THE QUEEN v. CHAN YUN HUNG

IN THE COURT OF APPEAL

1987, No. 32
(Criminal)

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J U D G M E N T

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Fuad, J. A.:

1. The Applicant, Chan Yun Hung, was convicted on 18 December last year by Judge Sanders in the Kowloon District Court of robbery  (1st Charge) and for the possession of an offensive weapon (a knife) contrary to s.33 of the Public Order Ordinance (3rd Charge).

2. He was sentenced on 2 January 1987 to 5 years' imprisonment on the 1st Charge and to a consecutive sentence of 6 months' imprisonment in respect of the 3rd Charge. He now seeks to appeal against his conviction and sentence on the 1st Charge.

3. When the Applicant appeared before the Court for trial, certain facts were admitted under the provisions of section 65C of the Criminal Procedure Ordinance. facts were. as follows:

"At about 9:35 p.m. on 20 July 1986, Madam Lau Oi See, a Chinese female aged 29, was walking up the staircase joining Tai Hang Tung Road and Begonia Road by the side of Lutheran Concordia School. At that time, an unknown Chinese male put his arm around her neck and a sharp object was pressed against her. She was then told to surrender cash and her gold necklace. As a result she handed over $800 and a gold necklace with gold pendant valued at $3,000. The unknown Chinese male then left with the money and necklace."

4. Another set of facts were admitted in relation to another charge (of attempted robbery on a different day) of which the Applicant was acquitted.

5. The evidence led by the prosecution was that on 1 August 1986 two police officers in plain clothes were on duty at about 7:30 p.m. outside the Heep Tung School, which was agreed by the prosecution and the defence to be another name for the Lutheran Concordia School. They were on the public staircase which connects Tai Hang Tung Road with Begonia Road when they saw a man, who turned out to be the Applicant, at the bottom of the staircase. The police officers were suspicious and went up to him and identified themselves. The Applicant was searched and a fruit knife was found tucked into the top of the trousers he was wearing.

6. One of the police officers told the Applicant that he was being arrested for possession of an offensve weapon, and cautioned him. The Applicant did not reply. The Applicant was then asked why he had the knife with him and replied: "Ah Sir, it's for robbery. You now have caught me red-handed. What can I say?"

7. The same police officer told the Court that he then reminded the Applicant that he was still under caution, and asked if he had committed any robberies in Shek Kip Mei. Applicant said "yes”, adding that at about 10:00 p.m. on 20 July 1986 on a staircase outside Heep Tung School near Begonia Road he had robbed a middle-aged Chinese woman. The Applicant was then arrested and taken into custody.

8. The other police officer who was present was tendered for cross-examination but no questions were put to him by the defence.

9. The prosecution sought to put in two cautioned statements from the Applicant taken by another police officer, but after a voire dire they were ruled as inadmissible, and so the only evidence against the Applicant was the evidence of one of the police officers who had arrested him, coupled with the admitted facts about a robbery on Madam Lau Oi See.

10. The Applicant gave evidence during the trial and called no witness. He explained that he had bought the knife for his mother, denying that it had been tucked into the top of his trousers. He said that it was not true that he had told the police officers that he had the knife with him for a robbery. He also denied that he had said anything about committing a robbery on 20 July outside the Lutheran School.

11. The judge believed the police officer who had arrested the Applicant and accepted his evidence that the only explanation that the Applicant had given for his possession of the knife in a public place was that he had it for a robbery. The judge rejected the explanation, given in Court by the Applicant for his possession of the knife and therefore found the 3rd Charge proved.

12. As regards the robbery charge, the judge found that the Applicant had “frankly admitted [to the police officer concerned] that he had committed the robbery alleged in the 1st Charge.”

13. Mr. Griffith, who appears for the Applicant, has submitted that the conviction for the robbery could not stand because the words found to have been used by the Applicant upon his arrest did not amount to an admission to the offence charged in the 1st Charge for there were discrepancies between his admission and the agreed facts relating to the robbery by an unknown person of Madam Lau Oi See on 20 July.

14. He cited a number of authorities dealing with equivocal confessions or admissions. I will not refer to them all. In R. v. Barker and Page^(l) a detective sergeant who was investigating a theft told Page that he was a police officer and cautioned him. Page was then told that he would be charged with being concerned with others in stealing ladies' watches from Folkestone Pier on or about a certain date. Page replied "All right". The Court held that although the reply was admissible, the words he had used were equally consistent with innocence or guilt for his reply might merely have meant that he would go with the police to the police station. Since there was no other evidence, the conviction was quashed.

15. In R. v. Pilley⁽²⁾, two of four persons accused with breaking and entering made statements implicating the appellant. They admitted their own guilt, and when confronted with what they had said, the appellant said: "That's right". The conviction ,vas quashed because of a breach of the Judge's Rules, and on the ground there was no evidence apart from the accused's equivocal response.

16. Then, there was R. v. Schofield⁽³⁾ where the appellant was charged with theft and he said: "Just my luck". This the judge treated as an admission. On appeal, it was held that the Court could not be satisfied that it should be so treated because it might have been an expression of disappointment on the part of the appellant who has just been released from prison, that he was being charged with another offence.

17. And the final case I will refer to is R. v. Metcalfe⁽⁴⁾ where the judge had remarked to the prisoner, who was charged with being an habitual criminal: "There is a long list of convictions against you”. The prisoner had replied "Yes, sir". This was held not to be an admission that the list was correct or that the matters contained in the list were true. This aspect of the case comes out more clearly, we are told, in the case as reported in Vol. 135 of the Law Times Reports at p.40.

18. Mr. Griffith frankly concedes that none of these cases were directly in point. No authority need surely be cited for the proposition that if a conviction is based on an equivocal statement by the accused, if there is no other evidence to support the conviction, it cannot stand.

19. In this case, it is true that in the agreed facts it is stated that Madam Lau was robbed at about 9:35 p.m. while the Applicant talked of a robbery at about 10:00 p.m.  It is also true that in his admission to the police, the Applicant spoke of robbing a middle-aged Chinese woman, whereas on the agreed facts she was shown to be aged 29 which nowadays could hardly be regarded as middle-aged. These are the discrepancies to which Mr. Griffith pointed.

20. In our judgment, the proper test to apply is to consider whether at the conclusion of the prosecution case, it would have been proper for the judge to have upheld a submission of no case to answer. We have no doubt that, since the robbery perpetrated on Madam Lau mentioned in the agreed facts was at night on a particular staircase, and since the Applicant had admitted robbing a Chinese lady on that very night on the same staircase, although "about" half an hour later, the evidence was sufficient to require the Applicant to enter upon his defence. As it was, he chose to deny that he had used the words attributed to him and, therefore, offered no explanation for their use.

21. The judge accepted that he had made the admission and we are satisfied that there was ample evidence to justify his conclusion that the Applicant had admitted the robbery of Madam Lau's money and her necklace which was described in the agreed facts.

22. The conviction was perfectly proper and the application for leave to appeal against conviction is dismissed.

23. On behalf of the Applicant, Mr. Griffith submits that the sentence of 5 years' imprisonment for the robbery charge was too severe and he suggests that the judge erred by imposing that sentence because it was contrary to the guidelines issued by this Court in Mo Kwong Sang v. The Queen⁽⁵⁾. He drew our attention particularly to the words of the Chief Justice on p.6ll where he said:

"We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years."

24. Mr. Griffith contends that there was no evidence that the Applicant was carrying a knife or other dangerous weapon and that whatever the weapon was, he had not displayed it to his victim. With due respect, Mr. Griffith has fallen into the error of attempting to construe the words used by the Chief Justice on that occasion as if the judgment were a statute. There can surely be little difference between someone who waves a knife in front of his victim and someone who presses a knife in the victim’s back, so far as sentence is concerned.

25. Mr. Griffith suggests that it was wrong for the judge to regard the "sharp object" as being a dangerous weapon without knowing what it was and that the judge was wrong in inferring that the woman must have been very frightened when she was being robbed. We are unable to agree. We think it is in accordance with common sense that any person, especially a woman on her own, who has an arm placed around her neck at night whilst a demand is made to hand over money with something sharp pressing into her back will, unless she is possessed of rate fortitude, be terrified.

26. We see nothing wrong in principle with the sentence imposed and we, therefore, dismiss the application for leave to appeal against sentence as well.