The Queen v. Wu Tung-lam and Another

CACC001367/1983

[Inadvisable for trial judge to see Counsel in Chambers in the course of the summing-up without a court reporter being present.]

IN THE COURT OF APPEAL

BETWEEN

Coram: Li & Silke, JJ.A. & Power, J.

Date: 26th April 1984

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JUDGMENT

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Silke, J. A.:

1. The applicant was indicted for the offence of robbery together with another accused, LAW Yan-shing. After trial he was convicted. He now seeks leave to appeal against that conviction.

2. At the commencement of the trial, the 2nd defendant, LAW, pleaded guilty and he then gave evidence on  behalf of the Crown.

3. The robbery took place on the 20th July 1982 at the Woo Leung Lee Goldsmith. It was the Crown's case that the applicant was the inside man, having been employed by the shop shortly before the robbery and having left shortly after it. How shortly after it was in some dispute but nothing turns on that.

4. The 2nd defendant, LAW, in his evidence admitted his complicity in the robbery and gave details of how it came about. He was recruited into the scheme by one Ah Yiu. There was that which turned out to be a trial run when an attempted robbery was aborted. There were several subsequent meetings at which the applicant was present - at the Kam Lung Restaurant at Kimberley New Street and finally in Western.

5. On the 20th July, after the applicant had given LAW information as to the layout and the employees in the goldsmith shop, armed men burst in. The applicant was on the premises at the time and at the front door with one of the employees. All persons in the premises were tied up. The men were gagged. Knives were carried by the robbers. Threats were issued by them. The applicant was placed in the workshop as opposed to the other area of the premises in which the rest of the staff were kept. The accounts office was broken into. Some cash, a substantial quantity of jewelry, diamonds, gold ornaments and documents were taken. LAW, upon arrest, assisted in the recovery of some of those items.

6. It was further LAW's evidence that the applicant assisted in the sale of some of the gold and in the cleaning and then packing in bags of some of the diamonds taken in the robbery.

7. The Crown also called WU Kam-chuen - a person who  had admitted grudge against the applicant - who said that he was told by the applicant of the intention to rob and warned after the robbery not to inform. The girl friend of LAW was also called in relation to the diamond cleaning and packaging episode at which she was present.

8. The defence was a denial of any involvement in a robbery. That, while the applicant had attended one or two of the meetings, his attendance was an innocent attempt to get employment for other persons. He admitted that he participated in the diamond cleaning episode but under threat. Many threats were made to him not to disclose LAW's part in the robbery and he said he was paid $5,000 for his silence.

9. There was a full, concise and adequate warning by the trial judge in relation to corroboration and as to the dangers of accomplice evidence. No issue is taken in respect of that. Mr. Sanguinetti, who appears for the applicant in this Court, accepts that that portion of the summing-up was impeccable.

10. The issue clearly was whether or not the jury were prepared to believe the accomplice evidence. If they did there was abundant evidence of the applicant's involvement in this robbery.

11. The sole ground of appeal which has been argued before us is that the conviction is unsafe and unsatisfactory. In relation to that there were twelve particulars set out, one of which - (J) - was abandoned at hearing. The first three particulars are interwoven and they relate to a passage at page 23 of the summing-up. The judge was interrupted by the foreman who put a question to him. With considerable patience the trial judge answered it at that time.

12. I should interpolate here that there had, earlier in the summing-up, been reference to statements admitted under section 65B and facts admitted under section 65C of the Criminal Procedure Ordinance.

13. The question of the foreman of the jury was:

"Is it, when you talk about admitted facts in this case, is it an admitted fact that the defendant's telephone number was changed?"

14. Some three Paragraphs earlier the attention of the jury had been directed to the applicant's evidence that, because of the threats which he was receiving, he had arranged with the telephone company for his number to be changed. At a later stage the attention of the jury was directed by the trial judge to similar evidence given by the applicant's wife.

15. The answer given by the judge to the foreman's question was:

"There has been no evidence as to that, and I shall be directing you in due course that you can't speculate as to that at all. We have not heard evidence that the number was changed. You may think that it would be unlikely that the defendant would be prepared to give a statement like this to the police and to this Court if it could be checked out but you can't really speculate on the matter. There has been no evidence as to whether, in fact, the number was changed, so that's as far as you can go on."

16. Mr. Sanguinetti had submitted that there was a misdirection in fact when the judge used the phrase "There has been no evidence as to that". But, quite clearly, the judge was talking of an admitted fact or of independent evidence - independent, that is, from the evidence to which he had drawn the attention of the jury. That is implicit in the paragraph which I have just quoted. There was a reference, a very fair reference, to its being unlikely that the applicant would put up a story of this kind which could easily be checked if it were not true.

17. It has also been advanced that the judge should have informed the jury that this evidence - that is the change of telephone number - was in fact unchallenged insofar as the Crown had not cross-examined directly upon it. But, as we understand it, the matter was never disputed either in evidence or in submissions. We do not thick that the jury could have been under any misapprehension whatsoever as to the fact that there was evidence from the applicant and his wife on the issue and that it was entirely a matter for them as to whether they believed that evidence or not.

18. The next particular is something which can never be a particular of unsafe and unsatisfactory at all. It states that the conviction of the applicant was only founded on a bare majority jury, verdict of 5 to 2. A verdict is a verdict.

19. We appreciate the point, which I think Mr. Sanguinetti to be really making on this, that we should look with greater care at the general record and at the summing-up in view of the fact that this was a bare majority verdict based on accomplice evidence.

20. The next grounds (E) and (F) relate to matters stated to be hearsay given in evidence by LAW Yan-shing. It is correct that, in the course of argument at one point, the judge had said that  he would give a direction in relation to this at a later stage which direction he did not give. But we again do not think that any possible harm could have come from its lack.

21. In the passages referred to us two at least related directly to the manner in which LAW was drawn into the robbery and was evidence of that which was said to him by other persons. The third passage related directly back to questions asked and the answers which had been given immediately prior to its coming into being.

22. It would have been preferable had the judge told the jury that the Crown were not producing this evidence as evidence of the truth of that which was said but merely that it was said. But, that having been said, we would have, had it been necessary, been prepared to apply the proviso in the context of the overall evidence of LAW and the manner in which the disputed portions came before the jury.

23. Particulars (G), (H)(i) and (H)(ii) do not need comment. Save to say this: that which has been brought to our attention and which it is submitted shows the three witnesses concerned, that is LAW, WU Kam-chuen and AU YEUNG Chiu-kuen, to be witnesses not of the truth, does not go anywhere near to substantiating the submission.

24. Particular (I) relates to an alleged non-direction by the trial judge as to the plea of guilty by LAW. We accept that in the ordinary course when two accused are tried together and one pleads guilty - and the jury are aware of that - then the jury should be directed that the plea of guilty is in no way indicative of the guilt of the accused who is tried. But in this case LAW came into the witness box, gave evidence of his commission of the robbery and gave full details of how the robbery had taken place. A direction of that kind was unnecessary and, in these circumstances, undesirable. It would simply have served to confuse the jury.

25. The last particular relates to a non-direction by the trial judge of an explanation which the applicant was said to have given of something appearing in an extra judicial statement. The judge did refer to the bare evidence of that which was said in a statement and that which was said by the applicant in explanation. He did not go into any greater detail. We think that if he had done so, the explanation being a very clumsy one, it would not have been of any assistance at all to the applicant. It might well have been adverse to him.

26. There is no substance in the ground advance in this application.

27. There is however one matter to which we think we should make reference though no argument has been addressed to us on it. It is this: it would appear that when the trial judge had almost concluded his summing-up and before the jury were placed in charge of the usher Counsel then appearing for Crown. informed the Court that there was something that both he and Counsel then appearing for the defence would like to mention and he further suggested that they see the judge in Chambers for a few moments before the usher was sworn.

28. This took place. There was no court reporter present and we have no record of that which transpired. We do not suggest that there was anything improper in this instance in that which took place in Chambers but it is an inadvisable practice for Counsel to see the judge in Chambers in the course of the summing-up without a full transcript being available of that which transpired.

29. In the event, the application for leave to appeal against conviction is refused.

30. Sentence: The applicant also seeks leave to appeal against the sentence passed upon him of nine years. This was, if anything, on  the light side given the extent of his participation in and the nature of the robbery.

31. The application in respect of sentence is also refused.

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32. LAW (D2) seeks leave to appeal against his sentence of seven years' imprisonment. He is aged about 33, unmarried with parents in Hong Kong whom he tells us need his financial assistance and also reed him to look after them. He has an elder brother and an elder sister, both married, in Hong Kong.

33. The trial judge in passing the sentence he did took into consideration the fact that the applicant had pleaded guilty, which is indicative of remorse, and that he was cooperative in the sense that he gave full and frank evidence at D1's trial on behalf of Crown. LAW was of course a knife carrier and a threatener in the course of the robbery.

34. The trial judge has given a discount of three years for the circumstances of the plea and the giving of evidence for he had given D1 nine years' imprisonment. We think that discount to have been a proper one in the circumstances off this case. The sentence is well below the level that a crime of this nature would attract. We see nothing wrong in it.

35. The application of the 2nd defendant; LAW, in relation to sentence is also refused.

Representation:

A.J.J. Sanguinetti, Esq. and K.B. Ng, Esq. instructed by Messrs. Arthur Au & Co. for WU Tung-lam.

LAW Yan-shing in person.

M. Hartmann Esq. for Crown/Respondent.