So Sum-chuen v. The Queen
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CACC000731/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 731 OF 1974 -----------------
----------------- Coram: Pickering J. Date of Judgment: 11th November, 1974. ----------------- JUDGMENT ----------------- 1. The appellant was convicted, after a trial, of possession of an offensive weapon, that is, a home-made knife 18 inches in length and was sentenced to be bound over in the sum of $500 for 18 months and to receive nine strokes of the cane. That sentence of corporal punishment has been deferred pending determination of this appeal. He appeals against conviction. 2. The prosecution evidence consisted of that of a single police constable who testified that at 12:25 a.m. on 14th June last he was driving a car containing a sergeant and two other detective constables and that as he was about to turn from Reclamation Street into Argyll Street he had to stop for a red light. At that time he saw a group of about ten persons holding knives, some chasing others; the police party alighted and ran after them up Argyll Street shouting their identity and telling the weapon-holders not to move. The witness says that he gave chase after a man holding a knife and that as he was near Shanghai Street, he heard a pistol shot whereupon the man whom he was chasing hesitated; the witness says that he drew out his revolver and pointed it at the man, telling him not to move at which the man dropped the knife and put up his hands. The witness identified the appellant as that man. 3. The appellant's version of his arrest was that he was eating noodles with a friend at a noodle stall at the corner of Argyll Street and Reclamation Street, there being about ten odd customers at the stall when he saw a group of persons running towards the noodle stall from Reclamation Street, some of the group being armed. At the same time he saw some men get out of a car and come towards the noodle stall and these men were presumably the police officers. The appellant says that he saw persons striking the customers in the noodle stall with knives and some of the customers stood up and ran away towards Shanghai Street; he too ran down Argyll Street towards Shanghai Street and as he approached Shanghai Street he heard a shot fired and somebody shouted "Don't move" whereupon he stopped and turned around. On turning, he saw a man pointing a pistol at another man standing some two feet away from himself and there was a knife on the ground beside this other man. In addition there was a fourth man lying on the roadway, whom he later discovered to have been shot. Both the appellant and the man who had been standing some two feet away from him, were hand-cuffed and taken to Mongkok Police Station where, he says, he was shown four knives one of which the arresting police constable picked up asking the appellant whether it belonged to him - a suggestion which he denied. 4. For the defence it was suggested that the appellant had been accused on the basis of false evidence the police being anxious to make as many arrests as possible in order to justify their action in firing at and wounding a suspect and possibly because the finding of a number of weapons (and a number of weapons were found on the ground in the vicinity) without arresting the owners could have proved embarrassing and possibly attracted criticism from superior officers. 5. In his Reasons for Findings the learned magistrate set out considerably more of the actual processes which led him to convict than he had do in his judgment but some of those findings appear to me to be less forceful in respect of the conviction than the learned magistrate considered them. Thus, for example, the learned magistrate appeared to consider that the fact that the knife was tested for finger prints (no finger prints were found upon it) militated against the appellant in that if he had not genuinely been seen holding the knife no finger print test would have been made since the result would have done nothing to onsure his conviction and might have led to his acquittal. Mr. Carolan, for the Crown, concedes that the absence of finger prints could not have been conclusive one way or the other. It remains the fact, however, that the learned magistrate put this matter into the scales as supporting the prosecution's case whereas it was in fact a strictly neutral factor. Several weapons were found upon the ground in the vicinity and all were tested for finger prints; the decision so to test was not one which was likely to be within the competence of the arresting detective constable and even had he been aware that the appellant had never in fact had hold of the knife, he would no doubt have been powerless to prevent a finger print inspection of that knife together with the other weapons found. 6. Again, the arresting detective constable agreed, in his evidence, that the appellant had denied ownership of the knife; the learned magistrate appeared to consider that this admission tended to lend credibility to the prosecution's case but in fact the admission could not have been withheld. The denial was contained in an entry in the police notebook and the notebook could not have been withheld for the simple reason that the appellant was also charged with another charge of which he was acquitted and with which we are not concerned: but the only evidence in regard to that charge was contained in the notebook and to prosecute the other charge it was essential to produce the notebook which, incidentally, contained the appellant's denial of possession of the knife. There was thus no virtue in the admission by the witness of the denial which was contained in his notebook and which had, willy nilly, to be placed before the court. 7. At the request of the defence there were produced in the court below the transcripts of two other trials arising out of this incident both of which resulted in acquittal. Whether, in the face of objection from the prosecution, those transcripts should have been produced is doubtful but produced they were and as a result of his perusal of those records the learned magistrate observed that they revealed that the arresting detective constable's account differed in some respects from the evidence of his colleagues but went on to say that he did not consider that his evidence had been so discredited that he should rule that there was no case to answer. There is here, as Mr. Winter, for the appellant argued, an implication that the learned magistrate was of the view that the discrepancies referred to did to some extent discredit the evidence of the arresting detective constable but we are left without any indication of just what the discropancies were or just how far the evidence of the sole prosecution witness had been discredited. 8. As a further result of his perusal of these two other court records, the learned magistrate became aware that the accused in each of these cases had claimed to be eating at the cooked food stall just as this appellant claimed. Each of the accused in the other two cases was acquitted which may suggest that their account of being engaged in peacefully cating a meal at the cooked food stall at the time, was accepted by the court. The learned magistrate, however, said in his Reasons for Verdict "It seems just a little more than coincidental that of the three defendants who have been charged in this incident they should all allege that they were customers at the cooked food stall". The logic of this observation escapes me; if that explanation was accepted in regard to two of three accused it is not beyond the bounds of distinct possibility that it was true in respect of the third. 9. The learned magistrate further made the point that there was in his view no good reason why the police should stop a person not involved unless they had lost sight of the suspect whom they were chasing or had given up the chase and added that the likelihood of either of these possibilities occurring was lessened by virtue of the fact that the constables were armed and therefore had an advantage over those being chased. Having failed to understand this point and being apprehensive that I was being unduly imperceptive, my apprehension was ...(illegible) that allayed when Mr. Carolan, for the Crown, informed me that he too could not understand this point. 10. The matters which I have mentioned probably have little individual force but, containing as they do, a non sequitur here, an illogicality there, they are collectively sufficient to leave me with that sense of insecurity which prompts me to say that the conviction is unsafe and that it was not proved beyond reasonable doubt that this 22-year-old man who has never been in trouble with the law previously and who has been in steady employment over the years and is now employed in a skilled trade at $1,000 a month, was in fact a member of a gang in possession of weapons and intent upon mayhem. 11. The appeal is allowed, the conviction quashed and the sentence set aside. Representation: M.F. Winter of Gordon Hampton & Winter for appellant. T.J.R. Carolan, C.C., for respondent. |