The Queen v. Ho Shun Hong

CACC000452/1990

BETWEEN

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Coram: Hon. Fuad, V.-P., Power & Macdougall, JJ.A.

Date of hearing: 9 January 1991

Date of judgment: 9 January 1991

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant and two co-defendants came for trial before Judge Wilson in the District Court on a charge sheet consisting of 19 charges of theft, ten of which alleged that he and one of his two co-defendants, the 1st defendant, stole various items from motor vehicles on unknown dates between October and November 1989. The 1st defendant pleaded guilty to seven charges but the applicant and the remaining defendant, the 3rd defendant, pleaded not guilty. The Crown was content to accept the pleas of guilty by the first defendant to the seven charges and offered no evidence against him on the remainder, whereupon the trial proceeded against the applicant and the 3rd defendant.

2. The prosecution evidence was that the police raided the 1st defendant's home and found a large number of motor vehicle accessories. A swift follow-up raid on the applicant's home resulted in the discovery of five more such items.

3. The applicant made three statements in which he admitted that he had stolen from vehicles on about ten occasions between October and November 1989 and that on each occasion he had driven his own car to the scene where he acted as a lookout. The admissibility of the statements was challenged at the trial, but the judge ruled that they were voluntary and admitted them in evidences. He stated in his Reasons for Verdict that although he had no doubt that the applicant had in fact stolen car accessories on about ten occasions, he was only able to relate the five exhibits found at his home to three of the charges. The judge therefore convicted the applicant on those charges and sentenced him to detention in a Training Centre. He acquitted him on the remaining seven charges. The applicant now seeks leave to appeal against those convictions.

4. Mr. Jackson Poon, who appears on behalf of the applicant, submitted, first, that the judge failed to direct his mind to the fact that the only evidence against the applicant consisted of his cautioned statements. In support of this submission, Mr. Poon cited a passage from Pattinson (1974) Cr. App. R. 417, a case in which the Court of Appeal in England found that the evidence of a disjointed oral statement lasting almost 20 minutes by the defendant to two police officers while he was shaving, but of which no note was made until one and a half hours later, was unreliable. This case has no real relevance to the circumstances in which the applicant made his statements, all three of which were made in a police station and were recorded in writing, read over to the applicant and then read and signed by him. Moreover it is plain that the judge was fully aware, notwithstanding the submission that has been made to us, that the only evidence against the applicant consisted of the confessions in his cautioned statements.

5. It is also contended that the judge failed to direct his mind to the fact that none of the exhibits was identified by the persons from whom they were stolen and that there was no evidence that any one had reported the loss of articles similar to those exhibits at the places or during the period of time stated in the charges.

6. This ground, like the first, is completely misconceived. It is clear from the Reasons for Verdict that the judge was perfectly aware of the fact that the exhibits had not been identified by any one as stolen articles. Indeed it was not necessary for the Crown to adduce any such evidence or to establish that there had been reports of the theft of similar articles from the locations referred to in the charges during the months of October and November 1989. The confession of a defendant that he stole an identifiable article that can be related to a specific charge is quite sufficient to found a conviction.

7. The application is frivolous, Leave to appeal against conviction is refused. Before taking leave of this case, however, we take the opportunity of reminding counsel that the practice direction relating to the settling of grounds of appeal states that it is counsel's duty to ensure that grounds are not put forward unless they are reasonable, that is, they afford some real chance of success. It is not counsel's duty to put forward grounds merely because the appellant wishes him to do so.

Representation:

Mr. D.G. Saw, Senior Crown Counsel for Crown Prosecutor

Mr. Jackson Poon instructed by Chan & Kong for Applicant