HKSAR v. KENNETH SIMON DHILLON

CACC 387/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 387 OF 2000

(ON APPEAL FROM DCCC 709 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 12 April 2001, the Appellant was given leave by Stock JA to appeal against his conviction on 11 September 2000 for attempted robbery. The Appellant was convicted following a trial in the District Court before Deputy Judge Kelly.

2. The particulars of the charge faced by the Appellant were essentially that on 23 June 2000 he had attempted to rob Man Kwai-wing (the victim) in Tsuen Wan.

Prosecution's case

3. The victim was a taxi driver who had picked up the Appellant in Kowloon at about 8.15 p.m. The prosecution alleged that as the victim's taxi approached a roundabout in Tai Chung Road, the Appellant put an arm around the victim's neck saying that he intended to rob him. The victim told the Appellant where he kept his wallet and the Appellant then told him to drive to the hillside nearby. The victim, however, was able to see a traffic police officer and he drove to where the officer was positioned to make a complaint of attempted robbery. The Appellant's first reaction on hearing the complaint was:

"Ah Sir, it's sheer misunderstanding, I didn't rob".

4. The investigation was then handed over to police who were in a patrol car. Police Constable Tse Ming, who was one of these officers, "sensed", when the Appellant spoke to him, that he had taken some alcohol and he described "a very slight alcohol smell". The officer described the Appellant as appearing to be "very sober". He asked the Appellant a series of questions which, from the Appellant's answers, revealed that the Appellant believed he had only $70 in his possession. This would not, as it turned out, have been enough to cover the fare for the journey which, according to the victim, the Appellant had wanted to make.

5. When the Appellant was formally arrested and cautioned, in the translation we have been given he told the arresting officer:

"Sir, since I did not have enough money to pay the taxi fare that I (intended to) rob the taxi driver's money on a momentary greed. I know I am wrong. Sir, I wish you could give me a chance for me to turn over a new leaf."

6. This was later recorded in writing at the police station and the Appellant signed this as being a true record.

7. The Appellant was then interviewed at greater length about his involvement. During this interview, the Appellant was asked what he had meant by his earlier answer where he had said in effect that he had insufficient money to pay the fare. He gave a somewhat indirect reply which was in similar terms to the explanation he had given to Constable Tse at the scene:

"At that time I had only 70 odd dollars Hong Kong currency with me."

8. A little later, he was asked why he had taken the taxi if he was aware that he could not pay the fare and he was said to have replied:

"Because I had some alcoholic drinks (which) made me not myself."

9. The Appellant then went on to admit how he had attempted to rob the victim. His alleged description of the offence provided a very similar account to that given by the victim. The Appellant was said to have added that he had wanted to be driven to a hill because this would have provided a quiet place in which to rob the victim.

10. Despite the Appellant's alleged assertion that he was in possession of only $70, and the arresting officer's apparent acceptance that this was correct because his brief search of the Appellant had apparently revealed only that much money in his possession, there was admitted evidence at trial that the Prisoner's Property Book showed the Appellant in fact to have been in possession of $107.10 in Hong Kong currency.

Defence case

11. The Appellant denied the offence when he gave evidence but he admitted having leant forward from his seat in the back of the taxi to slap the victim's neck because of an argument over the route being taken by the victim. He said also that the victim had exaggerated the complaint. The Appellant claimed to have consumed eighteen cans of beer during the course of that afternoon.

12. The Appellant said he had been made to admit the offence when the officer first assaulted him with three punches to the stomach and later fabricated parts of the written confession which he had signed under duress.

Judge's findings

13. The judge found that the victim had given evidence which was an "honest, accurate and unvarnished account of what happened". The judge rejected the suggestion that the victim had exaggerated the Appellant's acts arising from a dispute about the route which the victim had supposedly taken. On the contrary, the judge found that:

".... taken in the round, the victim gave a restrained account of what had occurred."

14. The judge had permitted the evidence of the Appellant's confession, both at the scene and at the police station, to be admitted into evidence. In his Reasons for Verdict, the judge stated that he had rejected the allegation that the Appellant had been punched three times at the scene of his arrest.

15. The judge accepted that the Appellant had been drinking alcohol but he found that the "consumption was such that he was not intoxicated to a degree that he did not know what he was doing". The judge went on to add that when he had reviewed the confession evidence again, in the light of all the evidence, he was sure the Appellant had made the admissions which had been alleged against him.

Grounds of appeal

16. It has been necessary to go into the evidence in some detail having regard to the basis on which the leave of the single judge was granted. It was expressed in this way:

"The point that has exercised my mind is this. The motivation for this robbery is said to have been the fact that the applicant did not have sufficient money for the taxi ride. That is what he himself is said to have told the police, and he is said to have told them that he had only $70 on him. He is said to have told them that, both on his arrest at the scene, as well as in his written statement. The police also say that they counted his money and that he had $70 on him. But it is in fact common ground first, that he had $107 on him; and secondly, that $107 was enough to pay for the taxi fare, whereas $70 was not.

It follows, therefore, that if the evidence of the officers was correct both the police officers and the applicant made precisely the same error as to the amount of money that the applicant had on him; and, further, that the applicant was admitting in his statement to the wrong figure; and saying, moreover, that it was that very inadequacy that had provided the reason for the robbery. Whether there is evidence that the applicant may simply have relied on what he had been told by the officer who counted his money, I know not. That has to be investigated.

I note also that the admissions allegedly made by the applicant were in direct contrast to the evidence of a police officer who first spoke to the applicant, that is, the officer stopped by the taxi driver, who said that the applicant denied the attempted robbery, saying that there had been a misunderstanding. In the context of an admission in his evidence that he had indeed assaulted the taxi driver, this question of a misunderstanding as to his motive for that assault was relevant.

Neither of these two matters is mentioned in the reasons for verdict, even though they were central parts of the defence.

The question, therefore, for consideration by the court is whether there is, in the light of these facts, anything unsafe in the verdict." (Emphasis added)

17. A full transcript of the evidence given at trial was ordered and we now have the benefit of this.

Omissions from judge's Reasons for Verdict

18. There is no doubt that the officers who were present at the Appellant's arrest believed that he was in possession of only $70 in cash. He was briefly searched at the scene and that is all that was found at that stage. This money was in his trouser pocket, and it consisted of $20 notes and some coins.

19. The evidence also revealed that the Appellant would have needed $90 to $100 to have been in a position to pay the fare for the journey which, according to the victim, he had undertaken. The arresting officer, who also later interviewed the Appellant, admitted that he was still unaware at the time of the interview of the full amount of cash in the Appellant's possession. By way of explanation, he said he had not counted "carefully" the amount of coins in the Appellant's possession.

20. The fact remains, however, that on the prosecution's case, the Appellant and the police seem to have been labouring under the false impression that the Appellant had insufficient money on him to cover the taxi fare whereas in fact the Appellant was carrying more than enough cash to pay the fare. Plainly, if the Appellant was aware of this, a shortage of cash could not have provided the motive for robbery.

21. In evidence, the Appellant stated that he was aware of being in possession of over $100 but that he had not told the officers this because he was not very sober at that time.

22. Mr Gavin Shiu, for the Respondent, submitted that there were several possible ways of viewing the evidence. Amongst these, he pointed out that as there had been copious references to the issue concerning the Appellant's alleged motivation for the offence during the trial, it must inevitably follow that the judge was alive to the arguments of each side even if the judge had chosen to make no reference to this issue in his Reasons for Verdict. It was quite possible, he suggested, that the Appellant was himself unaware that he was carrying more than $70.

23. On any view, the evidence about how much money the Appellant had in his possession was, in the context of this otherwise straightforward case, a matter of considerable importance. Obviously, the Appellant might have been under a false impression as to the amount of cash he had left over in his pockets, especially if he was to any real extent under the influence of alcohol. This was something, however, which the judge needed to address. It was at the heart of the case as the shortage of cash was said to have provided the actual motive for the offence. It could not have been the motive if the Appellant was aware he was carrying ample money to pay the fare. The judge, however, without addressing this issue, gave weight to the Appellant's alleged confession which could only have provided confirmation of the victim's account.

24. In this context, there was another feature of this case which perhaps took on added significance in the light of the gulf which lay between the very different accounts given by prosecution and defence witnesses as to what had really happened. This was the initial reaction of the Appellant to the effect that everything had been a "misunderstanding" which had come immediately after the victim had driven up to the traffic officer and made the allegation of attempted robbery. Yet this had been swiftly followed by a full confession to the arresting officer based upon a somewhat dubious motive to commit robbery, and a request for a chance to "turn over a new leaf".

25. It had been the Appellant's evidence, as we stated earlier, that he had struck the victim's neck when arguing about the route. Such behaviour, it seems to us, may have led the victim to have formed the wrong impression about the Appellant's motives if his account was true, and was certainly a basis for a misunderstanding.

26. These two features, what we will call the "$70 issue" and the Appellant's initial reaction that a misunderstanding had occurred, taken in combination would not, of course, necessarily have led to the Appellant's acquittal. We would, however, at the very least have expected the judge to deal with the $70 issue when arriving at his verdict. In fact, he made no reference at all to either of these aspects of the evidence. The $70 issue, in particular, had been canvassed not only on the special issue, dealing with the admissibility of the confession, but during the trial on the general issue as well. When the judge ruled on the special issue, he had understandably said that:

"It would not be proper for (him) to go into further reasons for (his) ruling at this stage." (Emphasis added)

27. Later, when he came to giving his Reasons for Verdict, the judge still made no reference at all to the $70 issue. The nearest he came to any reference which might be said to have related to this issue was when he said that his consideration of the evidence was "not limited to that to which specific reference is made."

28. For the reasons we have given, we think that this was a central issue in the case and to the arresting officer's credibility. Depending on whether the Appellant knew he had $70 or more than $70 on him, this either provided or did not provide a motive for an attempted robbery to which he was alleged to have confessed just after describing the complaint as a "misunderstanding". Where a "fabrication" of evidence was being alleged against some of the officers and an "exaggeration" of evidence was being alleged against the victim, some analysis of this vital issue was called for.

Conclusion

29. In the circumstances, we consider that the conviction was unsafe and unsatisfactory. Accordingly, the conviction and the sentence of three and a half years' imprisonment which was imposed on the Appellant are quashed.

30. We do not think that it would be in the interests of justice to order a re-trial bearing in mind, amongst other things, the length of time the Appellant has been in custody.