The Queen v. Cheng Shun Tit and Another

CACC001445/1983

Coram: Roberts, C. J., McMullin, V.P., & Li, J.A.

Date: 17 February 1984

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J U D G M E N T

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Roberts, C. J.:

Preliminary

1. This is a reference by the Governor dated 16th November, 1983. The terms of reference, which are identical in relation to both defendants, save for their names, read as follows -

"(High Court Case No. 40 of 1982 and Criminal Appeal No. 463 of 1982)

His Excellency the Governor has given approval for the above case to be referred to the Court of Appeal pursuant to his power in section 83P (1) (a) of the Criminal Procedure Ordinance, Cap.221.

The terms of reference are as follows -

'The case specified hereinabove is referred to the Court of Appeal pursuant to the provisions of section 83P (1) (a) of the Criminal Procedure Ordinance, Cap. 221 for the Court to consider the case as an appeal to the Court of Appeal by condemned prisoner CHEUNG Shun-tit (in one case and) LEE Koon-yuk (in the other case) including any grounds of appeal which may be filed by the said condemned prisoner and to decide whether to receive any further evidence as may be considered necessary and thereafter to decide whether or not the conviction of the condemned prisoner do stand, or be varied in any, and if so what, manner.' "

2. The defendants were charged on two counts. The first, of the murder of LAM Kai-yuen on 6th October, 1981, the second, of robbery of LAM Kai-yuen and CHAN Sau-kiu on the same date, the articles stolen consisting of two ladies' wrist-watches and $3,400 in cash.

No formal grounds of appeal

3. At the hearing of this reference, each defendant was represented separately by counsel, neither of whom found himself in a position to file any formal ground of appeal on behalf of his client.

4. However, Mr. Muscroft, who appeared on behalf of the first defendant, drew our attention, in case we thought that they were of sufficient importance to concern us, to two matters. Firstly, in relation to robbery charge, the judge, when directing the jury as to what the law requires before robbery is established, told the jury, perfectly properly, that 'robbery' consisted of stealing with the use, or the threat of the use, of force immediately before or at the time of the theft. He went on to say, however, that the word 'steal' was too well-known to require a definition.

5. Although in many circumstances it will be obvious to anyone that theft has occurred, as in this case, there are occasions on which the legal definition of 'theft' can be of importance. It is desirable, when defining 'robbery', that a judge should describe in simple terms to the jury what 'stealing' means in law. However, there can be no question but that if the judge had so directed the jury they would inevitably have concluded, as they did, that all the elements of robbery, including theft, had been proved.

6. Secondly, we were referred to passages in the summing-up in which the judge criticized the conduct of the defence, commenting that, where serious allegations were made by an accused through his counsel against police officers who had recorded statements made by the defendants, it was to be expected that the defendant himself would give evidence to substantiate them.

7. His comment was not intended to imply criticism of counsel, since it is apparent from the record that the latter, when asking these questions, had expected that his client would go into the witness box to substantiate them.

8. The judge observed that, in view of the absence of any evidence by the defendants to substantiate the allegations contained in the questions put by their counsel, the jury would have no difficulty in rejecting them. It would perhaps have been better if the judge had merely relied upon his observation, in another part of his summing up, that suggestions put to witness do not amount to evidence unless they are accepted by the witness to whom they are put. However, we cannot say that these passages caused us any real concern.

First defendant's grounds

9. There were a number of "home-made" grounds, which were submitted by the first defendant. The first of these was a challenge of the identification of him by Mrs. Lam, the wife of the dead man, and himself one of the two victims in the robbery charge. The defendant complained that the state of the light at the time when she saw him in the middle of the night was insufficient for her to be able to identify him.

10. This was a matter which was put before the jury, who must have been satisfied that her identification was correct. It is to be noted that Mrs. Lam had known the first defendant before, because he had visited her flat on previous occasions and that she picked him out at an identification parade, which was held a week after these two crimes were committed.

11. In his written grounds, the first defendant also argued that the judge, in directing the jury, conceded that there were dissimilarities between his signature which appeared on his statement and the one which he ordinarily used. This, again, was a matter which was put clearly before the jury by the judge in his summing-up.

12. This defendant also submitted that the trial judge had told the jury to consider the possibility that his injuries which were mentioned in the medical report prepared after his examination by a government doctor, were self-inflicted. This is, presumably, intended to be a reference to passages in the judge's ruling on the voir dire, which was held in relation to the confessions which were said to have been made by both defendants.

13. In this ruling, the judge considered the medical evidence with care and was satisfied that the statements were not obtained as a result of assaults, or threats of assaults, committed by any police officer.

Facts

14. As counsel for the defendants have undoubtedly done, we have considered the record with great care in view of the very serious nature of these charges. This was an extremely strong, indeed overwhelming, case. As this is a Governor's reference I feel that we should briefly recite the facts.

15. Mr. LAM Kai-yuen and his wife, CHAN Sau-kiu, lived in a flat on the 14th floor of Wai Chien Court, Wai King Street in Hung Hom. On the evening of 5th October, 1981, they went to bed, as usual, into different rooms. The husband was then aged 71 and his wife, Mrs. Lam, was aged 67. When they went to bed the iron grille and the main door of the flat were locked but not bolted, as were the doors of the two bedrooms. In the sitting-room near the entrance to the bedroom was a small statue of Christ. Beside it was an electric light, with a 5-watt bulb and a red cloth, which remained on all night.

16. About 1 o'clock in the morning Mrs. Lam was awakened by a cry from her husband's room, saying that he had been hit and stabbed. As she tried to get out of bed to go to her husband, a man came into her room, punched her on the shoulder and told her to lie down and not make any noise, "otherwise you will be like your husband, your fingers will be chopped off."

17. He left the bedroom, came back with adhesive tape and asked her whether she had any money. She told him that there was some in the drawer in the room. She was then tied up, so tightly that several months after the incident the marks of the cords could still be seen on her wrists. She later identified this man as the first defendant.

18. The two men who had carried out this robbery left the flat at about 2 a. m. that morning. She heard her husband crying for help but was unable to get to him because she had been tied up. She continued to make as much noise as she could until her cries were heard by a neighbour, who summoned the police. They arrived about 4.30 a.m. and took her husband by ambulance to hospital, where he was found to be dead on arrival.

19. On examination, a large number of bruises, cuts and wounds were found on Mr. Lam's body. One of the chop wounds had caused extensive damage to his wrist, from which he bled to death.

20. A bloodstained chopper was found in the sitting-room and a bloodstained beef knife in the sink.

21. Mrs. Lam discovered that she had been robbed of cash and two wrist-watches, one of which was a Rado wrist-watch.

22. Miss LAM Li Ching, known as "Maria", a daughter of the couple, had met both defendants at the ballroom where she worked as a dance hostess. She had taken both defendants to the flat twice and introduced them to her mother.

23. A few weeks before the attack, both defendants had taken Maria to a restaurant. While there, she discovered that she had left her keys behind and asked the first defendant to fetch them for her. He appears to have taken this opportunity to have copies made of the keys; and it was with these that the two defendants were able to enter the flat on the night of the murder.

24. When the first defendant was arrested on 7th October, 1981, fairly early in the morning, he made a statement to the police, in which he admitted having used a duplicate key to open the flat. He admitted that he had taken part in the robbery and that the deceased had resisted and had been chopped, though he blamed his accomplice for that.

25. Quite apart from this confession he was, as we have indicated before, identified by Mrs. Lam as one of the two men who committed the robbery, at an identification parade which took place a week later.

26. No evidence was given on the general issue by either defendant, though each did testify on the voir dire which was held.

27. The second defendant was also arrested on 7th October and make a long statement to the police, in which he admitted having broken into the flat and assaulted the deceased, though he did not admit that he himself had struck him with a knife or chopper.

28. In a later statement, when he was charged on 8th October, he again admitted taking part in the robbery and conceded that at the time he was carrying a knife, which he had left in the kitchen sink where it was found by the police. A significant piece of further evidence against him was that he was found to be in possession of one of the two watches stolen from the flat and identified by Mrs. Lam as belonging to her and as having been taken on the occasion of the murder.

29. The admissibility of the statements was strongly challenged and a long voir dire held on the question of their admissibility. The judge delivered a long ruling, in which he found that the Crown had discharged the burden that lay upon it of establishing that all the statements by both defendants were freely given. We can see no fault in his approach or his conclusions. Nor have we been able to find, after a careful examination of it, any fault of significance in the judge's summing-up.

30. Although it was not possible for the Crown to establish which defendant struck the blow which killed Mr. Lam, it was established that this was a joint enterprise, by the two defendants, using a set of skeleton keys to gain entry to the flat, which can only have been for the purposes of robbery.

31. At least one was armed with a beef knife when they entered the premises. The other must have armed himself with the bloodstained chopper which was left in the flat.

32. The taking of Mrs. Lam's cash and watches occurred after Mr. Lam had been attacked.

33. There was abundant evidence on which the jury could find that each of the defendants either struck blows which killed Mr. Lam or assisted the other in attacks upon him which were intended to cause him at least serious bodily injury.

34. Treating this reference as if it were appeal against conviction on both counts, we dismiss it.

Representation:

C. Muscroft (D. L. A.) for D.1.

A. M. Niamatullah (D. L. A.) for D.2.

J. D. Kynoch, Senior Crown Counsel, for Crown.