Tam Yuen-ming v. The Queen

CACC000513/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 513 OF 1975

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Coram: McMullin J. in Court

Date of Judgment: 18 Augest 1975

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JUDGMENT

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1. The appellant, TAM Yuen-ming, appeals against his conviction for assault with intent to rob.

2. It was the Crown's case that two employees of Kam Yuen Watch Case Factory went to collect the payroll from the Hang Seng Bank on the 4th of April and left the bank at about 1.20 p.m. On the way back to the factory a car No. BB 3038 pulled out from the side of the road and forced their vehicle to come to a standstill. Thereafter three men leaped out of that car and one of them menaced the occupants of the other car which is BE 3622 with something that looked like a pistol. A second man with a chopper menaced one of the victims and a third man swung a hammer and broke the windscreen of the car. The two victims however put up the windows of the car reversed and attempted to get away and upon this apparently the robbers took fright and ran away and escaped in motor car BB 3038. The victims reported to the police and on the 7th of April the car BB 3038 was found and four rubber car mats were examined and a quantity of fractured glass fragments were found in the rear seat and were later examined by a government analyst. This appellant was arrested on the 11th of April at his home and a pair of black leather shoes and some clothing of his were seized at the same time. Upon careful examination glass fragments were found embedded in one of the shoes and the glass fragments were identified by the government analyst as being of a peculiar refractive index found normally in the windscreens of Mercedes motor cars. The appellant was arrested on the 11th and he made a statement to the arresting officer later at the police station in which he denied the offence and on the following day, the 12th, upon charge, he also denied the offence. The principal evidence against him was that of a police constable who said that when he, the police constable, was on duty near the cell in which the appellant was detained the appellant spoke to him and said first of all that he was fed up and then asked him why he was being detained. It was the constable's evidence that he, the constable, did not answer at once but somewhat later apparently he told the accused that a certain detective constable had brought the accused back for robbery. It was that witness's evidence that thereupon the defendant made what amount to a confession to the present defence.

3. Mr. Thomas Wang who appears for the appellant in this court has raised a number of points. First of all he maintained that this evidence was in any event hearsay but I think we do not need to waste any time on that point. It is obviously direct evidence coming from the prisoner himself and although there may be objection to it on other grounds it clearly was direct evidence and not hearsay. Then it is said that there was no body of facts before the court upon which the court could have founded this conviction but this I think was possibly a confusion of two subsidiary points. Firstly, I think a point was being made that the agreed facts should not have been admitted without the written document upon which they were recorded having been signed by the appellant himself. There is clearly no substance in that objection. Under Section 65(c) Subsection 2 of the Criminal Procedure Ordinance an admission may be made before or during the proceedings and certain formalities are required in respect of recording an authentication of the statement if it is made prior to the trial. What happened in the present instance as I understand it is that a body of facts was read to the court by the prosecuting officer from a written document at the commencement of the trial and the facts thus recited (which appear at page 6 of the present record) were agreed by the defence counsel Miss Leung. The second subsidiary point in Mr. Wang's argument is that this body of agreed facts does not contain anything which would show that the victims had identified the appellant. However there is a statement in the agreed facts that an identification parade was held and that nobody was picked out. Therefore the fact that the victims of the attempted robbery were not called is not of any significance although it remains true, as Mr. Wang says, that nobody has identified this appellant as one of the robbers. Mr. Wang then says that it seems a very strange thing that the appellant upon arrest should deny the charge and that later when formally charged he should continue to deny it but that in between those two occasions he should have made what amounts to a full confession. Counsel for the Crown, however, points out that this is not correct and that what in fact occurred was that the two denials were made by the appellant as follows : first of all upon arrest and then later the following day after formal charge and that the alleged confession was made later on in the evening of the latter date. This appears to be so in those circumstances it may be said that the oddity alleged by Mr. Wang loses a good deal of its force.

4. Although the learned magistrate did make a reference in the earlier part of his findings to the specialist's evidence concerning the glass fragments yet in the summary of his reasons for conviction he announced only that he believed the cell constable and did not accept the appellant as a truthful witness. However I am satisfied that he must have had regard to the specialist's evidence which clearly was evidence of the greatest importance in the case. It might have been better if it had been also made part of the agreed facts that one of the cars involved was a Mercedes motor car but I am informed that it is in fact the case. On its own this omission does not seem to me to be sufficient warrant either for allowing the appeal or for sending the case back for re-trial. I very much doubt that that fact was ever in dispute.

5. The appellant called his father to give evidence as to the truth of the appellant's initial statement that on the night in question, and up to five o' clock the following day, he had been at home and sleeping for a great part of the time but the father, although he purported to give evidence that his son was at home, could not identify the date to which he was referring and that evidence was therefore not of very great value in any respect. In the upshot I can find no good reason to say that the learned magistrate was mistaken in the conclusion to which he came and the appeal must be dismissed.

Representation: