Chan Chun Wa v. The Queen
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CACC000802/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 802 OF 1969 -----------------
----------------- Coram: Mills-Owens & Huggins, JJ. Date of Judgment: 18 May 1970 ----------------- JUDGMENT ----------------- Huggins, J: 1. The appellant was charged on two charges of robbery with aggravation and was convicted after a trial in the District Court. The victims in the two robberies were unable to identify any of the several men who attacked them but they were able to identify two watches, one of which was stolen in the course of each robbery. These watches were recovered by the police from a pawn shop when the appellant took them there after his arrest. 2. The only evidence to connect the appellant directly with the robberies was a number of statements made by him to the police. There were four statements recorded in writing and signed by the appellant, including one made outside the pawn shop. The learned judge was not satisfied that these statements were made voluntarily and declined to admit them in evidence. However, before the written statements were tendered a police constable had given evidence of an oral statement alleged to have been made outside the pawn shop, a statement was not alleged to have been recorded. It was, nevertheless, in identical terms to the one which was recorded and which was ruled inadmissible. Moreover, even after the ruling on the recorded statements the learned judge allowed the Crown to lead evidence that the appellant had "said he would take (the police) to the pawn shop where he had pawned the 2 stolen watches", which, again, was precisely what the appellant said in one of the recorded statements. We are of opinion that for the learned judge to admit these two pieces of evidence was inconsistent with his decision not to admit the recorded statements: if he was not satisfied that the recorded statements were made voluntarily it is impossible to see how he could have been satisfied that the other statements (assuming that they were indeed different statements, although in identical terms) were made voluntarily. It is immaterial that no formal objection was taken (Stirland v. Director of Public Prosecutions(1)), although the absence of such objection might well have led the learned judge to assume, prior to objection to the recorded statements, that no issue was being raised. However, once he had ruled that the recorded statements were inadmissible we think he should have indicated that he would disregard the evidence already given of an admission by the appellant and further that he should certainly not have allowed that evidence to be repeated by another witness even though, once again, counsel did not object. 3. Had matters stopped there we would have allowed this appeal for there would have been no admissible evidence that the appellant was ever in recent possession of the stolen watches: it was not enough to prove that he knew about the pawning for he could have known without his being himself in possession of the property pawned. However, misled into thinking that there was admissible evidence of an admission by the appellant that he himself had pawned the watches within a few hours of the robbery, counsel then appearing for the appellant cross-examined a witness about the alleged conversation and elicited an answer to the effect that the appellant had not said he pawned the watches "yesterday" i.e. on the day before the conversation with the police outside the pawn shop, but that he had said he did so "on the 11th". The result is that evidence which showed the appellant to have been himself in possession of the property was brought out not by the prosecution but by the defence and cannot now be objected to. 4. The main argument addressed to us was that even if there was evidence of recent possession it did not raise an irresistible inference that the appellant was guilty of robbery with aggravation. As I understand it the submission was that the evidence was equally consistent with the appellant's having received the watches knowing them to have been stolen and that although on a charge of robbery with aggravation it was open to the judge to convict of receiving (see the Schedule to the Larceny Ordinance) the judge never considered such a verdict. We do not know whether the learned judge did consider such a verdict but, if he did, we are satisfied he was right to reject it. Cases were cited to us which show that circumstantial evidence is insufficient unless it can fairly admit of no other inference than that which is necessary to prove the case put forward. This, however, overlooks the fact that the doctrine of recent possession is based upon the transfer of the evidential burden so that, added to the circumstances that the accused is in possession of stolen property shortly after it has been stolen, one has the absence of any satisfactory explanation of that possession. There was nothing in the evidence here to suggest that the appellant had received the watches from somebody else although there must, of course, remain a possibility that he did so. Where the evidence is as consistent with larceny as with receiving the proper course is to charge both offences, but unless there is something which leads the jury to think that the accused is more likely to have received the stolen goods from another than to have stolen them himself the verdict should be Guilty of larceny (Reg. v. Seymour(2)) and, indeed, only the charge of larceny should be left to them: R. v. Christ(3). In the present case we have no doubt that the proper charge was robbery and not receiving. 5. The charge was robbery with aggravation, the aggravation being the commission of the offence by two or more, although on the first charge the use of a weapon was also alleged. In our view it was open to the judge to convict of the aggravated robbery because there was no possibility, as there was in Reg. v. Fallon(4) where the charge was robbery with violence, that he was not party to the aggravation: the presence of several robbers was clearly proved and the appellant must have been aware he was not alone. 6. For these reasons the application is dismissed. 18th May 1970. Representation: O.V. Cheung, Q.C. & Sakhrani for Appellant M.J. Stapp, C.C. for Respondent (1) 1944 A.C. 315, 327. (2) (1954) 38 Cr. App. R. 68. (3) (1951) 35 Cr. App. R. 76. (4) (1963) 47 Cr. App. R. 160. |