samuel Soo & Co.) for appellant Alderdice, C.C., for respondent. (1) 3 Cr. App. R. 176 (2) 5 Cr. App. R. 41 (3) 9 Cr. App. R. 69 (4) 16 Cr. App. R. 26 (5) 17 Cr. App. R. 36 (6) 25 Cr. App. R. 46 (7) 26 Cr. App. R. 155 (8) ...(illegible) 1003. |