Hau Man-wan v. The Queen
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CACC000077/1977
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----------------- Coram: Briggs, C.J. Huggins and Pickering, JJ.A. Date of Judgment: 6th May 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The Appellant was one of three men charged with robbery. He formally admitted that a robbery had taken place and it was common ground that only two men went into the premises at that time. The evidence against him related principally to the finding in his possession of some of the stolen property and a pawn ticket in respect of other stolen property. 2. At the close of the prosecution case the solicitor for the Appellant submitted that there was no case to answer and counsel for the Crown very fairly conceded that without a confession statement, of which evidence had been adduced but which had been excluded by the judge, there was insufficient evidence to support the charge of robbery. In spite of that the learned judge found that there was a case to answer. He recorded no reason for that ruling but we incline to the view that it was right. That is not because there was any evidence to support a verdict that the Appellant was guilty of robbery - even if he was present at the scene there was nothing to show that he had agreed to the use of violence or threats of violence - but because there was evidence to support a conviction for theft, a verdict of Not guilty of robbery but guilty of theft being an alternative allowed by the statute, as was one of Not guilty of robbery but guilty of handling stolen goods. It was not necessary to amend the charge and no other order was required at that stage, but it would have been better had the learned judge made it clear that it was only on the basis of simple theft or handling that the Appellant was called upon for his defence. His failure to do so (or, if such be the case, his failure to record that he had done so) was not fatal. Where alternative verdicts are open that is a factor which will no doubt influence the advice given by a defendant's counsel in relation to his client's giving evidence or standing upon a submission. 3. It has not been disputed that in all the circumstances the possession of which there was evidence here was sufficiently "recent" to found a conviction for one of the alternative offences and it follows that the question whether an appellate court should, when considering whether there was a case to answer, have regard to the defence evidence does not arise in the present case. If the learned judge had appreciated that the proper verdict could not be Guilty (of robbery) he would still undoubtedly have found the Appellant guilty of theft rather than of handling. To support that conclusion we think it was necessary for him to find that the Appellant had lied in putting forward an alibi and that he lied because he knew he was present at the time of the stealing. The judge did so find and we cannot say he was not entitled so to find. 4. That brings us to the other contention on behalf of the Appellant, namely that the reasons given by the learned judge for disbelieving the alibi were insufficient. The judge found discrepancies between the evidence of the Appellant and his witness as to the subject matter of discussion at a meeting between them on the night before the robbery, but those discrepancies appear to us more apparent than real. Again, the judge regarded as specious the reasons both gave for being able to pinpoint the dates upon which this meeting was (a) decided upon and (b) held. Those reasons do not seem to us inherently improbable. We cannot, of course, say that the alibi should have been believed, but we think that in the light of the fact that only two men were seen on the occasion of the robbery and the fact that there is no evidence that the Appellant was in possession until ten days, or nearly ten days, afterwards raised a strong likelihood that he was, if anything, a receiver rather than a thief. More than that, we think that the learned judge's approach to the alibi may equally have coloured his approach to the Appellant's explanations for his possession of the two items of stolen goods which he admits were in his possession at one time or another. It seems to us not surprising that the Appellant should remember specifically the reason for borrowing a camera from the 1st Defendant and that the 1st Defendant should merely recall the fact that he had lent it. The 1st Defendant was disbelieved partly because he had made a previous inconsistent statement in which he implicated this Appellant, but it is fairly pointed out that when he made that statement the 1st Defendant had been led by the police to believe that the Appellant had informed on him and his statement may possibly have been a retaliatory attack made without any foundation. Much has been made of the evidence that, when first approached by the police about the robbery, the Appellant remarked: "Oh, that case", but we regard such a remark as equivocal. Moreover, evidence of it was given only by a witness whose evidence on the voir dire was not considered by the judge to be satisfactory. 5. It is enough that we are left with a doubt whether the verdict against the Appellant was safe. We allow the appeal and quash the conviction. 6th May 1977. Representation: |