R. v. CHAN TUNG MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1064 OF 1995

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J U D G M E N T

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1. This was an appeal against convictions for attempted theft and going equipped for stealing. At the end of the hearing, I ruled that the appeals would be dismissed and that I would give my reasons later which I now do.

2. The appellant was one of two men kept under surveillance by police officers in the Jockey Club Betting Centre in Argyle Street, Kowloon, on 3rd December 1994. The police officers saw the two men acting somewhat suspiciously before they concentrated their attention on one man who had a leather rucksack on his bag. The police officers saw the appellant and his companion attempt to open the bag and steal therefrom. On both occasions, they were thwarted by the victim unwittingly making movements which prevented the theft. The police officers followed the appellant and his companion out of the Betting Centre, not wishing to arrest them in such crowded and potentially troublesome circumstances, and questioned them about their movements. The appellant was searched and in the front right pocket of his windbreaker was found a matchbox which contained a razor blade. When asked what he was doing with the razor blade, the appellant replied "Ah Sir, give me a chance. I want to earn a living with it." He later said that the razor blade was used to slit people's handbags, but he hadn't used it on this occasion.

3. There were four grounds of appeal. I need only deal with two.

4. Mr Grounds, for the appellant, argued that the learned magistrate had not properly evaluated the evidence in a case where there was no complainant, and no stolen property had been produced. For instance, he complained, the description of the bag from which it was alleged the appellant had tried to steal had varied between a rucksack, a handbag and a back pack, and that this was an indication of the uncertainties which had crept into the police officer's evidence.

5. I was satisfied however that despite the looseness of the language used to name this bag, there had been a detailed physical description of the bag by the police officer and the appellant could have been in no doubt whatsoever that the allegation related to his attempt to steal from a rucksack which the unknown victim had on his back across both shoulders. I was satisfied that the learned magistrate had properly evaluated all of the evidence.

6. Mr Grounds also complained that the magistrate had made an error in law in relation to the cautioning of the appellant by the police officers. Having witnessed the attempted theft by the appellant and his companion from the unknown victim, the officers then had sufficient evidence upon which they could have arrested the appellant. When they did apprehend the appellant and his companion, and before cautioning them, they searched them and asked them questions. It was in reply to these questions that the 2nd defendant made the admissions regarding the razor blade. In relation to that matter the learned magistrate said this :

" In his final address Mr Cosgrove submitted that the admissions allegedly made should not be taken into account. I understood him to be relying on the agreed fact that no caution had been administered to the appellant even though the witness had seen an act of attempted theft. As to this I was of the opinion that the witness could be excused making an arrest until the appellant had been given an opportunity to explain his actions in case there was an innocent explanation therefore.

I agreed that in accordance with police practice directions and the Judges Rules the appellant might have been cautioned once he had admitted that the razor blade was 'used to slit people's handbags'. Such directions and rules, however, are only guidelines. As has been held, what is of paramount importance is whether the appellant spoke voluntarily and without oppression by a person in authority. I had nothing before me to suggest that the appellants had not made the admissions freely and voluntarily, if made at all, and found that the questioning was fair in all the circumstances."

7. This was a proper statement of the law by the learned magistrate and he was, on the basis of the admissions, together with the eye witness evidence, entitled to conclude beyond reasonable doubt that the appellant had been trying to steal from the victim's bag, and that the razor blade he carried was his tool for theft.

8. All in all, I was satisfied that I should not interfere with these convictions and so I dismissed the appeal.