The Queen v. Chin Sin Fu and Others

CACC000191/1988

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Coram: Silke, V.-P., Penlington & Macdougall, JJ.A.

Date of Hearing: 26 May 1989

Date of Judgment: 26 May 1989

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J U D G M E N T

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Silke, V.P.:

1. Five defendants were arraigned upon an indictment containing three counts: the first robbery on 11th October 1987; the second handling stolen goods, having dishonestly received them; the third of handling stolen goods, having assisted in the removal of the stolen goods.

2. As matters eventuated, there were three defendants at trial. D1 was Chan Shu Lai who was D3 on the original indictment, D2 was Lin Siu Keung who was D4 on the original indictment and D3 was Wong Chun Yu who was D5 on the original indictment. We are now concerned with applications for leave to appeal against conviction by D1 Chan Shu Lai and D3 Wong Chun Yu. Both were convicted on the third count, D1 having been found not guilty on the first and second counts and D3 having been found not guilty by direction on the second count. They also seek leave, should it be necessary, to appeal against the sentences of 6 years' imprisonment passed upon each of them.

3. There is also an application for leave to appeal against a sentence of twelve years passed upon him by Chin Sin Fu D2 on the original indictment and who pleaded guilty.

4. A Mr. Chan Wing Hon and a Mr. Mg Shu Kai ran a silver bullion business known as Hang Cheong Hong. On 10th October 1987 they had a quantity of silver for transportation and they intended to use, as was their custom, Hong Kong Air Cargo Forwarders Limited to transport the silver from their premises at Kin Wah Street in North Point to British Caledonian Airways at Kai Tak Airport. It was arranged that the silver was to be collected at four o'clock on Sunday, the 11th October. Its weight was 1,700 kilos. and it was worth something between HK$2.5 to $3 million. It was to be transported in 21 boxes which had been made exclusively for the business of the Hang Cheong Hong. It was not insured.

5. The goods were collected at about 6:10 p.m. on the evening of 11th October. When the vehicle containing the silver had crossed to Kowloon side and reached Kai Shing Street, four men were seen standing on the left hand side pavement. One of them stepped forward holding a beef knife and called upon the goods vehicle to stop. The others also stepped forward and also held beef knives. The vehicle did stop, the driver was threatened and the Air Cargo employees were forced into the back of the goods vehicle which was then driven away for a short distance. The employees were tied up, gagged, made to lie down in the vehicle and were covered with a tarpaulin. The silver was removed. The goods vehicle was again driven off for a short distance and then abandoned. A little later the Air Cargo employees freed themselves and made a report to the police.

6. The issues at trial were clearly placed before the jury in relation to the two defendants with whom we are concerned. In relation to Chan Shu Lai, a great deal of the evidence came from a man Yau who was treated as being and was an accomplice. Chan was a goods vehicle driver who worked for his elder brother. It was the Crown case that he had conveyed items from a factory building to a village in Kwan Moon Hau which contained Yau's house. He was asked to do this by a friend and was paid a normal fee for so doing. It was his evidence that he had not become further involved again after that particular incident, but it was Yau's evidence that he was present when $12,000 was paid to Yau as was part of his fee for his participation in the robbery and that Chan was also involved at Yau's house in moving the silver. There was also his cautioned statement.

7. We would interpolate here that the third count was stated to be an alternative to the second count and the jury were invited, if they found the second count proved, not to move on to the third.  Quite clearly the jury did not take the view that the second count had been proved in either case to the required standard of proof and they did move on to the third count.

8. In respect of Wong Chun Yu there was evidence relating to the second count from a man, Lo, who was a co-worker of D3 but not implicated with him, and there was further evidence on the third count from Yau and also in a cautioned statement by Wong as to his participation and involvement at the Yau house in assisting in the removal, of the goods.

9. In the course of his summing up the judge gave a warning as to the dangers of reliance upon the evidence of accomplice witnesses which, of course, he was required to do. He advised the jury to approach their evidence with the greatest care". He advised them that they should look for corroboration and he defined corroboration thus:

"Corroboration, members of the jury, is simply this: it is evidence independent of that of the accomplice which tends to incriminate a defendant and points towards him having committed the offence in question. So it is essentially independent evidence of that of the accomplice which tends to incriminate the defendant and point towards him having committed an offence."

10. It is the submission of Mr. Howard, who appears for the Applicants in this Court, with him Miss Poon, that the trial judge misdirected the jury on the question of corroboration of accomplices and that "he failed to direct the jury as to what part of the evidence could to decide what fact was corroboration" - we take this to mean capable of being corroboration. The judge did direct the jury as to what was not capable of being corroboration, that is the evidence of one accomplice as regards another. He then directed them what was, and he used these words:

"Where (sic) you possibly could find corroboration in this case is from the cautioned statements of the accused. If you accept that the cautioned statements given by the accused are from their own minds and this is what they did and they are accurately recorded by the police, then you may find to a degree or to a limited extent some corroboration of what some of these witnesses said."

Mr. Howard complains that that particular passage does not go far enough. The judge then went on to say:

"I am going to leave it to you to look for that corroboration. I could painstakingly go through each cautioned statement but you have them there and I am sure you can find it."

11. Mr. Howard complains that that is a misdirection, in that it is incumbent upon a judge to direct the attention of the jury explicitly to the evidence which they could consider to be capable of being corroborative, it being a matter for them to decide whether it is or not.

12. In support of his contentions he has cited Goddard [1962] 1 W.L.R. at 1286 and in particular the passage in the judgment of Lord Parker, L.C.J. at page 1286 and in further support he has referred to Charles (1979) 68 Cr. App. R. 334 and Reeves (1979) 68 Cr App. R. at page 331. He emphasised the commentary, by Professor Smith to R. v. Cullinane (1986) C.L.R. at 421 wherein, with reference to Reeves, the commentator said:

"The tendency of modern authority is to be more stringent with regard to the duty of the judge to identify evidence which is capable of amounting to corroboration."

13. In Goddard, Charles and Reeves the complaint was that there was no indication at all of what evidence could amount to corroboration. Here, of course, there was such an indication by the trial judge when lie made reference to the cautioned statements. When he came to deal separately with each of the defendants, the case against them and their evidence he again made reference to the cautioned statements, though at this point he did not remind the jury of his earlier directions on corroboration. We do not think that the jury could have been under any illusion that he was referring to the cautioned statements in the context of their being corroborative. They must be taken to have had the earlier direction to which we have referred in mind.

14. Here there was not a total failure to direct what evidence could be capable of being considered by the jury as being corroborative. It is correct, and this is the gravamen of Mr. Howard's complaint, that he did not detail that evidence by referring the jury to specific portions in the cautioned statements.

15. Had there been contained in those cautioned statements, and it is accepted there was not, evidence which the jury might have misconstrued as being corroborative when it was not then Mr. Howard's complaint would have great substance.

16. However in the circumstances here, we do not think that it was incumbent upon the judge - although the causal manner in which he stated that of which it is particularly complained does not commend itself to us - to have gone through the statments with the jury in any greater detail than he in fact did. Each statement made reference to implication in the offences charged and they referred to personal details but that was as far as those cautioned statements went. The trial judge did warn that the evidence of Yau was largely uncorroborated. Certainly it is not only desirable but necessary for a judge to indicate to a jury generally what is capable of being corroboration and that which is not in case a jury might take the wrong road. But we do not think here - and each case must depend on its own particular facts - that in the light of the summing up based on the evidence which had been produced and the way the trial was conducted, it was necessary for the judge to go further that he did.

17. In those circumstances, the applications for leave to appeal against conviction are refused.

Sentence

18. We now deal with the application in respect of sentence of Chin Sin Fu, who was represented by Mr. Plowman, and Chan Shu Lai and Wong Chun Yu.

19. Chin was sentenced to a period of 12 years' imprisonment; Chan and Wong, who were convicted of handling, to periods of 6 years' imprisonment each.

20. Mr. Plowman, on behalf of Chin, has drawn our attention to certain matters which were briefly touched upon before the trial judge but which are now dealt with in detail before us. These were his undoubted co-operation with the police immediately after his arrest and his antecedents. He made a full and detailed confession of all the matters concerning both the robbery and the subsequent dealings with the silver. He was the second man placed under arrest, the first being Yau, the accomplice, who was used at trial as a prosecution witness. The effect of Chin's evidence was to reinforce the statement that Yau had given and which led to his being so used. Further he took the police to two places not mentioned by Yau; one of them the place where the broken boxes and nylon rope were recovered.

21. Mr. Plowman also drew our attention to Chin's break up with his girlfriend in 1985 which led him into a depressed state followed by his association with undesirable characters and a break in his employment. His last job had run from 1981 to 1985.

22. We have been referred to the general guide lines in respect of armed robberies as set out in Mo Kwong Sang - but Mo was not dealing with robberies of this particular kind and is of limited assistance. He has referred us to The Queen v. Ip Tin Yan, Criminal Appeal 1109 of 1982; The Queen v. Chu Cham Wing and others, Criminal Appeal 586 of 1986; The Attorney General v. Miguel Tapay and others, Application for Review No. 7 of 1985; The Attorney General v. Li Ching Kwong, Application for Review No. 5 of 1987 and The Queen v. Mok Sin Wah, Criminal Appeal 419 of 1984. The purpose of drawing our attention to these unreported judgments is to indicate that in cases where guns are carried and in some of them discharged, in the course of a robbery - 16 years after a contested trial would be a proper sentence. The imposition of a 12 year sentence here after plea, and in spite of the discount allowed, would suggest that the trial judge's starting point was too high.

23. In the light of the fresh matters which have been brought to our attention and in the light of the general nature of this robbery we think that 12 years was too high. The Applicant did co-operate he was of assistance, and no discount would appear to have been allowed to him for that. We think that a sentence of 8 years' imprisonment would be a proper sentence to reflect this, his criminality and his participation in the offence.

24. With respect to Chan and Wong, they were convicted of but one offence of handling. Their partcipation was of a comparatively minor nature. We do not think this to have been sufficiently reflected in the sentences passed upon them. We think that a period of 4 years' imprisonment would be the proper sentence to reflect that.

25. The applications for leave to appeal against sentence are granted and the appeals allowed. The sentence on Chin is reduced from twelve to eight years, the sentences on Chan and Wong from six to four years.

Representation:

Gary Plowman, Esq. (Sit, Fung, Kwong & Shum) for D2.

William Howard, Esq., Q.C. & Miss Maggie Poon (Clifford, Yeung & Co.) for D3 & D5.

A.A. Bruce, Esq. for Crown/Respondent.