The Queen v. Leung Sui Tai

CACC000523/1984

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons and Fuad, JJ.A.

Date of Hearing: 28 December 1984

Date of Delivery of Judgment: 28 December 1984

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J U D G M E N T

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Cons, J.A. delivered the judgment of the Court:

1. The Appellant was convicted in the Kowloon District Court of robbery. The offence was committed in the small hours of the morning at a block of flats in Waterloo Road. A man and a woman persuaded the caretaker of the flats to unlock the entrance gate on a pretext of visiting somebody inside. As soon as he had done so two men, perhaps more, rushed in. One of the two men held a knife, the other was the Appellant. Together they dragged the caretaker away, bound him with wire and gagged him with adhesive tape.

2. Fortunately the place where the two had taken the caretaker was overlooked by the window of where his supervisor lived. He observed what was happening and telephoned the police. Before long a police patrol was at the scene.

3. On seeing the police arrive the Appellant attempted to-runaway, but was caught by a constable after a short chase. Tucked in the waistband of his trousers was a knife, and in a pocket, four rolls of wire. Adhering to the outside of his trousers was a long strip of adhesive tape and traces of similar material were found on one of his hands. He was taken to the police patrol vehicle where, after being cautioned, he made a statement in which he admitted having tired up the watchman.

4. At his trial the Appellant contended that he had been arrested by mistake when innocently walking past the building, a predicament into which he had been forced when the taxi he had engaged to take him to meet a friend had suffered a puncture; the evidence as to what was found on his person was not true; and the cautioned statement had been forced from him by assaults.

5. One ground of complaint by the Appellant is that the victim was unable to recognise in Court the knife that had been found upon him. That however was consistent with the prosecution case, for there was no suggestion that the Appellant had used the knife at all. It was his colleague who had brandished it on entry.

6. The other ground of complaint is that the Judge believed the police witnesses and disbelieved the Appellant. Who is to be believed or disbelieved is something intrinsically for the trial Judge, who is much better placed to judge such matters than this Court, which will only interfere in a decision of that kind for good reason. None exists here.

7. There is however, one aspect of the Judge's decision to which we would like to draw attention. When the constable had arrested the Appellant in the circumstances we have just outlined, he asked the Appellant whether he had taken part in the robbery. The judge thought that to be improper. He took it to be "in clear breach of Old Judges Rule 2" and something that "must be strongly condemned judicially".

8. With every respect to the learned Judge we do not think the criticism is justified. All that. the constable knew at that stage was, on the one hand that a robbery had been committed, and on the other that the Appellant was in the same vicinity, carrying articles that one would not expect to find on an honest citizen abroad at that time of the morning. It was the constable's duty to investigate any possible connection between the two states of affairs and in doing so he was entitled to question the Appellant. In our view there was no need for any prior caution. It could not be said that the constable was already in possession of "information which he could put before the Court as the beginning of a case": see R. v. Osbourne and Virtue⁽¹⁾. Nor seems there to be anything to suggest that the constable had already made up his mind to charge the Appellant with the particular crime. The position changed of course once the affirmative answer was given, but the constable clearly recognised that and the usual caution was then, as we earlier indicated, duly administered.

(1)    (1973) Q. B. 678 at 688

Representation:

Appellant in person.

Mr. G. Harris, Crown Counsel for Respondent.