Tso Kwok Ming v. The Queen
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CACC000793/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 793 OF 1974 -----------------
----------------- Coram: Huggins, McMullin & Pickering, JJ. Date of Judgment: 3rd January 1975. ----------------- JUDGMENT ----------------- Huggins, J.: 1. The Appellant was convicted before the District Court of robbery and sentenced to 18 months' imprisonment. He appeals against his conviction and the sole ground of appeal, as now before us, is that the conviction cannot be supported having regard in particular to the facts that the property alleged to have been stolen from the victim was not found on the Appellant, was not found at all and that there was no real opportunity for the Appellant to have disposed of it. 2. The evidence for the Crown was that in the early hours of the morning the victim, who was a taxi-driver, was on his way past Block 19 of the Wang Tau Hom Estate when a man suddenly rushed out from that block and attacked him. The man was holding a chopper, threatened him and searched him with some thoroughness, taking away three sums of money, first of all a sum of $30 to $40, then a bag of coins which were $20 to $30 (part of the proceeds of his business as a taxi-driver) and then a further sum of $70 to $80. He also took the victim's wrist-watch. The search took some time and while it was going on some police arrived on the scene. The victim shouted and the robber ran away. The police gave chase. There were two policemen and their evidence was that one of them stopped and talked to the victim and asked him some questions and that the other continued the chase. His evidence was that at no material time was he more than about 20 feet behind the robber, that he did lose sight of him but eventually caught up and arrested the Appellant. The Appellant was taken downstairs and was then identified by the victim as the robber. The constable who stopped the victim asked him at the bottom of the stairs to describe the robber and he gave a brief description of his build and mentioned that he had a fountain pen with a gold clip. The police made a search of the area after the arrest of the Appellant. They found none of the money but they did find a chopper, a pen and one sandal. Their evidence was that the Appellant had a matching sandal either on his feet or in his hand. I shall come back to that in a moment. 3. The defence was that the Appellant had been visiting a friend in Block 17 and was on his way home: he was a police constable himself, a man of good character: that he heard the cry of robbery and was himself trying to catch the robber. He denied that the sandal was found on him and he said that he was wearing shoes throughout. The friend with whom he said he had been playing chess also gave evidence that the Appellant was wearing shoes. The Appellant was asked whether there was any reason why two brother police officers should try to frame him, and he said that there might be some reason relating to a Chi Fa stall in the vicinity, which apparently, he had reported and in which these other officers, he said, might have some kind of interest or concern. 4. That was the evidence. The difficulty is the one which counsel has rightly picked upon, that not one cent of this money was found and that the Appellant, if he was the robber, really had no opportunity (or so it would appear) to dispose of this money. The $20 to $30 which had been in the bag, the victim said, had been emptied into the Appellant's pocket. It would be difficult enough while running away for the Appellant to get that money out of his pocket, let alone to get it all out and to dispose of it noiselessly. At least one must say that one would have expected some evidence to suggest some method by which he could have disposed of this property in this way. 5. The damning evidence against the Appellant was, if it was true, the evidence of the sandal. As to that the police were not entirely agreed. At one point, at the end of the cross-examination of Constable Choi Hon-man, he was asked:
His answer was
In re-examination he was further questioned about this and he said
There was clearly a conflict there as to whether it was on his foot or in his hand but he made it quite clear in re-examination that it was in his hand because he said the man did not have anything on his feet at all. Another part of the evidence was that at the time the Appellant was taken to the police station he had one sandal on his foot. 6. There is not much that can be said in a case of this kind and we say no more than that having considered this matter very carefully indeed we are left with a lurking doubt whether this man has been rightly convicted, and for that reason the appeal is allowed, the conviction quashed and the sentence set aside. 3rd January 1975. Representation: |