Wong Ying Chau v. The Queen
Read the full judgment text of CACC 51/1980 on BabelCite. This Court of Appeal judgment was delivered on 1 February 1980.
1. This is an appeal against conviction entered by the learned magistrate sitting at North Kowloon on 14.12.79 when he found the appellant guilty of 3 charges of theft and one of causing wasteful employment of the police under section 91(2) of the Criminal Procedure Ordinance, Cap. 221.
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CACC000051/1980
IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 51 OF 1980 -----------------
----------------- Coram: Addison, J. Date of Judgment: 1 February 1980 ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction entered by the learned magistrate sitting at North Kowloon on 14.12.79 when he found the appellant guilty of 3 charges of theft and one of causing wasteful employment of the police under section 91(2) of the Criminal Procedure Ordinance, Cap. 221. 2. Each charge of theft involved the snatching of a gold chain from the victim's neck. In charge A and B the victims were women. In charge D the victim was a 16 year old boy. 3. The charges were not set out in chronological order for some inexplicable reason. Taking them in the order they were preferred the complainant in the A charge, Fan Hau-lin, gave evidence her necklace was stolen on 25.9.79 by a man who first hit her shoulder before snatching her necklace. She turned round when her shoulder was hit and she chased the culprit for a couple of blocks. He escaped. She reported the theft. On the 1st October 1979 at Cheung Sha Wan police station she identified the defendant as the thief. Her necklace has not been recovered. 4. The evidence of the complainant in the C charged was almost identical. She had her necklace stolen on 14.9.79. She said her shoulder was knocked by someone who snatched her necklace. She turned round and caught a glimpse of the villain. She ran after him. She said:
5. She too identified the defendant at the identification parade held on 1.10.79 at Cheung Sha Wan police station. 6. The victim of the D charge is Wong Kai-wong. He is 16 years of age. He failed to identify the accused as the person who snatched his necklace. His property has not been recovered. 7. The prosecution did not call the officer who conducted the identification parade. In my opinion he should have been called and for obvious reasons. I can only assume he was not called because of the desire to save the court's time. I can think of no worse reason. There was nothing before the court to show the parade was properly conducted in every respect. Only the officer conducting the parade could give that evidence and such evidence was inexcusably absent. 8. The learned magistrate did not in his statement of findings refer to the guidelines laid down in the case of Turnbull v. R. (1976) 63 Cr.App.R. 132 (C.A.) He did not consider that a sincere witness may be as faulty in identification as anyone else. 9. When he did say was:
10. The defendant gave no evidence at his trial. Pointing out this fact the learned magistrate then added:
11. In the absence of the learned magistrate properly directing himself in accordance with the guidelines laid down in Turnbull's case I would have little hesitation in allowing this appeal. However there were a number of confession statements taken and the learned magistrate admitted those statements in evidence. 12. I have carefully considered the evidence surrounding the taking of those statements which were made before the day on which identification parade was held. In respect of the alleged confession to the A charge the learned magistrate held a voir-dire examination at which the accused elected not to give evidence. It was inevitable that the confession would be admitted in evidence. The appellant had no objection to the remaining confessions being admitted in evidence though he was invited by the learned magistrate to tender objection to their admissibility if he had any. 13. Those statements were taken by DC 7577, Chow Fong, who alone was present with the appellant. There were 4 confessions and not all were taken on the dame day. The weight to be attached to those confessions was a matter entirely within the perrogative of the trial magistrate. It is clear from his conclusions that he treated those confessions as being entirely dependable. I say that because in respect of the B charge of causing wasteful employment of the police there was no evidence other than that of the confession Ex. P2. Also apart from the confession Ex. P4, there was no evidence as to the appellant's involvement on the D charge. 14. The appellant gave no evidence at his trial and essentially the matter to be determined by the learned magistrate was whether or not the evidence adduced by the prosecution was in itself sufficient to satisfy him beyond reasonable doubt as to the guilt of the accused on any or all of the charges preferred. In my opinion there was sufficient evidence to justify the conclusion reached by the learned magistrate. No objection has been taken on this appeal to the inclusion of the B charge. 15. In all circumstances I cannot say the learned magistrate erred in reaching the conclusion that he did. Accordingly the appeal is dismissed.
Representation: Mr. Cunningham, Counsel for Crown |