R. v. TO CHI HANG

IN THE COURT OF APPEAL

1995, No. 368
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This applicant was one of two young men charged with the robbery of a taxi driver along Tai Hang Road on March 28 last year. They were tried before HH Judge Lugar-Mawson in the District Court. On April 7 this year, the applicant was convicted while the other man was acquitted. Reports were obtained. Sentence was passed on April 28 this year. The applicant was sent to prison for 4½ years. He now seeks leave to appeal against conviction and sentence. We are at the moment dealing with conviction.

2. What had happened was that in the small hours in the morning of March 28 last year, along Tai Hang Road, a taxi driver was robbed by two young men at knife point. They relieved him of something in the region of $1,000 in cash. Upon the robbers alighting from the taxi and fleeing on foot, the taxi driver gave chase in his taxi until the robbers disappeared down a dark alley where the taxi could not follow.

3. The taxi driver then drove to a nearby police road block along Tai Hang Road, and reported the robbery.

4. The applicant, then aged 19, was apprehended by two police constables in the lane off Tai Hang Road about 20 minutes after the robbery. According to the constables, the applicant told them, or one of them, that he had just robbed a taxi driver along Tai Hang Road using a knife. And then, according to the constables, he led them to a nearby water tank where a knife and about $1,000 in cash were found.

5. The judge did not accept the constables' evidence of a verbal admission but accepted their evidence as to the applicant leading them to find the knife and about $1,000 in cash.

6. Since the taxi driver did not identify the applicant and there was no fingerprint or other scientific evidence, the only evidence against the applicant was the constables' evidence as to his leading them to find a knife and the cash.

7. The judge took the view that, having regard to the time when and the place where that happened, the only reasonable inference was that the applicant was one of the robbers. So he convicted him.

8. Now, in rejecting the constables' evidence as to what the applicant had told them, the judge said that he could not be sure that the applicant had not been " what is colloquial known as 'verballed'".

9. It seems to us unrealistic to think that a robber would silently lead the police to the weapon which he used and the property which he had taken. Either he would admit his guilt and do that or he would not do it at all. The whole transaction of which the constables spoke (i.e. the admission and the leading) was all of one piece. If the constables' evidence was not accepted as to the former - and we are confronted with the fact that the judge who received the evidence at first hand refused to accept the same - it is difficult to see how their evidence as to the latter could be accepted as he accepted it.

10. In our view, this conviction is neither safe nor satisfactory.

11. There is no need to consider the operation of the Privy Council's decision in Lam Chi-ming v. R [1991] 2 AC 212 where their Lordships pointed out at p. 222 B - C that "it is surely just as reprehensible to use improper means to force a man to give information that will reveal that he has knowledge that will ensure his conviction as it is to force him to make a full confession". In the present case, there was no question of the applicant being forced to make a confession. The question was whether he had made the alleged confession at all. The applicant succeeds without having to rely on Lam Chi-ming v. R. (supra).

12. We might mention that Mr Saw who appears for the prosecution has, with his customary realism , recognised that this conviction is not one which we can possibly uphold. Treating the application for leave as the appeal itself, we allow it so as to quash the conviction and set aside the sentence.