Hui Lam-wing v. The Queen
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CACC001212/1979
----------------- Coram: Leonard, J.A., Addison & Garcia, JJ. Date of Judgment: 20th May, 1980. ----------------- JUDGMENT ----------------- Leonard, J.A.: 1. This appellant seeks leave to appeal from a conviction on a charge of robbery and additionally a conviction on a charge of possession of an offensive weapon in a public place. 2. The facts are that on the 11th of November 1979 a premises known as Tsui Yuen Villa were invaded by a party of four people. These four people gained entrance to the premises by one of them, a girl, knocking at the door when apparently accompanied by a single man. When the door was opened the man pushed the door and the girl opening it was flung to the ground. The man produced a knife which was said to be twelve inches long and two other men also armed with knives dashed in. A practice which is all too common was then followed. The occupants of the premises were tied up and the premises ransacked. The woman who let the men in said that it was difficult to recognise anybody because of soft lights - one does not need much imagination to know why the lighting was soft. She said that knife shown to her which was the knife recovered from the appellant was similar to that which she saw on the premises. Apparently the police had information that this robbery was to take place because they arrived while it was continuing. It took them three to four minutes to gain entrance to the premises. There were apparently two staircases to the premises: one to the back and the other to the front. 3. The evidence was sparse as to the staircase at the back. We do not know to where it led. The evidence was that that staircase did not lead to the lane at the back called Man Ming Lane. Two of our number have very considerable knowledge of this locality both of us having acted as magistrates in Kowloon many years ago and been familiar with Temple Street and its environments which we do not believe have changed their character. That area is remarkable for the dens of thieves, of opium addicts, heroin addicts, and receivers of stolen goods. It is a place where the advent of police officers may cause people to run in all directions! The employee who opened the door told the court that the backstairs did not lead to Man Ming Lane and that the robbers used a large window and climbed down into the street by it. 4. The evidence of the police officers was that they when seeking to gain entrance through the glass door in front of the premises heard people using the back staircase so they dashed downstairs to the rear lane. Again the evidence is sparse. We don't know whether they ran down the back staircase or the front staircase but must assume that they ran down the front staircase and then around to the rear lane. As I have said there were four robbers one of whom was the woman or girl who gained entrance to the premises. The police officer saw when they got round to the back lane two people running out from it. They gave chase and they caught the appellant. As they caught him they noticed a knife falling from his left foot. When he was searched it was found that around the calf of his leg was an elastic bandage such as is generally used for post-surgical purposes and which served as an obvious receptacle for the knife. In his pocket was found a paper sheath which also fitted the knife. The other man escaped. No mention is made as to what happened to the woman whom one would in the ordinary course of the events have expected to run more slowly than the males nor is there any mention made as to the fourth member of the gang. 5. The appellant having been arrested was taken back to the police station and then what is referred to as a cautioned statement was taken from him. We need only to look at this document to know that it should not have been tendered nor accepted in evidence. This man was at the time the statement was made clearly under arrest. The statement is on a witness' report form and it was throughout conducted quite clearly by means of question and answer. The appellant was asked questions about his history and firstly about how he came to Hong Kong. He admitted that he was an illegal immigrant. There is recorded in the statement, quite baldly, the question "Have you any criminal record in Hong Kong? and the answer: I was arrested once either in this March or April for the offence of robbery. I was allowed to bail out at $4,500 to await for trial in San Po Kong Court." The record of the statement continues:
He indicated that he understood and the interview thereafter proceeded by way of question and answer. The first question asked is a double question: It is "With whom did you go to rob in Tsui Yuen Villa"! His answer was: "I went to rob with Hing Chai, Keung Chai and an unknown dance hostess." And then he asked a whole series of further questions. I cannot understand how the learned trial judge admitted such a statement as a voluntary statement. I certainly should not have done so and no member of this court would. The statement must go. 6. We are then left with the evidence of the arresting police officers to determine whether or not the appellant was proved beyond reasonable doubt to have participated in this robbery. The essential evidence was that he was seen running from near the scene of the robbery. How he got to the place where he was first seen remains a mystery. We do think that the circumstances are attended by the gravest of suspicion but we do not think they were enough for the learned trial judge to conclude beyond reasonable doubt that he was guilty of the robbery. 7. There are other matters in the reasons for verdict which cause us to raise our eyebrows. Having given the history of the chase and the arrest the trial judge has this to say:
Why this sentence is prefixed by the use of the words "As the accused later elected not to give evidence" we know not but their use raises in our minds the suspicion that the trial judge thought that the onus had in some way shifted. He stated that he had no hesitation in accepting the evidence of all four witnesses as being honest and reliable. He does not however indicate how he reconciles the evidence of the inmates that the robbers escaped through a back window with the evidence of the police officers that they heard them running down the back staircase. 8. The penultimate paragraph of his reasons is also of importance but it is equally of importance that in the sentence before that penultimate paragraph he says:
9. The penultimate paragraph reads:
10. On the wording of the statement itself we cannot share this certitude. We consider that the behaviour of the appellant was gravely suspicious. We do not however think that this was enough to sustain the charge of robbery. We would mention that we do not consider that this case was as well investigated or presented as it might well have been. A plan of these premises, and an indication of distances from the first floor of them to the back lane might have assisted the trial judge and would have assisted us. Without any such plan and without any indication as to the precise method by which people could leave through the back of these premises we do not think that this conviction for robbery can properly stand. 11. As far as the charge of possession of a knife is concerned it is in no way affected by any of these matters of which I have spoken. The possession of the knife was proved independently of the statement. There was no question of the trial judge being affected by the latter insofar as the possession of the knife was concerned. The police officers stated that the knife came from the person of the appellant and he did not deny that. In the result the conviction for robbery must be set aside. The conviction for possession of the offensive weapon will remain and the sentence of nine months' imprisonment imposed for that offence will likewise remain and that sentence will continue to be consecutive to any other term of imprisonment imposed for any other offence. Addison J.: 12. There is only one thing that I would like to say and it concerns the statement taken by the officer from the appellant. That statement has been rejected by all members of this court. Persons under arrest for criminal charges have a constitutional right not to be taxed by police officers without first being cautioned. This particular statement is a classical example of a caution being administered and then immediately on its heels being followed by a series of questions which throws that constitutional right out of the window. It would indeed do no harm if police officers would on occasions remind themselves that a person in their custody is not obliged to answer anything unless he wishes to do so and that that phrase is not a mere introduction to give the officer the right thereafter to ask numerous questions. Representation: Miss C. D'A Remedios (D.L.A.) for appellant. Miss Crabtree, C.C. for Crown/respondent. |