Tang Ah Yiu v. The Queen

CACC000549/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 549 OF 1971

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Coram: Pickering, J.

Date of Judgment: 29th October, 1971.

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JUDGMENT

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1. The appellant was charged with robbery and with possession of an offensive weapon, a triangular file; he was convicted and sentenced to one year's imprisonment on the first charge and three months imprisonment, to be served concurrently, on the second charge. He appeals against the convictions.

2. The evidence was that at about 4:30 a.m. on 7th July, 1971, a watchman was sleeping outside a construction site in Un Chau Street when someone stabbed him in the stomach and took away his wrist watch. The street was dimly lit and he could not see his assailent clearly but assessed his age at "about 30 years". The watchman reported the incident to the police and was sent to hospital where, some hours later, a policeman produced three watches to him none of which, upon his own evidence, the watchman was able to identify as his, allegedly because his eye-sight was bad. On the other hand, according to the evidence of the police officer, the victim picked out one watch as his. In court the victim failed to identify the watch produced as an exhibit, except to the extent that he said that it was of similar size to his own watch; the bracelet, he said, was different from that on his watch.

3. At 10:20 a.m. on the morning of the robbery, police officers approached the appellant at the junction of Fuk Wah Street and Kweilin Street and told him that they had reason to believe that he had been involved in this robbery, to which the appellant replied "I know about the robbery but I did not do it myself". Upon his being searched, a triangular, sharpened file was found in the top of the appellant's trousers. This file was subsequently found to have human blood stains upon the blade in a quantity insufficient for blood grouping.

4. Later, at the Police Station, the appellant told the police that he knew where the watch was. Having been cautioned, he led the police to a staircase landing at 134 Fuk Wah Street where he identified a bed as his, and took the watch produced in court from underneath the pillow.

5. It was the evidence of the appellant that he had been released from Tong Fuk Prison on the morning of the 6th of July and was met by two police officers, subsequently witnesses at his trial, at the ferry and invited to tea. He says that he was then asked to admit charges of theft and unlawful possession and told that he would be paid $100 if he did admit these charges, which he refused to do. He gave his address to the police officers as being the staircase landing at 134 Fuk Wah Street and said that he was not subsequently arrested where described by the police, but at that staircase landing which the police searched unsuscessfully. He was taken to the police station where, he says, he was kicked and punched several times - treatment which induced him to sign a statement, said by the learned magistrate, in his statement of Findings, to have been produced by the prosecution. There is no such statement in the court record and no record in the evidence of any statement ever having been produced, nor has this Court any information as to the contents of any such statement.

6. The learned magistrate said that he was satisfied beyond reasonable doubt that the constables had arrested the appellant at the junction of Fuk Wah Street and Kweilin Street and not, as the appellant alleged, at the staircase of 134 Fuk Wah Street; that the appellant was then in possession of a bloodstained file, though he alleged that this was later planted upon him; that the appellant had admitted to the police that he knew about the robbery, knew where the watch was and had taken the police to the staircase landing where, from underneath a pillow on the bed, he produced the watch exhibited in court.

7. The learned magistrate said that taking into account the whole of the evidence, the appellant's possession of a bloodstained file, and his failure to give any explanation for his possession of the file or the bloodstain on it, and bearing in mind the doctrine of recent possession and the appellant's admission that the watch produced from beneath his pillow was the watch stolen in the robbery, he was satisfied beyond reasonable doubt that the appellant was in fact guilty of both charges.

8. With respect to the learned magistrate I am unable to agree that the evidence upon which the conviction on the first charge was based, amounts to proof beyond reasonable doubt. Ample suspicion existed, but it is trite to say that suspicion is not enough. Thus the appellant's admission that he knew of the robbery, was accompanied by an explicit disclaimer of being the robber; the watch produced in court was not identified by the victim; the doctrine of recent possession "borne in mind" by the learned magistrate cannot be called in aid where the property in possession is not shown to be the property stolen; the appellant's age, relied upon to some extent by the court in regard to identification, was never given in evidence nor was it stated from where the information as to age which appears on the charge sheet, had been obtained; and though the magistrate says that the appellant "would not be stopped" from mentioning his previous criminal record, the magistrate allowed, without interference, a considerable measure of cross-examination upon that record, during the course of which, so far from the appellant being unable to be stopped and importing his record into the evidence entirely by himself, as suggested in the Statement of Findings, details were plainly extracted from him; moreover no written statement of the appellant was produced as stated in the Statement of Findings.

9. Suspicion abounds but proof beyond reasonable doubt has its lacunae so far as the first charge is concerned.

10. The appeal is allowed upon the first charge and the conviction and sentence thereon set aside. The appeal against conviction for the offence of possession of an offensive weapon is dismissed.

Representation:

Donnelly for Appellant

Carolan, C.C. for Crown.