THE QUEEN v. LAM KAM WAH

1986, No. 596

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

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JUDGMENT

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Penlington, J.

1. After the hearing of this application we refused leave to appeal against conviction and said we would give our reasons in writing later. This we now do.

1. This is an application to appeal against convictions on charges of robbery and of resisting arrest by a police officer.

2. The evidence was that a Mr To Yip Wo was attacked by two men outside the Kwangtung Provincial Dank in Yuen Long at 10:10 a.m. on the 23rd June 1986. He was carrying some $44,000 in a bag and resisted attempts to take this from him. However he was punched and kicked and finally the men succeeded in taking the bag.

3. The incident attracted the attention of a constable, P.C. 19940, who was on the other side of Tai Tone Road. He said he chased one of the men via some eight different streets and round several corners, but keeping him in sight at all times. He did however manage to get out a call on his beat radio and as a result a colleague, P.C. 7711, joined in the chase and caught the man being pursued in a construction site. The man, who was the applicant, resisted violently but was subdued and arrested. There was no evidence of what, if anything; the applicant said to the constables on his arrest.

4. Mr To said he could not recognise other of the two attackers and did not give any evidence of identification other than that one was wearing jeans. P.C. 19940 said that the man he chased was wearing jeans but at the beginning of the chase he could not see his face clearly. However he insisted that he never lost sight of that person during the chase.

5. Both constables were in uniform and gave evidence of shouting out to the man being pursued “Police. Stop running”.

6. The applicant gave evidence and said that he was outside the bank at the time and he was also assaulted by 2 men who he did not know. He ran away and was pursued by them. Finally however he heard somebody call out “Police. Do not run”. He stopped, was pushed to the ground by P.C. 7711 and handcuffed. He denied resisting arrest and said that while he did turn round to see who was chasing him he did not notice what they were wearing. It was not uniform.

7. The grounds of appeal originally filed were that the conviction was unsafe due to the lack of clear identification of the applicant as one of the robbers and the presence of discrepancies between the Crown witnesses.

8. However Mr Alderdice, who appears for the applicant, has filed a supplementary ground of appeal which he now takes as his strongest point. That is that the judge has commented on the failure of the applicant to put forward, at the time of his arrest, the explanation which he gave in evidence at the trial. He relies on the dicta of this Court in Cho Chak-bor v. R.[1]. In that decision the Court said that in directing a jury on this question a Judge should follow what was said in R. v. Tune[2]. That was that he should simply tell the jury what was said by the accused at the time, or that he said nothing, without further comment. In R. v. Gilbert[3] Viscount Dilhorne said: “In our view it may not be a misdirection to say simply ‘this defence was first put forward at this trial’ or words to that effect but if more is said it may give rise to the inference that a jury is being invited to disregard the defence put forward because the accused exercised his right of silence”.

9. Here the trial judge said in his reasons for verdict, “Even up to the time of P.W.4 (P.C. 7711) appearing, there was no evidence that he told P.W.4, that he had been assaulted or explained that a mistake of arrest had been made”.

10. This is an area of law which, despite the cited decisions and other dicta of the courts in England, is by no means without difficulty. A person, on arrest, is entitled, whether or not he has been cautioned, to remain silent (there is dicta per Diplock L.J. in R. v. Hall[4] that the caution is only reminding him of his constitutional right to remain silent) and, if he does exercise that right, that should not be the subject of adverse comment.

11. Here the trial judge, we feel, has simply stated the fact that there was no explanation given by the accused at the time of his arrest. We do not accept Mr Alderdice’s submission that it was a substantial reason for his decision. We also feel that, bearing in mind the circumstances of the pursuit and arrest, all he was saying was that at some stage the applicant must have realised he was being chased not by assailants but by policemen and would have been expected to have stopped and told them of the attack on him. He did not do so.

12. We are satisfied that he has accepted the evidence given by constable 19940, who saw the attack and set off in pursuit of the person, when he says he kept the applicant in sight at all times until he was arrested by his colleague. That, we think, was the basis on which the trial judge was satisfied that the man arrested was one of the men who had assaulted Mr To. There was totally undisputed evidence that this gentleman was assaulted and quite seriously injured. He was kicked, there was a struggle over the money. Clearly there were two people who assaulted him and then ran away. The explanation given by the applicant means that at the same time and at the same place, he was also assaulted by two other men, men he did not know, who then chased him. The two pursuits then got somehow mixed up. We think that such an explanation is totally incredible and the trial judge was right to reject it. We do not think that this is a situation which requires us to apply the provisio but even if that was the position, we would have no hesitation in doing so. We are satisfied that this appeal against conviction must be dismissed.