Cheung Shi-tong and Others v. The Queen
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CACC000624/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 624 OF 1972 -----------------
Coram: Full Court (Briggs, McMullin and Pickering, JJ.) Date of Judgment: 8th June, 1973. ----------------- JUDGMENT ----------------- McMullin, J.: 1. On the 5th of May 1972 three men broke into the Tung On Goldsmith Shop in Kowloon at about 5.00 p.m. One of them was armed with what appeared to be a pistol and another was armed with a knife. Using these weapons the three men held up the proprietor and his assistants, removed a quantity of gold ornaments amounting in value to $23,486.00 and then ran off. A policeman on duty nearby saw one of the robbers running and he pursued and captured him and discovered him to be in possession of an imitation firearm. This man was CHEUNG Shi-tong originally the first accused in the case. He was arrested and taken to a police station and a statement was recorded from him. Thereafter about 6.30 p.m. he led six policemen to No. 96, Yen Chau Street, an apartment block, and led them upstairs to the sixth floor to a flat in which the second, third and fourth of the persons originally accused before the court were found sitting on a bed with an open parcel full of gold ornaments displayed on the bed between the second and the third accused. All three were arrested and were later charged together with the first accused. The gold ornaments were later identified by the proprietor of the shop and were in fact the whole of the property stolen on this occasion. The first accused and the second accused, YU Hon-po, pleaded guilty to the offence of robbery and the first accused pleaded guilty in addition to a charge of possession of an imitation firearm. The weapon was in fact an automatic starting pistol. The third accused, YIM Kwok-kay and the fourth accused MOK Yiu-kau pleaded not guilty and they were tried and convicted on the robbery charge. Both of them gave evidence in the case the defence of each of them being one of innocent presence at the flat, the tenant of which was apparently the sister of the fourth accused. In addition, the two accused who had pleaded guilty gave evidence on behalf of the defence in which they each denied that either of the other accused had been a party to the robbery. The fourth defendant, in addition, called both his father and mother who purported to cover his movements up to about 4.45 on the day of the robbery. It was the fourth accused's case that thereafter he had gone to a cinema with a life-long friend of his. This person although named was never called for the defence. The third accused called his mother who purported to give him a total alibi saying that upon the day in question he had spent the whole of the day with her up to 5.00 p.m. at which time he went out to look for tickets for a cinema which they proposed to attend. The fourth accused's sister gave evidence which in general confirmed his account of his movements, and which confirmed also the first and second accused's statement that the presence of the third and fourth accused at the flat was innocent and that they knew nothing about the robbery or about the gold ornaments which the second accused, as he admitted, had brought into the flat. The only evidence against the third accused on the offence as charged was, in effect, his suspicious proximity to the stolen goods shortly after the robbery. The learned trial judge explained in clear and simple terms the doctrine of recent possession and pointed out that such recent possession if it was coupled with either a failure to give an explanation to the court or with an explanation which the jury could not accept would in itself afford evidence upon which they might convict of robbery or alternatively of handling stolen property. It was clear that, since the evidence was that only three men had actually entered the shop and effected the theft, it was not possible that both the third and the fourth accused could have been active participants in the actual taking of the gold ornaments. If therefore the case of the third and fourth accused had stood upon the same foundation it would not have been possible to convict either of them on the basis that either one had actually entered the shop and was the third person observed by the occupants. The only basis for a conviction in that state of facts would have been that the jury was satisfied that the third and fourth accused were parties to a conspiracy to rob if the jury were satisfied that their position at the time of their discovery showed them to be knowingly in possession with the second accused of the stolen goods. In fact however the case of the fourth accused stood in quite a different state from that of the third because the proprietor of the goldsmith shop, both at a formal identification parade held by the police and later at the trial, purported to identify the fourth accused as one of the three men who entered the shop. There was in addition the evidence of a police sergeant who entered the flat with the other police officers and who told the court that the fourth accused, it would seem as a result of a direct enquiry by him, volunteered the information that certain labels which had been attached to the golden ornaments had been disposed of by burning them and washing them down the sink. The third accused gave similar evidence on this matter saying, in examination-in-chief, that the second accused asked the fourth accused to take the labels away and burn them and that the fourth accused did so. In cross-examination he withdrew this positive statement and when pressed as to whether he had seen the fourth defendant actually touching the labels said that "may be he had forgotten". In re-examination he appeared to repeat that the fourth accused had been asked to take the labels away by the second accused and that thereafter the 4th accused had left the room. On this evidence the jury acquitted the third accused and convicted the fourth as charged. 2. Three points are made upon the appeal of the 3rd appellant against conviction. Firstly, it is said that the indictment was defective. Mr. Eddis pointed out that the learned trial judge had directed the jury on the possibility of an alternative conviction under Section 24 of the Theft Ordinance if they were not satisfied, as to either of the accused, that he had taken part in the actual robbery itself whether as principal or as aider or abettor. He relied upon the decision of Phillimore, L.J. in Reg. v. Woods(1) for the proposition that the offence of handling stolen property must be made the subject of an alternative charge before it is proper to invite the jury to consider such a charge by way of alternative to the principal charge. Even assuming that this states the law correctly as it now obtains in Hong Kong, the most counsel was able to make of it was that, since the trial judge had left the alternative to the jury, he may have confused them into believing that evidence which was strong enough to prove a case of handling was also strong enough to prove actual robbery. It seems most unlikely that any confusion of the sort can have arisen firstly, because the jury in fact acquitted the third accused against whom the only evidence seemed to show a case of handling rather than robbery, and secondly, because they convicted the fourth accused against whom there stood in addition the two items of evidence already referred to. As to the alleged defect in the indictment, if the jury had convicted the appellant of handling then, assuming that counsel's initial proposition was true, there might indeed have been substantial ground for complaint. But this contention lacked not only the factual basis to give it substance but overlooked in addition a vital distinction between the English law and the law. in Hong Kong in that there is no provision in the Theft Act of 1968 equivalent to the power expressly conferred upon courts in Hong Kong to convict of handling stolen goods (among other possible alternative offences) upon an indictment charging robbery. That provision is contained, of course, in the schedule to the Theft Ordinance. 3. Secondly, it is said that the judge misdirected the jury on the evidence concerning the alleged burning of the labels by the fourth accused. The suggestion here was that, whereas the learned judge had directed the jury in terms which indicated that he believed the evidence to show that the fourth accused had actually admitted burning the labels when asked about them by the sergeant, that the sergeant's evidence went no further in fact than saying that the appellant had said that the labels had been burned. There is nothing in this point. The evidence of the sergeant was that the fourth accused had volunteered the information as to the labels and that he had led the sergeant to the toilet where they found a metal plate still hot and that the accused had told him to examine the plate if he did not believe what he (the accused) had said. This coupled with the evidence of the third accused that the second accused had asked the fourth accused to take the labels and burn them and that the fourth accused had then left the room was fully sufficient, notwithstanding the absence of an explicit admission by the fourth accused himself, to justify the jury in the inference that he had in fact admitted to having burned them. 4. Thirdly, it is said that the evidence of identification was unsatisfactory. There were some minor confusions in the evidence of Inspector Boyton but a perusal of the record of the evidence has satisfied us that they are more apparent than real and there can be no doubt whatsoever that the proprietor of the goldsmith shop made a positive identification of the accused after careful scrutiny. He was strongly pressed in cross-examination as to the reason for making such a positive identification both there and in the court. As so often occurs he was thus driven to associate the identification process with certain features in the appearance of the accused and he said that he recognised him because of his whitish complexion and the fact that he had been wearing spectacles. The accused does indeed wear very thick spectacles (although he was without them on the identification parade) and Mr. Eddis stressed this point separately from the whole question of identification because it was the evidence of the proprietor of the shop that one of the robbers was wearing spectacles which he removed as soon as he came into the shop. He was asked if the third robber appeared to be able to see properly or whether he stumbled and he replied that he moved surely and swiftly. The suggestion here is that anybody who needs glasses as thick as this appellant would scarcely remove them at such a time. There was no evidence concerning the condition of the appellant's eyes and apart from one or two questions in cross-examination of the complainant Mr. Chan no attempt was made to further the suggestion that the appellant would be incapable of seeing adequately without his glasses. The dangers inherent in identification evidence need no recapitulation here and they were indeed put clearly to the jury. Nothing that has been said by way of criticism of this identification evidence is of sufficient weight to induce us to the view that the jury should not have placed any reliance upon it. The cases referred to by Mr. Eddis in this regard are not of great assistance moving as they do upon their special facts. At the identification parade the first, the second and the fourth accused were all on the parade and it is true that the complainant, Mr. Chan, picked out only the first and the fourth accused. He gave reasons, however, for having noticed the two whom he identified : the first accused was the person with a gun and he claimed that the fourth accused was holding a knife and a travelling bag. As regards the fourth accused there was also the factor that he had seen him with glasses and also without his glasses. We see no reason to interfere with the conviction and the appeal against conviction is dismissed. 5. As to sentence, the first and second appellants' appeals were against sentence only. These appeals were dismissed at the conclusion of the hearing and nothing further need be said in their regard. With regard to the third appellant, Mr. Eddis urged upon us the view that the appellant's part was minor in as much as he was not, as were the others, armed. He based this view upon the fact that in opening the case counsel for the Crown alleged that the appellant was the one who held the bag and that it was the second accused who had held the knife. As has been pointed out above the complainant, Mr. Chan, was clearly of the opinion that it was the fourth accused, the present appellant, who had held the knife. Even assuming, however, that he was wrong in this and that he had confused this part of the events which he purported to describe there is really nothing in the point. All three who took part were clearly co-operating in a design which involved the use of these dangerous weapons. The trial judge indicated that the seven years imposed in respect of the two appellants who pleaded guilty was a figure which took into account the plea of guilty. Those were perfectly proper sentences we do not think that any valid criticism can be made of the 7 ½ years imposed upon the present appellant. The appeal against sentence is also dismissed. Representation: Wesley Wong instructed by Director of Legal Aid for 1st and 2nd appellants. F.A.L. Eddis instructed by Samuel Soo & Co. for 3rd appellant. I.S.W. Donaldson, C.C. for respondent. (1) (1969) 1 Q.B.D. 447. |