The Queen v. Wong Chi-hung

CACC000665/1983

BETWEEN

Coram: Hon. McMullin, V.-P., in court

Date: 21st June 1983

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JUDGMENT

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McMullin, V.-P.:

1. The appellant was convicted by a magistrate upon a single charge under Section 9 of the Theft Ordinance. There is to my mind one substantial point in this appeal. The particulars of the charge are as follows: "Wong Chi-hung, you are charged that on the 17th day of September, 1982, at outside Wah Yue Court, Hong Ping Street, Chai Wan, Hong Kong, in this Colony, you together with another person not in custody did steal one 'National' cassette radio, valued at $400-HK, from private car registration number CJ 1378, the property of CHAN Siu-hon."

2. The complainant Chan Siu-hon was called and gave evidence to the effect that he had parked that car on the 17th of September, no time being stated, in parking space 29 at Wah Yue Court. The following day when he came to his car he discovered that the car doors were damaged and from a small luggage compartment in the front he found that what he described as a National Walkman, blue in colour, had been taken. He went on to describe the colour as navy blue. The only direct evidence against the appellant consisted of a statement taken from him by the 3rd prosecution witness, PC 22603, on the 2nd of February, at about 11 p.m. at Chaiwan police station. There is recorded in that statement in the usual way a preliminary recital of the facts with which the investigating officer was concerned.   The substance of these facts is as follows: that there had been a theft from a vehicle which occurred between 12:30 p.m. and 1:45 p.m. on the 18th of September 1982. The registration *number of the car being BY 286 parked at space 22 in the Wah Yue Court parking place. That did not of course refer to the car described in the charge and in reference to those particulars the appellant is reported as having admitted that he had gone with the person called Chow Chi-ming to that carpark where he had seen his companion use a screw driver and a spanner to prise the offside door of the driver's seat. He added that his companion was unable to open the door.  He was then cautioned again because he had gone on to say that his companion walled past several vehicles and approached another vehicle to carry out a similar attempt. After that caution which does not contain any detail as to the registration number of the car,. the appellant said: I helped him to look out for anyone coming, that time I had not paid attention to the registration number of the vehicle and Chow Chi-wing prised offside door. Chow Chi-wing took a grey National headphone and radio from that vehicle. After he took it he left, I went back to my home at Goldmine Building to sleep.'

3. It will be evident that the particulars to which that statement was directed do not in the first instance specifically refer to the car laid in the charge, the property of the 1st prosecution witness, but secondly and more importantly the description of the property is distinctly at odds with what is described in the charge. Miss Alexander who has eloquently endeavoured to support the charge, points out that there may well have been a language difficulty and that the colours blue and grey are in any event contiguous colours of the kind that easily shade into each other. That is a pertinent observation but where there is a very clear colour description given, as was given by the complainant in this case, distinguishing that from a very different colour, then the court must necessarily be given pause as to whether the same item is being referred to. I am informed that in any event the police station that night was busy in respect of investigations into this particular kind of offence in that area. The particulars to which the appellant spoke revealed that his companion had made two endeavours to steal from cars in his company. We are not to know whether there were other cars approached in the same way. Although the defendant's statement is confessional in its nature, there remains a doubt as to whether the confession is specifically to the offence with which he was charged. And for that reason it appears to me that the conviction is unsafe. It is therefore quashed and the sentence is set aside.

4. One other point is taken by Mr. Yu who appeared for the appellant and to which I think it is proper to make reference. It is common ground now that the appellant at the date upon which he appeared before the magistrate was under 16 years of age. He was therefore within the description of a juvenile offender. Section 3c of Cap. 226, the Juvenile Offender's Ordinance, provides in sub-section 1 as follows:

"Subject as hereinafter provided, no charge against, the child or young persons shall be heard by a court of summary jurisdiction which is not a juvenile court.'

5. Sub-section 2 then goes on to prescribe certain circumstances under which it will be proper for a court of summary jurisdiction other than a juvenile court to deal with the person as a juvenile. And paragraph C of that sub-section reads as follows:

"Where in the course of any proceedings before any court of summary jurisdiction other than a juvenile court, it appears that the person, to whom the proceedings relate is a child or young person, nothing in this sub-section shall be construed as preventing the court, if it thinks fit so to do, from proceeding with the hearing and determination of those proceedings.'

6. It might well appear that that provision was in any event a sufficient cover for what was done in the present case. Mr. Yu however points to section 19. The point that he makes is that amendment of 1979 which added the words " after considering any available evidence as to his age" in two places in the section, in effect provides that there is a duty upon a magistrate to make an inquiry in any case before him as to the age of any person whom it may reasonably be suspected might be within the description of a juvenile offender. Mr. Yu says that section 3C, sub-section 2, paragraph C does not apply because there is nothing in the record to show that the magistrate made any positive decision in the course of the proceedings to continue with the hearing despite the fact that he was then apprised of the age of the defendant. It may well be argued that the final words of that paragraph were sufficient cover for what was done, inasmuch as it can be said that the proceedings had not been finally determined until the sentence was passed. I do not profess to give a considered ruling in that behalf without further argument, but in any event I think it is proper to say that it is at least advisable for a magistrate in dealing with what I might call a border line case, a case which is palpably a border line case upon the appearance of the defendant before the court, to make such an inquiry.

Representation:

B. Yu (Vincent Lo & Co.) for Appellant.

F. Alexander for Respondent/Crown.