Yeung Kam-chun v. The Queen

CACC000882/1981

Robbery of taxi driver by four passengers - taking conveyance without authority - taxi driver not getting clear view of Appellant during commission of offences - Appellant seen shortly after offences driving taxi with 3 passengers - Appellant surrounded by taxi drivers - identification of Appellant by taxi driver in presence of fellow taxi drivers - whether Appellant's silence amounted to acceptance of accusation - second identification by taxi driver in presence of police - whether Appellant's silence amounted to acceptance of accusation - conviction based, inter alia, on Appellant's silence in face of second accusation - presence of other factors connecting Appellant to robbery - lack of reasonable explanation for possession of taxi very shortly after offences - application of proviso

BETWEEN

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Coram: Li, Silke, JJ.A. & Hooper, J.

Date: 30 June 1982

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JUDGMENT

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1. This was an appeal, by leave of the single judge, against convictions for robbery and the taking of a conveyance without authority. We dismissed the appeal and indicated that we would give our reasons later.

2. The facts of the case were set out in the judgment of the trial judge (as reduced into writing) in the following terms :

"A taxi driver, Mr. YAU Keng-ping (P.W.1) picked up 4 young men in the vicinity of Yuen Long. They told him to drive them to a place close to the Castle Peak Boy's Home.

Before reaching the destination Mr. Yau was seized by one of his passengers seated at the back. At the same time the passenger next to him whom he identified as being the 1st Defendant" (the Appellant in this case) "pointed a knife at him. Mr. Yau was then taken out of the taxi, led to quiet road leading to the Castle Peak Monastery and there tied up and gagged. Yau then related how the 2nd Defendant had taken money from his pocket and returned to him some $10 for his bus fare. He said that he had had a very clear impression of the 2nd Defendant whom he saw face to face and was in no doubt whatever but he had correctly identified him.

After some five minutes Mr. Yau managed to free himself. His taxi had been driven away. He hailed a passing taxi, boarded it and the driver (P.W.2) at once sent a message by radio to the effect that his colleague had been robbed and his taxi taken. Within a very short space of time Mr. Yau noticed his missing taxi. It was being driven up to a restaurant in Tuen Mun. He noticed a passenger leave it. Mr. Yau's colleague then followed the taxi towards Tuen Mun Market.

At the market they saw the taxi again. It was stationary and Mr. Yau managed to see two other passengers running from the taxi. He at once approached and found the 1st Defendant surrounded by a  group of taxi drivers who had no doubt been alerted by the radio message. He pointed out the 1st Defendant and accused him of taking his taxi whereupon he alleged that the let Defendant had said that his passengers had left without paying their fare. At this stage Mr. Yau and other witnesses noticed the 1st Defendant removing tape from his finger tips. They stopped him and summoned the Police.

In due course P.C. Yuen (P.W.10) arrived at the scene and at once Mr. Yau pointed out the let Defendant to him and complained that he had just robbed him. The let Defendant remained silent. The officer recovered the strips of adhesive tape, which the 1st Defendant had been endeavouring to remove from his fingers. He arrested the 1st Defendant".

3. Later in his judgment the learned judge said :

"Mr. Yau's identification of the 1st Defendant must be regarded with the utmost caution. He was identified at a time when he was surrounded by a large number of taxi drivers and it has been suggested that Yau could have been influenced by the surrounding circumstances and perhaps jumped to the conclusion that this was the man who had earlier taken part in the robbery.

The Crown's case against the 1st Defendant does not depend solely on his being identified by Yau.

He was found driving the stolen taxi only minutes after the robbery, his finger tips were covered in tape, the weapon was found in the taxi. When confronted by Yau he remained silent. This was perhaps understandable because he was at the time surrounded by hostile taxi drivers. However, later when the Police arrived there could be no question of intimidation. He was again accused in the presence of the officer and again he remained silent.

From all the circumstances the only influence (sic) which could be drawn was that the 1st Defendant had taken part in that robbery. It would be absurd and entirely unbelievable to infer that he had been a casual passer by, seen an empty taxi and driven it away."

4. Mr. Mackenzie-Ross criticized the two references to the Appellant's remaining silent and further submitted that, by the use of the phrase "From all the circumstances" in the passages just quoted, the trial judge was using that silence as an indicator of guilt.

5. He cited in support of his argument Hall v. Reginam⁽¹⁾ in which Lord Diplock, giving the opinion of the Board, said at p.324:

"It is a clear and widely known principle of the common law in Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence. It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or a disclaimer but in their Lordship's view silence alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation."

6. Hall⁽¹⁾ has come under scrutiny in subsequent cases. In Chandler ⁽²⁾ the English Court of Appeal declined to apply it where questions were asked of the defendant and the defendant and his interrogator were on equal terms at the time questions were asked. In Parkes⁽³⁾ Lord Diplock himself distinguished it. There there was a "silence" in the non reply of the appellant to a question put, as to why he had stabbed a girl, by the mother of the girl but this silence was accompanied by conduct the conduct being an attempt to stab the mother when she threatened to hold the appellant until the police arrived.

7. In Parkes⁽³⁾ Lord Diplock said, at P.383, of the passage we have quoted from Hall⁽¹⁾  :

"As appears from the passage itself it was concerned with a case where the person by whom the accusation was communicated to the accused was a police constable whom he knew was engaged in investigating a drug offence. There was no evidence of the accused's demeanour or conduct when the accusation was made other than the mere fact that he failed to reply to the constable. The passage cited had been preceded by a quotation from a speech of Lord Atkinson in R. v. Christie ([1914] A.C. 545 at 554) in which it was said that when a statement is made in the presence of an accused person

'He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct or demeanour at the time when the statement was made amount to an acceptance of it on the whole or in part.

8. Lord Diplock went on to approve the direction of Cave, J., in R. v. Mitchell⁽⁴⁾ with particular emphasis on the words "Undoubtedly when persons are speaking on even terms" which occurs in the passage from Mitchell ⁽⁴⁾ which reads :-

"Undoubtedly when persons are speaking on even terms, and a charge is made and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true."

9. Here the trial judge found that the first "silence" occurred in circumstances where there was a possibility of intimidation and therefore the appellant was not, if we understand the trial judge correctly, on even terms with his interrogator. The second "silence" occurred when the appellant was clearly not on even terms with his accuser whether or not the earlier intimidation had been removed.

10. There was no evidence that either "silence" was accompanied by any additional action, conduct or demeanour on the part of the appellant.

11. If the trial judge by the use of the phrase "From all the circumstances" immediately succeeding his references to the "silences" was relying on either of those silences as an indicator of the appellant's acceptance of the accusations he was wrong so to do.

12. But here, unlike Hall⁽¹⁾ , there was other evidence upon which the trial judge was entitled to hold that the charges against the appellant had been made out.

13. There was no dispute that the Appellant was seen driving the taxi and the evidence was that it was a very short time after the offence under section 14(1) of the Theft Ordinance and the robbery had been committed.

14. The time gap was in the words of the judge a matter of "minutes". The facts found by the judge indicate that the incident commenced when the victim was seized by one of the 4 passengers in his taxi and who was in the rear. At the same time the passenger sitting next to him in the front passenger seat pointed a knife at him. The victim was then taken from his taxi, led to a quiet road leading to Castle Peak Monastery and there tied and gagged and the money taken from his pocket.

15. A short time later - about 5 minutes - he had been picked up by the 4th prosecution witness, another N.T. taxi driver who happened to be passing at the time, and almost immediately after that he had seen the "stolen" taxi being driven up to a restaurant in Tuen Mun. He noticed one passenger leave it. The victim then followed the taxi to Tuen Mun Market where he saw 2 other passengers running away. The driver remained, and he was the Appellant, and he was surrounded by other N.T. taxi drivers.

16. The police were called, and at one stage, the Appellant was seen attempting to remove tape from his fingers. A search of the car revealed the weapon, Exh. P.1, which was recovered as was a bag found on the floor at the back of the car containing an axe and a chopper.

17. So on the facts found there were 4 men involved in the incident when the offences were committed. We thought Mr. Mackenzie-Ross' attempt to separate the robbery from the offence relating to the car was unrealistic in the circumstances. 4 persons were involved. A short time later one passenger was seen to leave the car. A short time after that 2 further passengers were seen to leave the car and run away leaving the Appellant as the driver of the car. So 4 persons took part in the incident when the offences were committed and 4 persons were subsequently seen connected with the car, the last one who was caught icing the driver who is the Appellant.

18. After that the Appellant had attempted to remove tape from his fingers and the weapons were found in the car.

19. The Appellant was clearly found in possession of the vehicle a short time after the offences had bean committed and at no time gave any reasonable explanation for that possession.

20. In our view the only reasonable inference that could be drawn from all these facts is that the Appellant was guilty of both offences.

21. Although the learned judge aid not comment on the evidence referred to by Mr. Mackenzie-Ross of the Appellant's remark that "the other passengers had Gone having not paid the fare", his findings were clearly supported by the evidence. It was open to the judge to find on the facts the way he did.

22. Even if the judge had considered the "passengers running away" comment, he clearly would not have accepted it as an explanation in view of his comment in his judgement :-

"It would be absurd and entirely unbelievable to infer that he been a casual passer by, seen an empty taxi and driven it away."

23. This would equally be true even if there had been no identification by the victim of the Appellant as one of the robbers. Mr. Mackenzie-Ross challenged the identification by reason of the fact that the Appellant, on his own admission, did not get a clear view of the 1st Defendant at the time of the original incident, but, nevertheless, taken to its least the identification could be taken to mean that the Appellant was not strikingly different from the offender.

24. We were satisfied that the evidence against the appellant was overwhelming and that even if the judge should be held to have erred by drawing an inference from silence, the proviso should be applied and we therefore dismissed the appeal.

(1)    [1971] 1 All E.R. 322 (P.C.)

(2)    [1976] 63 Cr. App. R. 1

(3)   [1977] 64 Cr. App. R. 25 (P.C.)

(4)   [1892] 17 Cox CC 503 at 508

Representation:

Mr. Mackenzie-Ross (Kwan & Kwan) for Appellant

Mr. M. Ford, Crown Counsel, for Respondent/Crown