Pang Yun Sun v. The Queen

CACC000449/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 449 OF 1968

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Coram: Norley-John J.

Date of Judgment: 12 September 1968

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JUDGMENT

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1. In this case the appellant was found guilty of robbery with aggravation contrary to section 40(1)(a) of the Larceny Ordinance, Cap.210. The appellant has appealed against his said conviction.

2. The learned magistrate in his Statement of Findings stated that the evidence against the appellant rested upon a cautioned statement made by him which amounted to an admission of the offence charged. At the trial before the learned magistrate there were in fact three accused which he described as D1, D2 and D3 - the appellant was D2. However, in his Statement of Findings, the learned magistrate in the first line of his said Statement said that the appellant was the second of three defendants and that he appeared before him with the third defendant. Further on, in his statement the learned magistrate then said the case against D2 and the appellant rested on written statement, and in each case a verbal admission. The learned magistrate then went on to consider a statement made in D.P.C. Chan Fan Ping's (P.W.8) notebook which he said was taken from the appellant. He said that P.W.8 wrote this statement in his notebook for the appellant who signed it as did another constable P.W.9 and that during the trial the appellant challenged the statement on voir dire. When I was shown the original statement alleged to have been made by the appellant I noticed that it was not taken by P.W.8, neither was it signed by him or signed by P.W.9, and, on reference to the record, I noted that the appellant's statement was taken by D.P.C. Chow Kung-hay (P.W.7) and merely signed by the appellant and P.W.7.

3. It is therefore clear from the learned magistrate's statement that he has confused the statement made by D3 with that of the appellant and apparently has not directed his mind to the cautioned statement made by the appellant. I am well aware of the decision in Lam Kau and the Queen⁽¹⁾, when it was held that an appeal from a magistrate's decision under the procedure adopted by the appellant, is an appeal at large. I have therefore carefully perused the record as a whole and I do agree with the learned magistrate that the only evidence against the appellant is his cautioned statement. However, in his Statement of Findings, the learned magistrate did say that it was on the evidence of P.W.8 and P.W.9 and having regard to their demeanour that he was satisfied the appellant's statement was a voluntary statement. and that therefore he was satisfied of the appellant's guilt beyond reasonable doubt. Also, on the last page of the record, the learned magistrate said that the case in his view ...(illegible) on a question of belief, that is whether or not one believes the evidence inter alia of the appellant. He said that the appellant's confession was in his view corroborated strongly by the evidence of Inspector Livesey and a Police Interpreter. I am at a loss to understand why the learned magistrate has said this as Inspector Livesey and the Police Interpreter merely gave evidence of the charging of the second accused at 1600 hours on the 24th of May, 1968 when, in answer to that charge, the appellant merely said: "I have nothing to say" whereas his cautioned statement to P.W.7 was made sometime between 10 a.m. and 10.30 a.m. on that day. Again, I think the learned magistrate has confused the answer to the charge made by the third accused with that of the appellant as it was the third accused who, in answer to the charge, admitted the offence.

4. From the above, it is clear that I cannot accept the statement of facts by the learned magistrate nor his reasoning as shown on the last page of the record.

5. I think it is clear that the learned magistrate has confused the evidence regarding this appellant with the evidence with regard to the third accused at the trial; and under all the circumstances in accordance with the provision of Section 119 of the Magistrates Ordinance I direct that the case against the appellant be heard de novo.

12th September, 1968.

Representation:

Appellant in person.

Carolan, C.C. for Respondent.

Oral Judgment reduced into writing

(1) (1962) H.K.L.R. 234