Ha Chi Binh v. The Queen
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CACC000623/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 623 OF 1980 -----------------
----------------- Coram: Garcia, J. in Court Date of Judgment: 8th August 1980 ----------------- JUDGMENT ----------------- 1. The appellant was originally charged with the following offences:
He was acquitted of the offence in the (B) charge but was convicted of the other two offences and sentenced to be detained in a Detention Centre for both offences. The appellant is a Vietnamese refugee living in the North Kai Tak Refugee Camp, and the facts which give rise to the said charges having been brought against him arose out of his having been seen by a party of police officers who were patrolling the Camp at about 4.50 a.m. on the morning of the 13th of April 1980, with a group of four other Vietnamese men holding a knife in his hand whilst one other of those men was holding a chopper. On the approach of the police officers all of them ran away but the appellant and the other person who was holding the chopper were caught. The appellant was caught with a knife in his hand and he was searched and one part or half of a razor blade in a paper sheath was found in his shirt pocket. He was asked for an explanation for his possession of these articles and it is apparent from the statement which he made eventually that he knows Cantonese and despite his knowledge of Cantonese, he kept silent when questioned about these matters. He was arrested and taken to Ngau Tau Kok Police Station where he made a statement under caution. In that statement he explains the use to which he had put the particular portion of the razor blade, and his explanation was accepted apparently by the Learned Magistrate in his Statement of Findings. In his Statement of Findings the Learned Magistrate said "I did not reject that explanation", that is, the explanation regarding his possession of the razor blade, "but the article was of a kind so commonly used in connection with theft that its use for other purposes, as well, was of little assistance in deciding his guilt or innocence". Having accepted the explanation given by the appellant that he had used the razor blade for the purpose of bleeding his wife who was then ill, it seems that he drew an inference which was adverse to the appellant with regard to the (C) charge, and which, in my view, does not accord with the circumstances under which first of all the appellant was found with the razor blade nor secondly with the explanation given by him. In this respect, I refer to the case of NG Chun-ting v. Reg.(1) where the Learned Chief Justice stated:
These words apply aptly to this case because the Learned Magistrate having accepted the explanation given by the appellant of his use of the razor blade should not have drawn the other inference that the appellant had used or that he was equipping himself with the particular razor blade for the purpose of stealing because there was no evidence presented to him to draw such an inference. It appears that he drew this inference only from his knowledge gained from other cases, i.e., that "the article was of a kind so commonly used in connection with theft" but in this case having expressly accepted the explanation given by the appellant he ought to have found him not guilty of the offence in the (C) charge. There is nothing in what the appellant says regarding the conviction on the (A) charge and the appeal against the conviction on the (A) charge is accordingly dismissed. The appeal against the conviction in the (C) charge is allowed and the sentence which was imposed in respect of that particular charge is quashed. However, the appellant has still to serve the sentence in a Detention Centre for the conviction on the (A) charge.
Representation: Appellant in person G. W. Alderdice, A.C.P., for respondent (1) C.A. No. 731 of 1972 |