Chiu Chi Yeung v. The Queen

CACC001067/1980

Appellant found in possession of properties suspected to be stolen - charged with robbery and handling stolen property - admitted robbery in cautioned statement - victim of robbery not called - prosecution conceded at trial insufficient evidence to support charge of robbery. Trial convicted Appellant of alternate offence of theft. Having regard to the allied circumstance illogical to convict appellant of theft. No evidence to distinguish properties which were subject matter of robbery and those relating to handling charge. More logical to substitute conviction of theft to one of handling stolen property. The 2nd and separate conviction of handling stolen property is quashed.

Coram: Li JA, Addison & Silke JJ

Date of Judgment: 12th June, 1981

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JUDGMENT

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Li J.A.

1. The Appellant was charged originally with one charge of robbery and another charge of handing stolen property. After the hearing, he was convicted of the charge of theft in substitution for robbery and the second charge of handling stolen property. He now appeals against conviction.

2. In the morning of the 16th March a police officer saw the Appellant walking along Nathan Road acting in suspicious manner. He was stopped and searched. A variety of cash and ornaments were found on his person. He was asked where he obtained them. He answered that all those things were given to him by his aunt who lived in the vicinity of Nathan Road adding that he was prepared to take the constable to his aunt to prove that fact. Another constable by that time arrived and joined in. The constable disbelieved his explanation. He started to run away when the constable tried to call a car to take him to a police station. There was a chase up to the Golden Harvest Theatre. There followed a struggle. He was finally subdued. In answer to the same question by the same constable as to how he came into possession of those articles, he verbally said that they were the property obtained in a robbery.

3. He was brought back to the Yaumatei Police Station where he made a statement. Subsequently, it was found that the things in his possession were the subject matter of a robbery committed in the North Point area in the small hours of the 16th March. He was taken to the North Point Police Station.

4. There were further inquiries on the 17th March. He made another cautioned statement to the police officer attached to the North Point Police Station. Both statements were produced before the trial judge. The admissibility of both statements was strongly contested. After a voire dire the learned trial judge felt that he had a doubt in respect of the voluntariness of the statement made on the 16th March and rejected it. However, he decided that the statement made by the Appellant on the 17th March was a voluntary statement and accordingly he admitted it as evidence. The reasons for his so ruling are fully set out and I shall not repeat them.

5. We are quite convinced that the question of voluntariness in respect of a cautioned statement is a matter for the trial judge after a voire dire. The question of weight to be attached to an admitted cautioned statement is also for the trial judge as a judge of fact. We see no reason to interfere with his ruling in this respect - there being no error in questions of law in the judge's ruling. We also find that the evidence adduced in the main trial was not sufficiently strong to cause us to interfere with the judge's discretion. Indeed it was not sufficient to cause the judge to review his former finding of the voluntary nature of that statement or to have caused the judge not to give any weight to that statement. He had already considered all the contradictory matters that were brought to his attention in the course of cross examination. As we said the matter of weight was entirely for him.

6. At the end of the proceedings counsel for the crown conceded in the court below that there was no evidence to support the charge of robbery. This, in some manner, surprises us in view of the evidence adduced. Indeed learned counsel for the Crown in his appeal is similarly surprised and cannot offer an explanation for this concession. Such concession in our mind forced the learned trial judge into an invidious position. This was so particularly when the victim of the alleged robbery was never called to give evidence nor was there any evidence adduced to identify individual items of property that had been stolen. As a result it was put to the learned trial judge there could be two alternatives in respect of the first charge; theft, or handling stolen property. The judge took the middle course and convicted the Appellant on the first charge of theft.

7. We think that counsel for the Crown should not have placed the court in the dilemma he did. Like the trial judge we find the whole position perplexing and the least said about that the better. However, we feel that the first offence should have been one of robbery. When it was conceded that there was insufficient evidence to support a charge of robbery a conviction of theft was equally unsafe because, having regard to the evidence adduced in the present case, theft was so allied to the case of robbery which had already been abandoned by learned counsel for the prosecution.

8. Learned counsel for the Appellant advances no less than seven grounds of appeal. The seventh is in general terms. She is relying on the first six grounds. The first three grounds of appeal are set out in the notice of appeal are overlapping and inter-related. They all point at the statement dated the 17th March, 1980. We have said already that that was a matter for the judge and, having reviewed the circumstances of the case, we see no reason why we should interfere with the judge's ruling. As to the 4th, 5th and 6th grounds, these were not pursued in view of this Court upholding the judge's ruling as to the voluntariness of the Appellant's confession.

9. Learned counsel for the Crown drew our attention to the evidence. He invited us to say that, having regard to the concession made by counsel for the prosecution in the court below, it does not debar us from exercising our powers under section 83(a) of the Criminal Procedure Ordinance to convict the Appellant of handling stolen property in respect of the first charge. We find this a proper approach. Since robbery and theft are so closely allied to one another, once it was conceded that there was no robbery we do not find it logical to convict the Appellant of theft in respect of the first charge. That doesn't mean, however, that the trial judge may have no regard whatsoever to the cautioned statement dated the 17th March. There is evidence of a verbal admission at the Golden Harvest Theatre. There is also evidence of the Appellant being found in an open street in possession of a variety of articles. He did not give a satisfactory explanation. In his statement on the 17th March, he said:

"I and another man called Sha Tam Hung walked into the room, pointed knife at two females who were sleeping in the house. At the same time we asked two females not to utter any sound. We asked them to cover up their heads with the cotton quilt and not to look at us. Subsequently I and Sha Tam Hung searched for the property inside the room, later I took away from the room, the money, gold ornaments, wrist watches and cameras and used a bag to contain all those items. We left by the main door and took a lift to downstairs to the street. We then caught a taxi to go back to Kowloon and alighted from the taxi at London Theatre. I and Sha Tam Hung walked to a side lane in the vicinity where Sha Tam Hung took out the gold ornament and money and gave them to me asking me to realize the gold. The cameras were kept by himself. He then took a taxi to go away. As he left, he asked me to wait for him at the London Theatre 10 a.m. that day. I subsequently went for tea at the teahouse. After tea I walked out to the street with a view to realising the gold ornament but was still early at the time and was not yet time for the goldsmith shop to open door. Because Sha Tam Hung had arranged to meet at 10 a.m. I walked to London's Theatre. However, while on my way I was stopped by two policemen who searched me and later brought to police station."

10. The Appellant was found with a variety of articles the possession of which he could not explain. He had reason to know that they were stolen property. We find that we can in this unusual case exercise our powers under section 83(a) of the Criminal Procedure Ordinance and substitute a conviction of handling stolen property in lieu of the conviction of theft.

11. Regarding the second charge we find no evidence that the articles found on the Appellant being property stolen from another place or on another occasion. We see no reason why a separate charge was preferred in respect of the items forming the subject matter of the second count. Those items were found on the Appellant at the same time as those forming the subject matter of the first count. There was no feature distinguishing them into two separate categories and in view of the lack of evidence adduced and the concession made we feel that the second charge was otiose and the conviction unsupportable. Accordingly the conviction of the second charge must be quashed and the sentence thereof set aside. The Appellant is convicted of handling stolen property in respect of the first charge only. The sentence for the 1st charge remains.

Representation:

Miss C. Remedios, instructed by (Director of Legal Aid) for the Appellant

Mr. Jackson for Crown/respondent