Wong Keng and Another v. The Queen
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CACC000121/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 121 OF 1971 -----------------
Coram: Rigby, C.J., Huggins and Pickering, JJ. Date of Judgment: 2nd April, 1971. ----------------- JUDGMENT ----------------- 1. The first appellant was convicted upon the charge preferred against him of robbery. The brief facts of that case were that at some time during the morning of the 5th January, a person knocked on the door of a flat situated on the 11th floor of premises in King's Road. The master and mistress had gone out to work in the ordinary course of their business and the amah was there alone in that flat. Upon hearing the knocking on the door and the ringing of the door bell, she opened the door and a man forced his way in, followed immediately afterwards by two other men. Her hands were tied and she was gagged and pushed into the bathroom. Her head was also covered with a cloth. The premises were ransacked and a quantity of jewellery and other articles stolen. The amah managed to free herself and obtain assistance and as a result the police were called. That took place on the morning of the 5th January. 2. On the evening of the 9th of January a police party went to a stone house in Shaukiwan where they found the appellant. They informed him that he was suspected in connection with the commission of this offence. Thereafter, according to the evidence, the appellant produced from under his bed a leather suitcase. The suitcase was opened and in it was found a quantity of jewellery, part of which was in fact subsequently identified as being part of the property stolen from the premises on the 5th of January. 3. The appellant, according to the evidence adduced by the prosecution, made a cautioned statement in which he admitted the commission of this offence. Furthermore, when formally charged with the commission of this offence, he made a statement the contents of which are certainly consistent with him being a party in the commission of this offence. 4. The defence put forward by the appellant was that the police officers came to his premises where he lived; that he was sitting on his bed at the time; that he was beaten up and became unconscious and when he recovered his senses he found he was at the police station. He said that a piece of paper was put before him and he was compelled, as the result of beating and threats, to copy the contents of that piece of paper into a police constable's notebook. The contents of that paper was an admission of the commission of this offence. 5. The learned trial judge held the usual voire dire and he was satisfied that those statements made by the appellant were in fact freely and voluntarily made; furthermore, he found that there was clear corroboration in the contents of the statement implicating the accused in the commission of this offence by the fact that in the suitcase under the bed of the appellant was a quantity of the jewellery which had been taken from the flat on the 5th of January. 6. In our view, once it was accepted by the trial judge that the statements were in fact free and voluntary, there was ample evidence to corroborate the contents of those statements implicating the appellant in the commission of the offence. In those circumstances there was ample evidence to support the conviction and the application for leave to appeal against conviction must be dismissed. 7. The second appellant appeals against sentence. He pleaded guilty to two charges, one being concerned with the robbery in which the first appellant was also convicted, and secondly, a robbery on another day in somewhat similar circumstances carried out by himself and two other persons. He was sentenced to 12 months' imprisonment on each charge and the court further ordered that he be subjected to 6 strokes corporal punishment. The second appellant has a clear record and has never been in trouble before, and it is against what is said to be the severity of this sentence that he applies for leave to appeal. 8. In making the order for corporal punishment the learned trial judge made an order for 6 strokes of the cane subject to medical fitness. 9. It is the form of the order which we think is subject to criticism. In Criminal Appeal 545 of 1970, this court, differently constituted, in considering a similar order had this to say, and we quote:
In that case the court went on to say:-
The members of this court are in entire agreement with the views expressed in that case. We propose, therefore, to adjourn this appeal in so far as both appellants are concerned, until a certificate has been made available to us that the appellants are in fact fit to receive corporal punishment. 10. We should, perhaps, have added that in so far as the first appellant is concerned, although he has not appealed against sentence, a similar order for corporal punishment to the extent of 6 strokes was also made against him. The sentences of corporal punishment will be stayed until we have been informed by way of medical certificate as to whether or not the appellants are fit to receive corporal punishment. Representation: |