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KONG WOON MAN v. THE QUEEN

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1202-EN-1968-07-05

KONG WOON MAN v. THE QUEEN

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CACC000152A/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 152 OF 1968

-----------------

BETWEEN
	KONG WOON MAN	Appellant
	AND
	THE QUEEN	Respondent

-----------------

Coram: Hogan, C.J. and Pickering, J.

Date of Judgment: 5 July 1968

-----------------

JUDGMENT

-----------------

1. The appellant was convicted before the District Court of two charges of robbery with violence contrary to Section 40(1) (b) of the Larceny Ordinance, Cap.210, and one charge of assault with intent to rob contrary to sub-section (1) (a) of the same section. He was sentenced to 3 1/2 years' imprisonment on each charge the sentences to be concurrent. His appeal, which is against conviction, was accompanied by an application to this court to hear further evidence under the provisions of the Criminal Procedure Ordinance, Section 81 sub-section (9) (c). We have ruled separately upon that application and the result of our ruling was that we declined to hear the proposed further verbal evidence or to accept a fresh exhibit in the form of a letter written by the appellant since his conviction, in which he protested his innocence.

2. The two robberies occurred respectively on the 2nd and 4th of February, 1968, both at Kung Lok Road, Kwun Tong, Kowloon; in the former a taxi-driver was robbed by his passenger of a wrist watch and $20 and in the latter another taxi-driver was similarly robbed of a wrist watch. In each case the driver was struck on the head at the time of the robbery. Both wrist watches were subsequently recovered by the police from pawnshops and identified by their respective owners as those stolen from them and by the appellant as those which he had stolen.

3. It was, however, the assault with intent to rob, which occurred on the 7th of February 1968, that led to the arrest of the accused. The victim in this case was another taxi-driver and the location was again Kung Lok Road, Kwun Tong. This driver gave evidence of being hailed by the appellant who directed him to Kung Lok Road and, after some discussion as to the fare, seated himself in the back of the car directly behind the driver. When eventually the car stopped at the top of a slope in Kung Lok Road at a deserted and unlighted spot the appellant, according to the driver, put his left arm around the driver's neck, poked a hard, cold object into the back of his neck and said: "Don't move! If you move I'll fire a pistol and shoot you". At this stage the driver offered his passenger money and bent forward in an attempt to remove his neck from the bottle whereupon the passenger struck him twice on the right side of his head. Since the handbrake of the car was not engaged, the effect of this tussle was to cause the car to move backwards down the slope and, as this was happening, the driver snatched the bottle from his passenger and threw it out of the window. As the driver became conscious of two people moving towards the car, the passenger opened the offside rear door and jumped out whilst the car was moving quite fast. Regaining control of his vehicle, the driver proceeded to Kwun Tong Police Station where he reported the incident.

4. The two persons whom he had seen whilst the car was slipping backwards were, in fact, police officers who testified to seeing this vehicle, AG9807, pass them whilst their car was stationary. They had followed it and saw it stop at the top of the steep slope in Kung Lok Road. The interior light of the car was on and both officers said that they saw the passenger in the rear seat put his left arm around the driver's neck and strike him with some object. The driver of the police vehicle stopped parallel with the taxi and both officers alighted; one of them fell in an attempt to open the nearside rear door of the taxi whilst it was slipping backwards, but the other saw a man "dart" out of the taxi and also saw a bottle fall from it and roll downhill. The taxi, having come to rest against a danger sign, made a U-turn and drove off whereupon the second officer approached the man who had jumped from the taxi and was on the ground his face covered with blood and unable to speak. Both officers identified the man on the ground as the appellant. When this party arrived at the police station, the taxi-driver, who was already there, also identified the appellant as the man who had struck him. The appellant was removed to Queen Elizabeth Hospital and subsequently the police, who found no other objects in the area recovered an aerated water bottle from a spot about forty yards from the danger sign against which the taxi had come to rest.

5. On being discharged from hospital on the 21st of February 1968, the appellant was interviewed by Corporal 1121 and as a result made certain statements under caution which implicated him in the occurrences of the 2nd and 4th February. At his trial in the District Court the appellant objected to the admission of these statements on the grounds that he was induced by fear and promises to make them but after hearing evidence on the voire dire the learned trial judge admitted the statements and also statements made in answer to two of the charges, which statements were also made the subject of objection by the appellant on similar grounds.

6. At an identification parade on the 22nd February 1968 all three victims identified the accused as the person who had assaulted and in two cases, robbed them.

7. Of his nine grounds of appeal, counsel for the appellant appeared to place most reliance upon the suggestion that the four statements made by the appellant, Exhs. P2, P3, P5 and P6, were wrongly admitted by the learned trial judge who, counsel said, never directed his mind to the fact that the onus was on the Crown to satisfy him beyond any reasonable doubt of the free and voluntary nature of the statements. We do not propose to review in detail the argument which took place before us for and against this proposition. When there are allegations of beatings, threats and gifts as the preliminaries to the taking of statements, the task which faces the Crown is in its essentials that of proving a negative but given credible evidence by Crown witnesses as to the circumstances which preceded and, perhaps more important, the circumstances which did not precede the taking of a statement, the burden upon the prosecution is less onerous than that phrase at first sight implies. This is all the more so where an accused's version of the events contains inherent improbabilities. In this case we would view with pronounced scepticism the appellant's account of having been given some $320 by a police corporal as an inducement to make statements; nor do we think that the learned trial judge was wrong in rejecting the appellant's story of being beaten by a group of five or six police officers on the day prior to his statements in answer to two of the charges. Having considered the evidence as a whole we are far from persuaded that the judge was in error in admitting the four statements nor do we consider that there is anything in the further ground of appeal that he placed too much weight upon them in the absence of other corroborative evidence. If corroboration were needed there was ample corroborative evidence in the identification of the appellant by the three drivers and in the recovery of the two wrist watches from pawnshops mentioned in the statements - a recovery which the learned trial judge did not apparently regard as either fortuitous or the result of a massive operation by the police to locate pawnshops at which particular makes of watches had been pawned on or shortly after the dates of the two offences in the course of which the watches were stolen.

8. Apart from the trial judge's admission of the four statements to which we have referred, the only other ground of appeal upon which we invited counsel for the Crown to address us was the suggestion that the evidence concerning identification was unsatisfactory. This criticism was levelled primarily at the circumstances of the identification parade at which all three drivers identified the appellant. It appears that at the date of the parade the appellant's face still bore grazes and bruises, effects of his fall from the taxi some fifteen days previously, but whilst the driver of that particular taxi might well have expected such a condition as the result of his knowledge of the events of the night of the 7th February the other two drivers, who also identified the accused on the parade, would not appear to have had reason to expect anything of the sort since they were robbed on the 2nd and the 4th of February respectively. The further suggestion, that the two victims of the events of the 2nd and 4th of February could not reasonably have identified the appellant on the parade since they had each seen him for only a few minutes approximately three weeks previously, does not withstand the impact of the evidence. Wong Fuk Hing. who was robbed on the 2nd of February said that when the passenger who robbed him entered his car the interior light was on and he got a good look at the man's face, both then and subsequently through his rear vision mirror, the interior light of the car being on during the whole journey. Wong Chiu Bing, who was the victim on the 4th February, also testified that his interior light was on and that he saw the face of his passenger when turning to ask the latter where he wished to go.

9. Moreover, in the present case, the evidence of identification did not rest wholly upon the parade for the appellant was additionally identified on the morning of the 7th February by the driver from whose taxi he had that morning jumped, as the person who had assaulted him. In our view, the spirited attack made upon the evidence of identification must fail.

10. The remaining grounds of appeal were as diverse as they were tenaciously-urged by counsel for the appellant but we find no substance in them. We are wholly unable to agree that the events of the early morning of the 7th February were consistent with a simple fight between the appellant and the driver and that there was insufficient evidence to show an intention to rob on the part of the appellant. Further, we see no illogicality, as claimed by counsel for the appellant, in the two police witnesses in the police vehicle being able to see what was happening in the lighted interior of the taxi; nor do we draw any inference from the fact that the events of the 7th February were not altogether similar to those of the 2nd and 4th of February, for we have little doubt that the similarity would quickly have become complete with the robbing of the driver had the car not begun to slip backwards. Finally, we discount completely the suggestion that the detective corporal in charge of the investigation into these three offences was over-eager to associate the man arrested at the scene of the assault on the 7th with the robberies which took place on the 2nd and 4th. That association was, in our view, proved by cogent evidence.

11. Taken as a whole the evidence against the appellant, resting as it did not only on identification by the victims but on the finding of the watches and his own statement was very strong and would appear fully to justify the conclusion of the trial judge.

12. The application for leave to appeal against conviction is dismissed. There was no appeal against sentence.

Representation:

Henry Hu (Lam and Tong) assigned for Appellant.

Evans C.C. for Respondent.

Judgment read on 5.7.68.

CACC000152/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 152 OF 1968

-----------------

BETWEEN
	KONG WOON MAN	Appellant
	AND
	THE QUEEN	Respondent

-----------------

Coram: Hogan, C.J. and Pickering, J.

Date of Judgment: 11 June 1968

-----------------

DECISION

-----------------

1. We are dealing now with an application made on behalf of the appellant to this court to hear fresh evidence under the provisions of the Criminal Procedure Ordinance, Section 81, sub-section (9) (c).

2. Although we have had no affidavits setting out the nature of the evidence which it is now sought to adduce, counsel has produced to us two documents. One is a letter written by the appellant to a Mrs. Elliott, in which he simply states that he did not commit the crime of which he has been convicted and the other is a lengthier statement setting out in some detail his account of what occurred on the 7th of February, and also setting out the details of what he claimed to be doing on the 2nd of February and the 4th of February, 1968, as well as certain details about what he alleged happened when he was questioned by the police.

3. In support of his application for the admission of evidence of the kind indicated, counsel for the appellant has referred us to the case of Robinson v. R.⁽¹⁾. In that case a letter which had been written by the accused after conviction was admitted in evidence by the Court of Appeal. The letter was a document of a very different nature from that to which counsel for the appellant has made reference in the present case. It was a letter written by the appellant from prison in which he admitted having committed the offence of which he had been convicted, but advanced certain reasons for having done so. Mr. Muir, as he was then, in seeking the admission of the document, drew attention to Section 9 of the Criminal Appeal Act, which contains provisions similar to s.81(9) of our Criminal Procedure Ordinance, and to the fact that the appellant in his grounds of appeal, claimed that the decision in the lower court was against the weight of evidence. Apparently the argument was that the appellant could not possibly sustain this ground of appeal, in that he had, as his letter indicated, committed the crime in question. Subject to the appropriate safeguards, an admission by an accused person is normally admissible. Counsel has been able to produce no case in which a Court of Appeal has ever entertained a letter of the kind now put before us, where the appellant merely repeats subsequently the allegation or contention of innocence which he made when he pleaded not guilty in the court below. The letter, counsel for the appellant says, would be put in as showing consistency of conduct by the appellant in that he is maintaining the same attitude he maintained when he pleaded not guilty; but, apart from other objections, it is not his conduct or attitude at the trial that is in issue. The letter is, of course, purely self-serving and we doubt if it even falls within the accepted categories of what is admissible in the course of criminal proceedings at first instance. We can certainly see no reason for admitting it as further evidence on appeal.

4. Turning to the evidence which counsel would seek from the appellant, if he were allowed to give evidence before this court, counsel has directed our attention to the decision in the case of R. v. Rose⁽²⁾. In that case, counsel for the appellant sought to call the appellant before the Court of Appeal, on the ground that counsel having, in exercise of his discretion, decided not to call the accused at the trial had not expected the judge to comment so strongly on this, that his client now wished to tell his own story, and that counsel wished to call him for that purpose. Mr. Justice Bray, giving the decision of the court, which consisted of himself, Avory J. and Sankey J., as he then was, said:-

"The rule of this Court is that it will only hear an appellant who did not give evidence at the trial in very exceptional circumstances; otherwise defendants would take their chance of not being witnesses below."

And he quoted for that proposition the cases of Malvisi⁽³⁾, Rubens⁽⁴⁾, Caldwell⁽⁵⁾, Trevarthen⁽⁶⁾, T.E.V. King⁽⁷⁾and Lireak⁽⁸⁾. He went on to say:-

"There is hardly any instance of an appellant not called below giving evidence here, and none in a murder case except the wholly exceptional case of Robinson⁽¹⁾."

5. Counsel has been unable to produce any direct authority on the other side but he claims to distinguish this case of Rose⁽²⁾ on two grounds, primarily on the ground that the accused in that case had the benefit of legal advice and that it was the legal adviser who, according to the report, decided not to call the applicant at the trial. He says that, in the present case, the accused did not have the benefit of legal advice and that, in making up his own mind not to give evidence in the court below, he may have been influenced by the fact that he had given evidence on the two "voir dires", which had taken place in order to determine whether previous statements made by him were or were not admissible, and his evidence had not been believed by the trial judge on those two voir dires.

6. Counsel's further argument for discounting the value of Rose⁽²⁾ in the proceedings before us is that the section on which he relies quite clearly indicates that the court can hear the evidence of any witness, including the evidence of an accused, on appeal.

7. He says that it is not proper, in these circumstances, for this court or any other court, to introduce a rule which runs counter to the provisions of the section itself. It may, however, be noted that Mr. Justice Bray did not say that the courts would never hear an appellant; he said that only in very exceptional circumstances would the courts hear an appellant who had declined to give evidence in the court below.

8. Counsel in further support of his contention that Mr. Justice Bray's proposition should not govern the proceedings in the present case, directed our attention to the case of R. v. Parks⁽⁹⁾, which counsel contends lays down the general rules applicable to the admission of further evidence on appeal. He says that it is to these general rules we should look in determining this application. According to the headnote, the court in that case, held that it would only exercise discretion under Section 9 of the Criminal Appeal Act, 1907:

"to admit further evidence when the evidence was not available at the trial, was relevant to the issue, and was credible evidence, capable of belief;"

In that particular case, applying these criteria, the court did admit the evidence.

9. It is clear from these four requirements that the first, the requirement that the evidence was not available at the trial, presents a formidable obstacle to the appellant in the present case. However, counsel for the appellant, in his very pertinent argument on the point, says that he can satisfy that particular requirement, because, when the appellant was asked in the court below whether he wished to give evidence, and when his rights were explained to him, the right either to remain silent or to go into the witness box and give evidence or make a statement from the dock, he replied, 'I am not feeling well. I shall keep quiet and I leave everything in the court's hands,' to which the court replied, 'You elect to remain silent?', and the accused said, 'Yes'. The case was then adjourned - that was the 16th of March, which was a Saturday - to the 18th of March, a Monday, for decision. Counsel contends that these words, 'I am not feeling well', indicate that the appellant did not feel up to giving evidence on that day, and that, in effect, is the same thing as saying that the evidence was not available.

10. Counsel for the Crown seeks to meet this argument by saying that this appellant had earlier in the trial secured an adjournment of seven days on the strength of a medical note to the effect that he was not well and that he would not be physically fit to attend the court for seven days. That was on the 6th of March, and on that day the trial was adjourned to the 15th of March, when the parties appeared before the court and the proceedings took their normal course. Counsel says it is quite clear from the record of what then occurred that the accused was apparently quite well at the time, asking a number of questions of the witnesses who gave evidence against him. It is also apparent, counsel says, that he knew perfectly well that if he was unwell he could seek medical assistance, and could obtain an adjournment for whatever time was appropriate. The fact that he asked for no adjournment at that time and merely made this brief passing reference to not feeling well could not, in these circumstances, counsel argues, be taken as shown that he was unable to give evidence at that particular juncture.

11. It seems to us that in a matter of this kind we must rely on the judge to ensure that matters proceed in a manner appropriate to do justice to both parties, and that, in the absence of an indication to the contrary, we can assume this responsibility has been properly discharged. We think that if the judge had any anxiety at all as to the state of the accused's health, he would have given effect to that anxiety. We do not think we would be justified in holding, merely from this brief passing reference in the accused's statement to not feeling well, that the evidence which the appellant's counsel is now seeking to put before us in the Court of Appeal, could not have been available at that time if the accused had wished to give it.

12. This case of Rose⁽²⁾ does not appear to have been referred to in any subsequent cases, but it is still quoted, although decided as long ago as 1919, in Archbold's Practice and Pleading as an authority on this point. Moreover the reasons which were given by the Court of Appeal in England in that case seem to us to be cogent reasons. If we were to permit people who have elected not to give evidence in the court below to come forward and give evidence to the Full Court on the grounds advanced in the present case, and to re-open the case by giving fresh evidence in the appellate court, we would in effect be transferring, without adequate reason, an important part of the trial from the lower court to the appellate court. We see no reason in this particular case to depart from what has been almost an invariable practice of the courts, both in England and in Hong Kong; consequently we refuse this application.

Representation:

Oral decision reduced into writing.

(1) XII C.A.R., p.226

(2) 14 C.A.R. p.14;

(3) 2 Cr. App. R. 152, 251, 1909

(4) 2 Cr. App. R. 167, 1909;

(5) 6 Cr. App. R. 151, 1911;

(6) 8 Cr. App. R. 97, 1912;

(7) 10 Cr. App. R. 44, 1914;

(8) 10 Cr. App. R. 264, 1914.

(9) (1961) ...(illegible) W.L.R. p.1484