THE QUEEN v. SZETO YUEN-ON AND ANOTHER

IN THE DISTRICT COURT OF HONG KONG

CRIMINAL JURISDICTION

CASE No. 72 OF 1989

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    Going equipped - any article - possession of a chopper - whether article includes a chopper.

    Rebuttal evidence - prosecution informed of and shown certain receipts likely to be produced - whether prosecution should deal with that evidence before their production - receipts not in issue until produced - rebuttal evidence allowed.

    The defendant was found in possession of a chopper in Observatory Road in the middle of the night. He was arrested and charged with the offence of going equipped. Further investigation revealed he had committed a robbery earlier. A gold neck-lace and pendant identified by the victim as her property was claimed by the defendant to be his by the production of two receipts. Crown applied for leave to call rebuttal evidence. Defence objected on the ground that the Crown had not been taken by surprise.

Held : 1)     A chopper was not an article for use in the course of or in connexion with burglary, theft or cheat;

2)       Rebuttal evidence allowed when the evidence prosecution sought to rebut was introduced in Defence's case though prosecution had knowledge that such evidence was likely to be introduced.

IN THE DISTRICT COURT OF HONG KONG

CRIMINAL JURISDICTION

CASE NO. 72 OF 1989

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J U D G M E N T

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1. The two defendants in this case were seen in Observatory Road in the early hours of the morning of the 13th December 1988 following a woman into Kimberley Road by a sergeant and a constable who happened to be standing. Outside the Seven-Eleven Shop in Observatory Road. When they re-emerged to Observatory Road later the two police officers went up to stop them and searched them. A. chopper was found inside the jacket of D1 While the search went on, the defendants pushed away the police and ran but were caught and subdued after a struggle. They were then brought back to Tsimshatsui Police Station.

2. After a series of interrogations and investigations the defendants were charged with the following offences:-

             (1)    Against the defendants jointly :-

(i)    going equipped for stealing and

(ii)    robbery.

             (2)    Against each of the defendants resisting a police officer in the execution of his duty.

3. The charges of going equipped and resisting arrest arose out of what happened in Observatory Road while the robbery charge came to light after they were taken into police station and as a result of investigation into other reported crimes.

4. The evidence against D2 in respect of the charges of going equipped for stealing and robbery were admissions in cautioned statements which I have ruled inadmissible and hence I ruled that there was no case to answer in respect of each of these tram charges.

5. As to the resisting arrest charges the sergeant who arrested one of the defendants gave evidence and said that he was very positive as to which of the defendants he struggled with. This contradicted with the evidence of the other police officers. In view of his every positive assertion I was left in doubt as to who arrested who and so both defendants were acquitted of the charge of resisting arrest.

6. As to the charge of going equipped against b1 the evidence was that he was in possession of the chopper at the time of his arrest.

7. Section 27(1) of the Theft Ordinance, Chapter 210 states, "Any person who, when not at his place of abode, has with him any article for use in. the course of or, in connexion with any burglary, theft or cheat shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 3 years." I am aware that an article can be anything, e.g. keys, wires, screwdrivers gloves and may be even credit cards which if adapted could be used to open doors in hotel rooms with computerised code lock. Thus the scope is very wide but there has to be limits. In my judgement a chopper is not an article for use in the course of or in connexion with burglary, theft or cheat. Hence I found him not guilty of this charge.

8. For the robbery charge the victim was a young girl. On the 13th December 1988 at about 0010 hours she was alone walking along the road outside Lai Chi Kok Park. She felt someone was following her. She looked back and saw man about ten metres away. She tried to walk faster but that man caught up and reached her. He exposed a chopper and then said robbery. She drew a sketch to show the shape of the chopper and said that it was a very new chopper and that the handle was made of metal.

9. He asked her to take out her purse. She took out the purse and took $100 out. He took it. He asked if she had a gold chain. She did not reply. He then pulled aside her collar and saw a neck-lace. The neck-lace had a gold pendant attached to it. He asked her to remove it. She removed it and he took it with the pendant and then ran away.

10. The whole incident lasted for about one to two minutes. She was face to face with that non. He stood facing the street light which vas quite bright. She could see his face because he spoke to her and was facing her

11. On the 23rd December 1988 she attended an identification parade and positively identified Dl. She also identified her neck-lace and the pendant which was with D1 at the time of the arrest.

12. D1 gave evidence and said that on the date of arrest he was a kitchen worker in a restaurant in Wanchai. On the 12th December 1988 be was in Yuen Long having his day off. He bought the chopper that day for his fellow kitchen worker. He, left Yuen Long with the chopper at about 0045 hours on the 13th December 1988 by public light bus to Jordan wad intending to go back to his quarters in Wanchai.

13. When he arrived at Jordan Road it was about 2 a.m. He paged D2 and met him at Lucky Plaza in Tsimshatsui After they met they intended to go to a lounge butthey were intercepted and arrested by police in Observatory Road after a chopper was found.

14. When he was intercepted the necklace and pendant were around his neck. He claimed that the gold necklace and the pendant were his and he produced receipts allegedly to be the receipts in respect of the necklace and pendant.

15. No other witnesses were called by the Defence.

16. The Crown applied for leave to call rebuttal evidence. This was hotly contested by the Defence. Mr. Souyave for D1 submitted that prior to the close of the Crown's case he already had informed and shown the prosecution copies of the receipts. If there was evidence in respect of the receipts it should be part of the Crown's case. He further submitted that the prosecution knew of his case when he put to the victim that the chain and pendant were not hers, thus the prosecution was not taken by surprise.

17. Although Defence Counsel did put his case that the necklace and pendant did not beling to the victim, the receipts were not before the Court at that stage of the proceedings. The prosecution could not call evidence to "rebut" the receipts which were not before the Court although the prosecution had good reason to believe that they might be introduced during the Defence's case. The Defence was not bound to produce the receipts even though Counsel had shown them to the prosecution. Had the Defence Counsel seen fit not to produce the receipts as part of the defence then there was nothing which the prosecution need to rebut. The rebuttal evidence sought to be introduced was that the contents of the receipts did not refer to the necklace and the pendant produced. When the receipts were produced as part of the defence case they were at issue and the prosecution should be at liberty to take issue on the receipts. For those reasons leave was given for rebuttal evidence to be called.

18. A staff from Chow Sang Sang Goldsmith Shop at Taipo Branch was called to give rebuttal evidence. He said he recognised the hand-writing on the receipt in respect of the gold necklace as his. In the receipt it was recorded that the necklace weighed 3.66 maze, i.e. 0.366 teals and has a " " patern. He said that the weigh was recorded in the tag attached to the gold necklace and it would be weighed again against the receipt before the necklace would be sold. After the gold chain has been worn for some time it would not gain weight but might lose very little weight (about 0.01 maze) through wear. He looked and weighed with a steel yard. He brought along which he said was accurate, the necklace produced, and said that it was of a different pattern and that it weighed 4.09 maze He also inspected the pendant and said that it was from Chow Sang Sang Goldsmith Shop because he could recognise the insignia inlaid in the pendant. The receipt produced was from a gold smith shop other than Chow Sang Sang and it recorded that the weight was 0.92 maze He weighed the pendant and said it weighed 0.67 maze. I found him to be a truthful witness and I accept his evidence.

19. The victim had been vigorously cross-examined. She was unshaken and was very positive about the identification. I found her to be a truthful witness. There was no reason why she could not recognise the Defendant after all they were facing each other for a minute or two under a street light. It was not a fleeting glance. She positively identified the necklace and pendant as hers and in, evidence in chief before the necklace was weighed she said that the necklace weighed about 4 maze. She could also describe the chopper which was similar to the one found on the Defendant shortly after the robbery. I have absolutely no reason to doubt her evidence.

20. On the other hand I cannot accept the evidence of the Defendant. I cannot accept that he bought the chopper for his colleague. It should be the duty of the owner of the restaurant owner to provide its staff with working tools. Also I cannot accept his explanation as to why it was not wrapped in its original wrapping. If he were to buy it for his colleague why then he did not bring with him the receipt. He said he was on his way to his quarters, if that be the case why did he make a detour or arrival at Jordan Road at 2 o'clock in the morning. Further he lied to extricate himself on the necklace and pendant which were on him shortly after the robbery.

21. Having considered the evidence of the prosecution and the defence carefully I am left with no doubt that the Defendant had committed the robbery and he is found guilty and convicted as charged.