R. v. KWAN KAM CHEUNG

IN THE COURT OF APPEAL

1996, No. 22
(Criminal)

-------------------------------

----------------------

J U D G M E N T

----------------------

Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his convictions for possession of an offensive weapon, three counts of robbery and one count of assaulting a police officer with intent to resist arrest.

2. It was the prosecution case that in the early hours of the morning of 31 March 1995 police officers on duty at Public Square Street, Yaumatei observed the applicant behaving in what they regarded as being a suspicious manner. They went over to him and he started running away. He was pursued by the officers and during the pursuit he threw away an object which was later retrieved and found to be a folding knife. The officers succeeded in apprehending the applicant. They only did so after a struggle which was the subject matter of the 6th charge. After the officers subdued the applicant he told one of them after being cautioned that as he had no money to pay a fine he had taken a knife to rob.

3. The applicant was taken back to the police station where he made cautioned statements implicating him in four taxi robberies. Three of these robberies had been reported to the police.

4. Two of the taxi drivers had been unable to identify the applicant but a third one was able to do so.

5. The main ground of appeal against the conviction advanced by Mr Poll on behalf of the applicant was that it was not clear from the Reasons of Verdict given by His Honour Judge Kilgour that he had been satisfied beyond a reasonable doubt that the statements made by the applicant had been made freely and voluntarily.

6. If the reasons are read as a whole this ground cannot be sustained. It is clear from what the judge said that he was fully conversant with the heavy burden imposed upon the prosecution of proving beyond a reasonable doubt that the statements were free and voluntary. The fact that he referred to being satisfied that there had been no oppression does not indicate that he was labouring under any illusion on this score. So far as the first ground of appeal is concerned it is clear that the judge did not simply place reliance upon being satisfied that the truth of the statement confirmed their voluntary nature. He considered all of the evidence carefully including the fact that the applicant had written the statements in his own handwriting.

7. We did not see merit in the contention that the judge unnecessarily and unfairly dealt with the possibility that the contents of the statements had been fabricated. It must have been the case that an allegation had been made by the applicant that the police had fabricated the said evidence. Accordingly it was appropriate for the judge to refer to the evidence of one of the taxi drivers that the threat of a bottle had been used in one of the robberies and that a similar statement had been made by the applicant in one of his cautioned statements.

8. The third ground of appeal is that the judge treated the statements as being corroboration of the evidence given by the taxi drivers who had been unable to identify the applicant. Although perhaps the judge did not express himself in a felicitous manner when he used the word "corroboration" the evidence given by the taxi drivers did give support to what was said in the statements.

9. There was abundant evidence before the judge enabling him to be satisfied at the appropriate level of the guilt of this applicant. The convictions are neither unsafe or unsatisfactory and the application is dismissed.