The Queen v. Li for Nam

CACC000164/1988

BETWEEN

______________

Coram: Hon. Fuad, V.-P. Hunter & Power, JJ.A.

Date of heading: 28 October 1988

Date of judgment: 28 October 1988

______________

J U D G N E N T

______________

Hunter, J. A..

1. The applicant Li For Nam seeks leave to appeal against his conviction on 24th March 1988 after trial before de Basto J and a jury, of one count of robbery. The count charged him with robbery on 24th October 1987 at No 159, Sai Yeung Choi Street in that he there robbed a Miss Form Wai Lan of her handbag, her purse and a sum of over HK$10,000.

2. The evidence given at the trial went shortly like this. On that morning Miss Fong went to her bank and drew out this large sum of HK$10,000 for particular purpose to help a friend. She returned to her home which was at No 159, Sai Yeun Choi Street. Outside the door of her apartment she saw the shadow of a man, and "sensed" that someone was hiding there who was about to attack her. Her sixth sense was totally correct because when se ran off down the corridor the man emergel and chased her. In his hand he had a small knife or cutter. In her Panic she fell down He squatted over her. Her left palm was cut with the knife. He punched her several tines in the stomach. She then covered her face and said she was offering no further resistance. She would not shout, an he could take what he wanted. With that he cut her bag off her shoulder and ran away

3. She was a girl of some spirit, because as soon as he had gone she chased after him she and a man emerged, from the block by different exits at about the same time. The two exits some the twenty metres apart. What she saw when she came out herself was a man carrying, a yellow plastic supermarket bag. She is somewhat short-sighted and she could not see his face clearly but she thought he was familiar. She thought he was the man who had robbed her. She set off after him shouting "robber", and chased him down Sai Yeung Choi Street into the adjoining street round the corner.

4. This exercise was watched by three Police officers, who were in a police car just emerging from Mong Kok Police Station. They saw this incident, watched the man, joined he the chase and stopped him round the corner. After a struggle he was subdued. Those officers gave two crucial pieces of evidence. First they said that on the man's Person they found a cutter which was later identified by the victim. Secondly they said that lie was throughout holding a yellow plastic bag. When that bag was opened, it was found to contain the lady's handbag and everything she had lost only a few minutes before.

5. Immediately following his conviction the applicant put in home-made grounds of appeal and some time later much more extensive grounds of appeal of his own. In those grounds he made a detailed and forthright attack upon the conduct of his defence in the court below. That ground has been expressly abandoned by his counsel before this court this morning. He may or may not be. Comforted to know that before that occurred this court bad read those grounds, and substantial Passages in the transcript, and found no substance in them. The abandonment of this morning was totally right and correct.

6. The ground which has been advanced on his behalf by counsel this morning is quite different and raises a pure question of law. In order to understand it it is necessary to say a word about the conduct of the case in the court below. None of the evidence which the victim gave concerning the events of the robbery was challenged from start to finish. When one considers that she lost her bag outside her flat one minute and recovered it round the corner not long afterwards and the circumstances in which she came to lose it, it is difficult to see that the loss could amount to anything but robbery. That was the way in which the case was conducted by both counsel in the court below. This was one of those cases of which many come before the court. Robbery is a typical example, burglary is another, where upon the evidence given by the victim there can be no question but that that particular crime has been committed, the question and the real question for the jury is whether that crime was committed by the person who stands charged with it.

7. That was the real, issue of fact raised at this trial. It was the issue upon which both counsel very sensibly and in our view properly concentrated. In the course of his final speech to the jury counsel for the defence said:

"This case is a simple one. As my learned friend has said, there is no issue, no challenge taken that there was a robbery, how it was carried out and what property was being stolen or robbed and so forth. The only issue here, the only matter which you have to resolve is whether the accused there was the robber who robbed. Miss Fong, and it is upon that issue that I intend to address you."

This to my mind shows the adversarial system, which we operate in this country, at its best. Both counsel were concentrating upon what was the essential question for this jury to answer in order to arrive at its verdict.

8. When he came to sum up the case, the Learned Judge followed counsel's example, if I can put it in that way.  He started with a very short account of the Crown case, and a very short account of the defence case. He then went on :

"The robbery perpetrated on Miss Fong is not in dispute and the sole issue for you to determine is whether it was the accused who robbed Miss Fong."

Later when he came to deal with the law he said this:

"The law in this case is very simple, members of the jury. Robbery, in its simplest terms, is stealing accompanied by force or the threat of the use of force and as I have already said, the robbery in this case is not in dispute. The only issue for you to determine is the identity of the robber. To put it more clearly, the issue before yours whether or not you are satisfied beyond reasonable doubt that the accused was the robber".

9. The point now taken by new counsel for the applicant is that this was both a misdirection and a non-direction. It was a misdirection because it was not a precisely accurate description of the crime of robbery. It was a non-direction because the Judge said nothing at all about the ingredients of theft. It is submitted that in the absence of a formal admission under, section 65C any Judge at any trial which involves an issue of theft, must go through all the ingredients of that offence and direct the jury fully and precisely as to those ingredients. This is necessary quite regardless of the way in which, the case has been conducted in the court below. It is quite insufficient to say, as the judge here said that the only issue here is identification and then to go on to deal in particular, first of all, with the evidence of the victim. It is quite insufficient to leave it with the jury that if they are satisfied With her evidence of identification, as they clearly must have been, they must equally have been satisfied with her account of the events which unquestionably as a matter of law amounted to the crime of robbery. That is insufficient. That the whole thing must be spelt out in detail to them, is the submission.

10. Reliance for that proposition is placed upon R v. Cocks (1976) 63 Cr App R 79 which it is said justifies the submission that in every case involving theft all these ingredients must necessarily be spelt out. With respect to counsel we do not extract that principle from that case at all.The criticism by the Court of Appeal in that case of the trial judge's summing up, stems from his failure to put properly to the jury one of the crucial ingredients in that man's defence which was the absence of any intention permanently to deprive the victim of the handbag and its contents.

11. Nor do we think that this is a proposition of general validity. The purpose of a summing up is to concentrate, to focus, the minds of the jury on the questions they have particularly to answer; before they can bring in a verdict of guilty or not guilty. Plainly they have to be directed upon the material law. But what is material law which requires the fullest direction is not unaffected by the way in which the case is conducted and by the conduct of counsel; that is where a man is being properly represented with counsel on both sides. Where a man has to defend himself, or does not defend at all, different considerations may arise.

12. This believe was recognised by the Court of Criminal Appeal in England very shortly after it was brought in existence in R v Stoddart (1909) 2 Cr App R 217. That was a case of some significance because it was adjourned to be argued before a court of five presided over by Lord Alverstone CJ. At the end of the judgment the court went out of its way to draw the attention of the profession generally to certain matters relating to the General practice and intentions of the court. Lord Alverstone at p 246 cited from a judgment of Lord Esher some observations on the difference between non-direction and misdirection. He went on in these words :

"Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by counsel for the prosecution and for the defence respectively".

That, we regard, as an important observation. It points to the  judge's duty in these circumstances to look to the issues which have been raised between the parties, which is of the essence of the adversarial system. The Lord Chief Justice went on :-

"This court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or maore conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced.The court sits here to administer justice, and to deal with valid objections to matters which may have led to a miscarriage of justice".

Note the emphasis on substance rather than form.

13. In this case, counsel on both sides and the judge concentrated upon the real issue which was that of identification. There was no way in which the  jury could convict, ie be satisfied on that evidence, without equally being satisfied of the truth of what the victim said happened in the course of her loss. It is common ground plain and obvious that if they accepted what she said the crime of robbery was committed.

14. In our judgment this summing up was not deficient. It may on some occasions be desirable for the judge to go further. It all depends upon the circumstances of the particular case, and the way in which it has been presented to the jury. In our judgment, no valid criticism can be directed to this summing up. There is no way in which this summing up can be said to have led to a miscarriage of justice or produced a verdict which was unsafe or unsatisfactory. The application is dismissed.

15. The applicant also seeks leave to appeal against the sentence of 8 years imprisonment imposed on him. Mr Bell has drawn our attention to the leading case of Mo Kwong Sang v The Queen [1981] HKLR 610, and concedes that the direct application of the guidelines set out in that case would lead inevitably to a figure of 7 years, for a number of reasons. First this was a bad case of robbery. It is an invasion of private premises when a young girl is attacked in corridor outside her apartment. She was threatened with a knit and was in the process cut with that knife. That to which I would be minded to attach equal if not greater importance, is the gratuitous violence with the first, when he punched her, she said repeatedly, in the stomach, when she was on the group. This seems to me unjustified and beyond everything. He succeeded in reducing this young girl to complete surrender and prepared to give up everything she had; a young girl of considerable spirit which she showed by the chase she made afterwards.

16. He has a bad record. As recently as 1983 he was convicted on two different occasions, and sentenced to three and a half years' imprisonment on the first, and on the second to three years' Imprisonment. He cannot have been long out of prison when he committed this offence. His record is another factor which the court is enjoined by the principles of Mo Kwong Sang to take into account. There is really no mitigation here at all, and no sign of contrition In any shape or form. In those circumstances, we are unable to say that the sentence imposed was manifestly excessive, and the application is rejected.

Representation:

Adrian Bell (M /s Haldane Midgley & Booth) for Applicant

J P McNamara, Deputy Principal Crown Counsel, for Crown Prosecutor