THE QUEEN v. CHIN CHI HO

IN THE COURT OF APPEAL

No.274 of 1995
 (Criminal)

BETWEEN

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Coram:  Hon. C.J., Power, V.P. & Ching, J.A.

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J U D G M E N T

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Ching JA (delivering the judgment of the Court):

1. The applicant was the 2^nd Defendant at a trial in which he faced four charges. The 1^st Defendant faced the first three with him. Both Defendants made cautioned statements at the police station in which they admitted the respective charges against them but each of these statements was held to be inadmissible. There was no other evidence against them on the 2^nd and 3^rd charges, nor was there any other evidence against the 2^nd Defendant on the 4^th charge and the Judge below held that they had no case to answer on them. Both Defendants were convicted on the first charge and the 2^nd Defendant now applies for leave to appeal against that conviction.

2. The first charge was that he, with the 1^st Defendant, had robbed P.W. 1 in a lift of a black handbag and the contents which were listed in the charge. The evidence against him was as follows. At about 11.30 p.m. on 3.3.94, P.W.1 was going home. She had gone into the lift of her apartment block when two men entered. One put his arm around her neck form behind and the other assaulted her. She dropped her black handbag. One of them picked it up and they ran away. She chased them and raised a hue and cry. Others joined in the chase. There were policemen in the vicinity on both foot and motor-cycle patrol. The two on foot patrol, PC 45593 and PC 53962, saw that the two men were being chased by a civilian man wearing a dark upper garment and heard him shouting that there had been a snatching . They joined the chase in Yan Ping Road. One of the motor-cycle policemen, PC 48131, put himself in the way of the two men who then turned and ran back towards the 2 foot patrol officers. PC 45593 grappled with one of them, the 1^st Defendant, and subdued him. He said that in the course of the struggle the 1^st Defendant swung his right hand at him and that at that time the 1^st Defendant was holding in his right hand a black handbag which P.W.1 identified as being hers. Meanwhile PC 53962 subdued the other man, who was the 2^nd Defendant. Upon being cautioned, the 2^nd Defendant denied any involvement. He said that he had seen the 1^st Defendant hit a woman for no reason. He became frightened and upon being told by the 1^st Defendant to run away he did so. This statement was admitted.

3. Subsequently, P.W.1 attended an identification parade where she identified the 2^nd Defendant as one of the two men who had robbed her. She also identified another person who she said was the other robber. Although the 1^st Defendant was on the parade it was not he whom P.W.1 identified. She knew that she had made a mistake but told no one about it.

Both of the Defendants gave evidence at the trial within a trial on the admissibility of their statements. Having ruled those statements inadmissible, it is unfortunate that the Judge below went on to consider the evidence given at that stage when he finally came to deliberate upon the general issue. In his Reasons for Verdict he mentions the evidence of the 1^st Defendant given on the special issue on two occasions. First, at page 17/18 he records that the 1^st Defendant said that “at the material time he was playing with D2 and they were running in Yan Ping Road.” He therefore concluded that the 1^st Defendant had admitted that he had been with the 2^nd Defendant at the material time. It is to be remembered that the Judge below was dealing with the guilt or innocence of both Defendants and it would appear that he may have been considering that part of the evidence as being relevant to the 1^st Defendant alone. Even on that basis he was wrong to take that evidence into account but, secondly, at page 19 he turned to list the evidence against the 2^nd Defendant in which included as (iv), “D1’s evidence in court on the special issue.” At page 21 he again mentions the evidence of the 1^st Defendant on the special issue that he and the 2^nd Defendant were playing and running in Yan Ping Road.

4. The decision of  the Privy Council on appeal from this Court in R. v. Wong Kam Ming (1980) AC 247 is that evidence given on a trial within a trial in relation to the voluntariness of a statement is not admissible on the general issue whether the statement is ruled admissible or inadmissible. If the statement is ruled admissible a different situation arises where the Defendant gives evidence on the general issue for example on the reliability of the statement but that does not arise here. The Judge was therefore wrong to take into account against the 2^nd Defendant the evidence given by the 1^st Defendant during the trial within a trial. The 1^st Defendant did not give evidence on the general issue. It would appear, however, that the only part of such evidence the Judge did take into account was that the two Defendants had been present together. That is something which the 2^nd Defendant himself admitted when he was apprehended and in his evidence on the general issue.

5. It was therefore common ground that the 1^st and 2^nd Defendants were running together and were apprehended together. It was not disputed that P.W.1 had been robbed of her handbag and that it had been recovered when the two Defendants were apprehended. Nor was it disputed by the 2^nd Defendant that at the time of the arrest the 1^st Defendant was still holding the handbag of P.W.1. There were two things in dispute. The first was that in his evidence on the general issue the 2nd Defendant said that at the time he and the 1^st Defendant were with another man identified simply as Ah Wah. He had never told anybody about this before he came to give his evidence. The Judge below was entitled to reject this evidence as he did and to find that P.W.1 had been robbed by two men whom she chased and who were apprehended, one of them holding her handbag at the time. The second dispute was as to the identification of the 2^nd Defendant by P.W.1 The fact that she had made a mistake about the identification of the 1^st Defendant and, realising the mistake, had failed to correct it does her no credit. The Judge below, however, carefully considered her evidence and , in the circumstances, accepted it.

6. The circumstances were that P.W.1 was robbed by two men, one of whom held her form behind and the other of whom assaulted her and took her handbag. These two men were chased by her and others and upon apprehension the 1^st Defendant had the handbag in his hand. The 2^nd Defendant not only ran with him but admitted being present at the assault. Notwithstanding the criticisms that may be levelled at the Judge on the question of the admissibility of the 1^st Defendant’s evidence given on the special issue and notwithstanding the criticisms that may be levelled at the identification evidence of P.W.1, the circumstantial evidence was overlwhelming and leave to appeal is therefore refuse.