The Queen v. Wong Tak-lam
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CACC000685/1983 IN THE COURT OF APPEAL
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date:18th November 1983 ______________ J U D G M E N T ______________ Silke, J.A.: 1. On the 24th December 1980 robbers carried out a raid at about 2:00 a.m. on a gambling establishment maintained in the cockloft of the Wah Pong Garage at No. 7, Shek Ying Path, Kwai Chung. 2. The robbers were armed with beef knives and two of them wore stocking masks. Included amongst the gamblers was a police constable - P.W.1 Cheng Kwok Choi - who had his gun with him. Also present, he had indeed upon returning to the premises after a short absence been threatened outside the premises by some of the gang and been forced to lead them to the gambling, was P.W.2 Yeung Kin Man. 3. The upshot of all this was that P.C. Cheng, having declared himself to be a policeman, fired his gun, fired it a second time accidentally and then fired for a third time. The robbers rushed out of the cockloft chased by P.C. Cheng who was followed by Mr. Yeung. Others followed but were deflected from the chase when the owner of the garage was found lying injured outside the premises. He had jumped down from the cockloft. 4. P.C. Cheng saw people run towards Tai Loong Street from a car park which was outside the garage and he also saw a red Honda Accord being driven off from that car park. 5. The two men ran to Wo Yee Hop Road which is also near the car park. They stood outside the Kwai Chung Billiard Room. After a few moments P.C. Cheng saw a red Honda Accord, which looked like the one he first saw, go from Wo Yee Hop Road into Tai Loong Street. He thought it had four people in it. The car went slowly past and the people in it looked at both men. 6. The car went onto Shek Lei Pui from Tai Loong Street. A fear moments later P.C. Cheng saw a red Honda Accord come back from Shek Lei Pui to Tai Loong Street and stop on the opposite side of the road. There were two people in it. The driver asked what the two men were doing there and he identified himself as a member of CID from Wong Tai Sin Headquarters - which he was. P.C. Cheng also identified himself as a member of the force. This all took place about 50 yards from the Wah Pong Garage. 7. The driver - the applicant before us - was told of the robbery. He said "It is alright " and he drove the car to the car park where both he and his passenger got out and walked to the garage where the applicant knocked on the gate with his pistol. 8. It is to be noted that P.C. Cheng was not asked what was meant by "I told him of the robbery" and, in particular, whether or not he had made mention of the garage as being the place where it happened. 9. P.C. Cheng questioned the applicant again as to his identity and at that point Mr. Yeung said he knew the applicant. All three went to Mr. Yeung's shop opposite the garage. 10. A little later, and before P.C. Cheng made a 999 call, the applicant left driving away with his passenger in the red Honda Accord the number of which P.C. Cheng then took down. Then a report was made. 11. Mr. Yeung differs as to some of the details given by P.C. Cheng. He says that on its first passing the red car containing four people it stopped and the driver spoke to himself and P.C. Cheng. He was told of the robbery and then the car drove on to Shek Lei Pui, shortly afterwards it came back then containing but two people. It was driven to the car park. The driver got out, went up to the garage and knocked on the door. The driver on being questioned by P.C. Cheng and Mr. Yeung said he was a police officer. They went to Mr. Yeung's shop and then the applicant left with his passenger who had been with the party throughout. 12. Mr. Yeung agreed that at an earlier trial he had said that the red car appeared to be an Escort. 13. I would interpolate here that we are of necessity aware, as was the trial judge, that this was a retrial. Nothing turns on this but it does serve to explain the long delay as between the date of the incident and the hearing of this Appeal and further the foreshortened nature of the trial itself. For there were but two oral witnesses and ten separate agreed facts placed before the trial judge. The applicant neither gave evidence nor called witnesses. 14. Those agreed facts, shortly, provided evidence that: the car driven by the applicant was stopped at a road block at about 4:00 a.m. that morning and that he still had his passenger with him; that on the 24th December at about 10:30 a.m. the applicant voluntarily made a statement; that on the 29th December at about 10:00 p.m. the applicant made a second statement; that on the 27th December 1980 while the car was in police custody it was examined by a scientific evidence officer and that an empty stocking packet was found in it. This packet was not produced as an exhibit and we have not seen it. 15. Further, in his first statement the applicant had stated that he had informed an Inspector Law King Fu, who was the Inspector in charge of the Action Squad - the applicant was a member of the D team of the Squad - at Wong Tai Sin Police Station, of certain matters. It was agreed at trial that:
16. The statement of the 24th December and that of the 29th December were long and detailed - the latter being of much greater length than the former. They conflicted. The effect of them was, at the very least, to cast grave suspicion upon the applicant, a serving police officer, of complicity in the robbery which had taken place at the Wah Pong Garage. 17. In his Reasons for Verdict the trial judge had this to say:
18. Mr. Huggins, who appears for the applicant in this Court, has sought in a subtle argument presented with his usual tenacity, to destroy these "single items" so that in the end there s not sufficient left to ground a conviction. 19. He specifically attacks three factual findings of the trial judge: first: that passage where the Judge said:" I find it significant that the accused went to the garage for P.W.1 had not told him where the robbery had taken place." second: that. passage where the Judge made reference to the agreed evidence that the applicant did not inform Inspector Law that he was investigating a group of people who intended to commit robberies with firearms or imitation firearms; third: the Judge, having made reference to the wearing of stocking masks by some of the robbers, recited the passage in the agreed evidence which stated that the empty stocking packet had been found in the car on the 27th December. 20. It is of course Mr. Huggin's general contention that the inferences drawn by the Judge "from all the evidence" - and that must include the two statements - were not, as the Judge thought, inference's solely of guilt but were susceptible to other inferences being drawn. 21. The first point may have some substance for neither P.C. Cheng nor Mr. Yeung gave full details of the conversation with the applicant which preceded his advance upon the garage and neither was questioned on this point. He prays in aid that which the applicant said in his 24th December statement-a statement, as was the one of the 29th December before the Court for all purposes - to the effect that he saw lights and heard noises coming from the garage before he went to it. 22. It could be that the Judge went somewhat too far in those circumstances when he found the advance upon the garage "of significance" in the sense that it implied a knowledge in the applicant of the place where the robbery took place which could, only be explained by his participation in that robbery. 23. Of his second point he submits that while it was agreed that the applicant did not tell Inspector Law that particular piece of agreed evidence did not go so far as to agree that he did not tell anyone else. It had relevance to that which was said in the applicant's second statement - but not in the first. This was shown to be a lie. If it were the applicant's case that he had told others of his team, or of the Squad, he certainly made no attempt to say so in either statement nor did he say so in Courts. We do not think this attack to have been successful. 24. On his third point he submits that the car was searched at the road block in the early hours of the 24th December and the packet was not then found. There was no evidence as to what happened to the car between that time and the 27th December when the packet was found. With this we agree. But it was found, stocking masks were worn by the robbers, an explanation was called for. It was not given. In our view the Judge was entitled to take this evidence into his considerations when evaluating the circumstances overall. 25. All this having been said it was clear, and proper, that the Judge placed great reliance upon the contents of the two statements in coming to his conclusion. They were, as we have said, both documents of considerable length. They go into great detail as to the events of that evening. The second, which was made under caution, sets up the defence to which no reference was made in the first, that the applicant was acting in the execution of his duty. 26. Mr. Huggins seeks to explain those statements, which he accepts, as we have said, did arouse high suspicion, as coming from the panic which set in in this serving police officer when he found himself embroiled in that which was clearly a criminal offence. We think they went much futher than that. The trial judge found:
27. We think, bearing all the circumstances in mind that the Judge, in his careful and detailed reasons, brought himself to the right conclusion. We are not prepared to interfere. 28. The application is refused. Representation: A.. Huggins,Esq. instructed by Messrs. David Tsang & Co. for Applicant. E.C. Harris, Esq. for Crown/Respondent. |