Mak Kwong Sung v. The Queen
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CACC000784/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 784 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 1st December, 1972. ----------------- JUDGMENT ----------------- 1. The Appellant was charged together with another man on two counts of robbery. The other man pleaded Guilty to both charges and he subsequently gave evidence upon the trial of the Appellant. 2. The first robbery took place at about 2:00 p.m. on 31st August. A woman was going up the staircase of her home in Gillies Avenue when she was attacked by two men. Someone covered her mouth with his hand and a ring was removed from her finger. It was a gold ring. The woman was short-sighted and was unable to identify either of the robbers. 3. On 2nd September at 6:30 p.m. another woman was going up the staircase of her house in Chatham Road. Two persons attacked her, one grabbing her neck and the other covering her mouth. They stole a gold necklace, some finger-rings and a purse containing some money. She described a ring as being a diamond finger-ring and it is not entirely clear whether there was in fact more than one ring. This woman, again, was unable to identify either of her attackers. 4. The Appellant was arrested on the evening of 3rd September. He was seen by two police officers paying particular attention to women who were holding things in their hands in the street. They followed for some distance and then approached and searched him. They found nothing suspicious on him. However, one of the officers thought that the Appellant fitted the description of a person wanted in a case of robbery in the Hung Hom District. That, of course, was neither of the two robberies charged in this case and, as I have said, the two robbers in this case had not been identified. The evidence does not disclose what happened at the Police Station, but it does appear that on the following day the Appellant, a detective sergeant and a detective police constable together with the other accused went to the Wing Hei Goldsmith Company on Hong Kong Island. The Appellant pointed out a house and, under caution, is recorded as having said:
The man in the shop there and then identified the Appellant as the person who sold a necklace and a ring to him. That assistant gave evidence in the trial. He said that on 31st August the Appellant sold a gold-ring for $36 and on 2nd September at 7:30 p.m. came in again and sold a gold necklace for $220. The necklace was identified by one of the victims as having been taken from her. The gold finger-ring had already been melted down and there was no attempt to identify this ring as the one taken from the other victim. 5. The Appellant did not deny having sold the ring and the necklace but he denied that he took part in either of the robberies and called the other Accused to confirm that it was another man who committed the robberies. The Appellant's story was that the other Accused handed him the goods and asked him to sell them, saying on each occasion that they belonged to his younger sister, and that the other Accused, being of about 22 years of age, was apparently afraid that because of his youth the shop might not accept the goods from him. That was the evidence and that is the story which has been repeated to me in this Court, although here the Appellant has added something to the effect that, after they were taken to the police station, the other Accused was taken out by the police to look for the third party who was alleged by him to be the second robber, and that when the police failed to find this person they advised the other Accused to say that it was this Appellant who went to commit the robbery and not to mention that they had been out to search for the third party. 6. The learned magistrate disbelieved the story of the Appellant and the other Accused, and it should be mentioned that the other Accused had in fact made a previous statement inconsistent with his evidence to the effect that the Appellant was the second robber. That previous statement was, of course, not evidence in the case but it was material as indicating that the other witness was not a man of truth. 7. What has caused me anxiety in this case is the conviction on the charge of robbing the woman on 31st August of a finger-ring, and counsel for the Crown concedes that there is really insufficient evidence to connect this Accused with that robbery. Undoubtedly there is the gravest suspicion that he was involved but he was not identified at the scene of the crime and, unless the property could be identified in his possession, then there was nothing at all to connect him with it. The learned magistrate seems to have been satisfied that the ring which the Appellant sold to the goldsmith shop was in fact the one taken from the victim. With respect I do not think that the evidence was sufficient to establish that beyond reasonable doubt and therefore I allow the appeal on the second charge and quash the conviction. 8. However, there was ample evidence to justify the conviction on the first charge. The learned magistrate rightly says that the Appellant was found in recent possession of property identified as having been stolen and that was evidence upon which he could convict of robbery. It is unfortunate that he said:
I think the learned magistrate meant to say "very recently stolen", but it did not necessarily follow that because he could not accept the Appellant's story that he had to accept the prosecution's story. However, reading his judgment as a whole, I am satisfied that the learned magistrate applied the correct test and this appeal must be dismissed as regards the first charge. The sentence on the second charge must, of course, be set aside. 1st December, 1972. Representation: |