Poon Kwok Yui v. The Queen
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CACC000748/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 748 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 14th December, 1972. ----------------- JUDGMENT ----------------- 1. This is a deceptively straightforward case. The Appellant appeals against a conviction for burglary. There appears in the notes of proceedings an "alternative" charge which was typed on a separate sheet and dated "22.8.1972". That was the day preceding that on which the charge of burglary was laid, but this sheet appears in the record after the formal Charge Sheet. There is no indication that a plea was ever taken on this alternative charge or that any reference was made to it in the course of the trial. The Appellant tells me that in fact he was not called upon to plead to it. How it comes to be included in the record therefore remains a mystery, as does the reason why the Appellant should have been affirmed before the charge was read and explained on 23rd August, as the certified copy of the record shows him to have been. 2. Evidence was given by the occupier of a ground floor flat in Boundary Street that at about 00.30 on 19th August he checked the front door of his premises and that his wife "went off to check too". He continued:
The following evening he discovered that some property, including a Rolex watch, was missing and he identified a watch which was produced in court as being "similar to mine". He said he had a record of the number of his watch but could not remember it and no one appears to have taken the trouble to ensure that he brought with him whatever records he had which would have enabled him to refresh his memory. The "similar" watch had been recovered from a pawn shop, where it had been pawned on 19th August by the Appellant. A worker in a mahjong house gave evidence that he had bought a pawn ticket relating to this watch from the Appellant on 19th August for $5 and that when he went to redeem the watch on 22nd August he was interrogated by the police. There was then a cautioned statement, said to have been made by the Appellant, in which he confessed to the alleged burglary. 3. The Appellant's case was that he was in the mahjong house and that the worker had asked him to pawn the watch. In his evidence he gave no reason for such a request, but before me he has said that the worker could not leave the mahjong house because his employer was present. The Appellant denied all knowledge of the premises at which the burglary was said to have taken place and after he had once closed his case he obtained leave to call a witness to testify that he could not have been at the scene of the crime at the material time. In the event the witness did not support the alibi. 4. The ground of appeal is that there was no evidence or no sufficient evidence whereon to found the conviction. Clearly the confession was sufficient evidence if it was true. It is, however, important to appreciate that it was the only evidence. The other evidence suffered from this defect: there was nothing, apart from the confession, to identify the watch which was shown to have been in the possession of the Appellant with that which was missing from the flat. Apart from that, the evidence of the owner of the property as recorded by the learned magistrate is hardly convincing, because one is left to guess that a person who could gain access to "the washing aperture" would also have access to whatever part of the house it was in which the missing property was kept and to assume that there was not some entirely different explanation for the property's being missing. 5. As I have said, the confession alone was sufficient evidence upon which to found a conviction, but it does not appear from his Statement of Findings that the learned magistrate appreciated that it was the only evidence available to support a conviction. It is true that he must have disbelieved the Appellant's allegation that he had been induced to make the confession statement and true that he said the Appellant "gave a very poor performance in the witness-box", and there is no reason to believe that the learned magistrate would have been any the less satisfied as to the truth of the confession if it had been the only evidence adduced. However, he might have had a doubt and in this connexion there is one other matter which must be mentioned. A reading of the confession itself does not give the immediate impression that it was a spontaneous reply to the charge. The last sentence in particular arouses suspicion that the Appellant was at least prompted as to what he should say. 6. Had the learned magistrate expressly alluded to all these matters I might have been able to say that the conviction was sufficiently supported by the evidence. As it is, I find myself compelled to say that I think the conviction unsafe. The story which the Appellant told was by no means inherently improbable and that of the witness who supplied the only contrary evidence was such as to raise grave doubt as to that witness's own honesty. The appeal is allowed, the conviction quashed and the sentence remitted. 14th December, 1972. Representation: |