R. v. LO CHUN TAT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.MA862 of 1996

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J U D G M E N T

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1. This is an appeal against conviction. The appellant was convicted of a robbery which took place on 30th July 1995, and it was said that he, together with someone called Lam Cheun Keung, robbed a boy aged 6 of $100. He was convicted by the magistrate on 22nd May 1996 and sentenced on 12th June to a training centre.

2. The victim was aged 6 years at the material time. On 30th July after lunch he went on a shopping errand, and on his way, he was followed by two men. They covered his eyes with their hands and he was punched, and they took his $100. He described one of them as having no clothing, by which I assume him to have meant no top; and he said in evidence that one of the men had dragon tattoos on his arms, his back and his chest. He later attended an identification parade, in which this appellant was involved, but recognised no one. The police had apprehended three men in connection which this robbery - this appellant and two others, and at the identification parade the victim told the police that it was two, not three, people who had robbed him.

3. The following day, that is, 31st July 1996, this appellant and the two other men were arrested. The police evidence, which is all important to this appeal was that they were on patrol in the area when they saw three men whose features were similar to those of the men wanted for this robbery. They were stopped and searched. This appellant had a dragon tattoo on his left arm. Lam, who was the 2nd defendant at trial, also had dragon tattoos on his body. An officer questioned the appellant, and when, according to the police evidence, he was asked whether he knew that there had been a robbery in Cheung Sha Wan the day before, the appellant is alleged to have said that he was involved in it. He was arrested and cautioned and said that he and the 2nd defendant robbed the boy of $100 and asked the police not to tell his family. $17, said to be the remnants of the stolen money, were seized. The appellant was taken back to the police station and interviewed.

4. It was suggested in cross-examination that the defendant was threatened that his home would be searched, and that is why he gave the suggested reply. It was also suggested that he was pushed against a wall by a number of officers and taken to a nearby toilet. And further, that when he went to the police station where a cautioned statement was taken from him, he was the worse for drink.

5. In the statement, the appellant is alleged to have said that he snatched the $100 whilst the other defendant, the 2nd defendant, grabbed the boy from behind. He and the 2nd defendant had on the day of their arrest met Fei On, whose real name is Chiu Sai On, at a restaurant, and the money was spent on a meal for the three of them. The appellant was asked, according to the Record of Interview, whether Chiu Sai On was aware that the robbery had been committed and the appellant was said to have replied that he had mentioned to Chiu that he, the appellant, had snatched the $100. He said that at the time of the robbery, he, the appellant, had been wearing a T-shirt and shorts. Chiu was not charged with this offence.

6. Evidence was then given by an officer PC 47429. He was one of the officers who had intercepted the three men the day after the robbery. He was the one who dealt with the 2nd defendant, Lam. His evidence was very similar to that of the other officer who had arrested the appellant. After a few questions, the 2nd defendant said : "Ah Sir, I know what you are asking, but please give me a chance ..." and he went on to say that he, the 2nd defendant, had been with another person at around 12:30 in Cheung Sha Wan Estate and snatched $100. He then pointed at the third person, namely, Chiu Sai On, implying no doubt that Chiu Sai On was the person who had committed the robbery with him. The 2nd defendant was arrested and said that he had committed the offence out of momentary greediness. He was taken back to the police station where he made a statement. In his statement, or rather in the answers he gave in an interview which was recorded and signed by him, he said that he and Fei On had robbed the boy. Fei On was said to be Chiu Sai On. There was no suggestion that the other robber was this appellant. The 2nd defendant said that he, the 2nd defendant, was naked at the time of the offence to the extent that he was not wearing a top. This officer said that he did not tell the officer who arrested the appellant that the 2nd defendant had said that it was Chiu Sai On who was the other culprit. It was put to this officer in cross-examination that the 2nd defendant was assaulted before he signed the Record of Interview, and indeed that he had been assaulted at the scene of arrest.

7. The appellant had challenged the admissibility of admissions allegedly made by him. Written grounds of objection were that he had been pushed at the time of his arrest, that a search of his home had been threatened and that he was drunk when the cautioned statement was taken. He gave evidence in relation to the admissibility issue. He said that at the scene of his arrest, he was manhandled, and then taken to the police station. He was told by the police that if he denied it, he would be charged with handling a gun. The appellant said that he tried to deny the offence and the accusation, but he was threatened with assault and with a charge of handling a gun. He was then asked if he had anything else to say in evidence, and he said that he was asked many leading questions during the so-called interview. Nothing was said by him in examination or cross-examination during the voire dire about him being the worse for drink.

8. The 2nd defendant also gave evidence on the voire dire and said that he was assaulted at the police station and before he was taken there as well; and that the officer had told him that Chiu Sai On had admitted the offence. He also gave evidence to the effect that an officer came to talk to the statement taking officer and said that it could not be Chiu Sai on, because his height was different; it was more likely to be this appellant.

9. The magistrate then determined that the statements were voluntarily made, and they were accordingly admitted as evidence on the general issue.

10. The defendants then gave evidence on the general issue. Their defence was an alibi. This appellant said that on 30th July he played video games at a video centre from 11 am to 2 pm in Castle Peak Road. He was there with the 2nd defendant and others. Then they went to the 2nd defendant's place to play mahjong and stayed there until about noon the following day, that is 31st July. He said that none of the 2nd defendant's family members returned at all whilst he, the appellant, was there. He said that the 2nd defendant's father did not stay the night. They stayed, as I say, at the 2nd defendant's house and then went to the house with Ah Wan. They went there, he said, to play cards and drink at about mid-day. They went there, he said, to play cards and drink alcohol. They stayed there and left his house in the evening, and not long after were apprehended by the police. I note that in cross-examination, this appellant said that when he learnt from the police about the time at which this robbery took place, he merely told them that some days before he had returned from Beijing; an odd thing to do if he knew then that he had an alibi about his comings and goings only the very day before.

11. A Defence witness was called to substantiate the alibi. He was allegedly with the defendants during the 30th and 31st July. Importantly, his evidence diverged from that of this appellant in that he said that whilst he was at the 2nd defendant's home, the 2nd defendant's father returned there.

12. Then the 2nd defendant gave evidence. He too had not offered his alibi defence to the investigating officers; he said that he had no chance to do so.

13. The magistrate then convicted both defendants.

14. In his Reasons for Verdict, the magistrate summarised the evidence accurately. As for the admissibility issue, this appellant had given evidence about threats to charge him with an offence to do with a gun (an allegation not in the grounds of objection) and gave no evidence about a threat to search his home, or about being drunk, (although it is fair to say that no question was asked of him in direct terms about his condition at the material time). The magistrate noted these omission and obviously placed some importance on it. He said that he was satisfied that the officer was telling the truth. He noted that as far as the alibi was concerned, there were conflicts in the evidence of all three Defence witnesses, and he did not believe that they were where they said they had been. He accepted that the appellant's admission was voluntary and was true.

15. In such circumstances as described, there seems, on the face of things, scant room for a successful appeal. However, when this matter came before me on 23rd August, this appellant asserted not only that he had not committed this offence but that he was able to say who had. He provided a name, Chan Yin Kwai. Chan had apparently, according to the appellant, confessed to a friend of the appellant, one Lee Ming Yeung. That confession had been made at about Chinese New Year 1996, which begs the question why the contention had not been made before. The appellant said that he told the duty lawyer who represented him before the magistrate, but to no avail, although he conceded that he had not given the names to that lawyer.

16. I was not prepared to dispose of this appeal in a manner adverse to the appellant without first causing some inquiries to be made about the information which the appellant had supplied, not least because he had been so specific about the identity of the person who had revealed the information, and about the person who had allegedly confessed his involvement to that person. I caused inquiries to be made about this. The appellant was at that stage without the benefit of legal representation, so I caused the matter to be drawn to the attention of the Director of Public Prosecutions; and also obtained the appellant's permission to ask the duty lawyer whether he recalled being told by the appellant about these matters when the matter came on for hearing at the Magistrate's Court. The barrister concerned helpfully replied, saying that although he took detailed instructions and had a six page note of those instructions, those notes do not contain any information along the lines suggested by the appellant, nor has he any recollection of such a disclosure by the appellant.

17. The matter came back before me on 9th September. Counsel for the Crown said that the police had tried to contact the man Lee, but could not trace him; his mother said that he left the home more than half a year ago. No person by the name Chan Yin Kwai could be located with the information which the appellant had supplied.

18. In preparing for the adjourned hearing, I re-read the transcript of the proceedings before the magistrate, this time having in mind the appellant's contention that another had confessed to the crime. In the course of this exercise, I noted the references to the 2nd defendant pointing to Chiu Sai On, and not to the appellant, as his accomplice, a matter which at that stage I thought notable. I could no longer, it seemed to me, conduct inquiries on behalf of the appellant about Chan, nor pursue investigations about what had happened with Chiu Sai On, and whether the police had investigated that allegation, and, if so, with what result. It seemed to me in the circumstances desirable that the appellant should be represented. Accordingly, I drew to the attention of the Direction of Legal Aid the history of the matter, and the Director most helpfully, and at very short notice, agreed to represent the appellant to inquire about the matters which I had drawn to her attention.

19. Yesterday, I had the advantage of hearing from Mr Stirling, who was instructed by the Director of Legal Aid on the appellant's behalf. It is apparent from what he told me that thorough inquires have been made to investigate the matters which had been raised by his client, and the result is that no application was made to call fresh evidence. There is no question, either, of Lam coming to give evidence to support the appellant, because Lam still says he, Lam, was not involved at all. As for the matter of Lam pointing at Chiu Sai On, Lam, as I say, contends he was not party to any robbery. I am told that Chiu Sai On's statement to the police was exculpatory. In that regard, it is to be commented that had the police been minded to fabricate a story, they might have been expected to avoid a complication in their evidence, namely, the suggestion that Lam pointed to Chiu as the other culprit. I have also been told that Chiu's statement would support the Crown's case, if it were admissible. His evidence, according to Mr Stirling, would be of no use to this appellant. Nor was Mr Stirling in a position to advance any grounds of appeal. In these circumstances, the Director of Legal Aid discharged the Legal Aid certificate. I am most grateful to the Director and to Mr Stirling for the trouble they have taken on the appellant's behalf, and at my request.

20. The magistrate convicted after hearing the evidence that Lam pointed to Chiu Sai On as the other culprit, and no doubt had it in mind. I note too, as regard the question of someone else having committed the offence, that the lawyer who represented this appellant had no note of the appellant telling him about the other culprit; (the other culprit, be it noted, is said to be someone other than Lam and Chiu Sai On). This would be a very surprising omission if indeed the appellant had made these contentions to those representing him.

21. The appellant, yesterday, the Legal Aid certificate having been discharged, asked for some time to prepare arguments on his own behalf. I allowed him until this afternoon to do so. Today he advances to me the suggestion that he was not identified by the victim of this offence, that there were discrepancies in his (the victim's) witness statement; and he made comments about the statements made by all three men apprehended by the police. He should understand - although I do not say this by way of criticism since he is unrepresented now - that appeals to these courts from magistrate proceedings are not by way of re-hearing. It is not for me to determine who is and who is not telling the truth. The magistrate had the advantage of seeing the witnesses. I do not. The magistrate, it so happened, believed the evidence of the police officers, and in the circumstances, he was entitled to come to the conclusions that he did. The allegations which the appellant has made to me about somebody else being culpable, have been investigated as thoroughly as they could possibly be, and have been investigated by people acting on his own behalf. They have obviously taken the view that there is no basis upon which to produce any further evidence before this court.

22. In the circumstances, there are no grounds which move me to say that this conviction was unsafe or unsatisfactory. Accordingly, the appeal is dismissed.