TSANG KAU TSE CHOW v. THE QUEEN

CACC000700/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.700 OF 1968

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BETWEEN
	TSANG KAU TSE CHOW	Appellants
	AND
	THE QUEEN	Respondent

Coram: Huggins, J.

Date of Judgment: 12 December 1968

 

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JUDGMENT

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Huggins, J.:

1. The first appellant was charged with possession of an offensive weapon and with robbery with aggravation and the second appellant merely with robbery with aggravation. The first appellant pleaded guilty to the first charge and both were found guilty by the learned magistrate on the second charge. They appeal against their convictions.

2. In so far as the first appellant appeals against the conviction for possession of an offensive weapon the appeal is misconceived as no appeal lies where there has been a plea of guilty.

3. As to the second charge it is alleged that there was no evidence or no sufficient evidence whereon to found the conviction. The evidence consisted of oral evidence by two ladies who were taking their children for a walk near a reservoir near the 5?milestone on Taipo Road. They said that the two appellants came up to them: they came from behind and the ladies stood aside to let them past. The appellants did not pass but threatened them. The first appellant put a foot on a wheel of a perambulator and pointed at a bag. They made it quite clear that they were wanting money and the ladies were so frightened that one of them handed $10 to the first appellant. The first appellant had a knife in his belt, but did not at any time remove it from his belt, and the second appellant was wielding a stick in such a manner that the children were frightened. The ladies, perhaps understandably, were not entirely agreed as to what happened. One said that the appellant actually asked for money but in cross-examination she said she could not be sure whether he actually used the word "money". However, as I have said, according to the ladies the appellants left no doubt at all in their minds what it was they were after.

4. The appellants were arrested by the police some days later in the same area although as the police came out of their ambush the appellants tried to run away. The other evidence for the prosecution was that of two statements which the learned magistrate thought proper to admit in evidence. The first appellant said:-

"I together with Tse Chow - two persons - robbed that European woman of $10. The money has been spent."

The second appellant said:-

"I understand. When Tsang Kang was doing the robbery I was present. Later I together with Tsang Kang spent the $10 on meal."

5. The defence advanced before the magistrate was that the first appellant was merely begging for money and that $10 was given to him voluntarily. It was said that the second appellant was not at the scene at all, having stepped aside to urinate.

6. There was in my view ample evidence upon which the learned magistrate could convict if he believed that evidence. When it came to be considered whether the evidence was sufficient, the magistrate no doubt considered the fact that there was some question whether the word "money" had been used. He came to the conclusion that the ladies were telling the truth and I have no reason at all to think that he came to a wrong conclusion.

7. The appeals are dismissed.

8. In fairness to the police I ought perhaps to add a word about the evidence of identification which was led because the learned magistrate criticized them for having led evidence that a large number of photographs had been shown to one of the two ladies by the police. He said that this was regrettable as the identification was not in issue. I think the reason for his criticism was not merely that the evidence was unnecessary but he thought an inference could be drawn from the production of these photographs that the appellants had previously been convicted. It would, of course, be highly improper to lead evidence that a witness had been shown photographs from the criminal records but there was nothing in the evidence here to suggest where the photographs had come from. The learned magistrate said that he drew no unfavourable inference from the evidence and in my view no one could reasonably draw an unfavourable inference from them. There is this further consideration: as the identification of the photograph preceded the identification parade it was material, when the evidence of identification at the parade was being weighed, that there had been a prior identification. The evidence of the identification parade was not "unnecessary" because when it was led it was not known whether the identification would be challenged and, even if it was unchallenged, the identity of the robbers was always in issue.

 

12th December, 1968.

 

Representation:

Mr. Evans for the Respondent Appellants, in person