Chan Sai-wai and Others v. The Queen

BETWEEN

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 17th March 1983

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JUDGMENT

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Silke, J.A,:

1. Before us were three appellants - one with leave and the other two renewing their applications for leave to appeal.

2. The first - who was the first defendant at  the trial - appeals against his conviction on counts one and four on the indictment.

3. The second who was the fourth defendant at the trial - seeks leave to appeal against his conviction on count three on the indictment, as does the third who was the sixth defendant at trial.

4. On the 14th February 1981 a robbery took place at the second floor of 59, Nga Tsin Wai Road. Charged with its commission were the 1st, 2nd, 3rd and 4th defendants: the 1st was found guilty, the 2nd and 3rd were acquitted and the 4th pleaded guilty.

5. Another robbery took place in the same building, but on the ground floor, on the 31st March 1981. Charged with that robbery - and with an allied count of kidnapping - were the 4th, 5th and 6th defendants. All three pleaded guilty to the robbery charge and the 5th defendant pleaded guilty to the kidnapping. The 4th and the 6th defendants were found guilty of the kidnapping.

6. The fourth count on the indictment was in relation to a robbery on the 24th April 1981 at New Clearwater Bay Road and charged with that were the 1st and 2nd defendants. Both were found guilty. It was the events which gave rise to this count which initiated the investigations which led to the rest of the charges being laid.

7. For completeness there were two further counts - the fifth and the sixth - upon which the 1st defendant was charged with assaulting a police officer and acquitted and the 4th defendant was charged with a drug offence. Neither need concern us further.

8. Mr. Muscroft, who appears for the 1st defendant, attacks the conviction on the first count on two main grounds: one, that the conviction was against the weight of the evidence and two, that the trial judge misdirected the jury on the effect of evidence read into the record of certain pawnbrokers. These two errors coupled with a lengthy questioning of the appellant by the trial judge make the conviction unsafe and unsatisfactory.

9. On the fourth count it is his case - and he must put it as high as this to succeed for the evidence was very strong - that the questioning by the trial judge was of such a nature as to vitiate the conviction.

10. Mr. Aiken, who appears for the 4th defendant, attacks the conviction on grounds of misdirection and non direction in  law as to identification by the trial judge.

11. Mr. Mackay, who appears for the 6th defendant, bases his attack on factual misdirections, on a failure "to put adequately the case of the 6th defendant to the jury" and on a non-direction in law as to aiding and abetting.

12. We allowed the appeal against conviction on the first count of the 1st defendant and dismissed his appeal against conviction on the fourth count. We refused leave to appeal against their convictions to the 4th and 6th defendants on the third count. We stated we would give our reasons later. This we now do.

13. The case against the lst defendant on the first count consisted of an identification by a Miss Lai, the evidence on oath of the 4th defendant inculpating the 1st in the robbery and that which I may call the "pawnbroking evidence".

14. Miss Lai had also identified the 2nd and 3rd defendants as being members of the robbery team. The jury clearly, in so far as they acquitted them, did not place reliance upon that identification. Further Miss Lai was by no means as firm as to the correctness of the identification in cross-examination as she was in examination-in-chief. Mr. Dick, who appeared for the Crown in this court, conceded, very properly, that the identification evidence was unreliable and insufficient of itself to sustain the conviction.

15. The 4th defendant who had made a somewhat inglorious attempt in the course of the trial to resile from his guilty plea on the 1st count - an attempt rightly rejected by the trial judge - was an untruthful witness. Nothing he said in relation to the culpability of the lst defendant could be relied upon.

16. As Mr. Muscroft says, that in effect left the "pawnbroking evidence". This was made up of the statements by five pawnbrokers being read out by agreement. Each related to the pawning of articles stolen in the robbery of the 14th February  within hours of that robbery having taken  place,

17. Each statement, contained the phrase "a Chinese male, CHAN Sai Wai, Hong Kong Identity Card XXXXXXX requested to pawn ....... " It then set out the articles which were pawned, which included a gold Rolex watch upon which $20,000 was advanced, and generally the  amount of the advances.

18. Before these statements were read out the Crown made the following admission:

"that the 1st defendant was only identified by the pawnbrokers whose evidence will be read by agreement by the particulars on his identity card: further, my Lord, at if the pawnbrokers had been called to give oral evidence, in court, that they would not have been asked by the prosecution to identify the 1st defendant in the dock."

19. It was the defence case in respect of the pawning that the 2nd defendant had taken the identity card of the 1st defendant, and without his knowledge, at the instigation of the 4th defendant. The purpose being that the 4th defendant, who had five previous convictions on charges of giving false particulars to pawnbrokers, would either use the card himself or arrange for others to use it to realise the proceeds of the robbery. This was supported by the evidence of the 2nd defendant - the brother of the 1st.

20. It is of some significance in considering both the effect of the "pawnbroking evidence" and the directions of the trial judge  upon it  that in the court of trial there was no reference to the doctrine of recent possession.

21. The trial judge first mentioned this aspect of the Crown's case in the course of his summing-up by saying:

"Enquiries were made from various pawn shops regarding certain property which had been  pawned in the name of the 1st accused using his identity card. You have heard the evidence of the various pawnbrokers read out to you in court and these were prefaced by an agreed statement to the effect that the prosecution do not seek the identification of the person named CHAN Sai Wai by the pawnbrokers as the 1st accused in the dock."

22. This passage might perhaps have been more happily phrased for the person named CHAN Sai Wai was the lst defendant in the dock. But having said that, by itself, it is not incorrect.

23. At a later part of the summing-up the trial judge said:

"Most of the articles were stolen from 59, Ngar Chin Wai Road, second floor and these were pawned by a person bearing the name of CHAP Sai Wai and using an identity card which was in that name," (Emphasis mine).

24. Mr. Muscroft objects to the emphasised phrase as going much further than the admission made by the Crown as to the purpose of this evidence. He has a point.

25. The trial judge then went on to invite the jury to draw the inference - and he cited to them section 27 of the Pawnbrokers Ordinance -that "when valuable articles are pawned, pawnbrokers would as a matter of prudence, and also of law, confirm that the person pledging the articles was the same as depicted on the identity card."

26. It may well be that had the pawnbrokers given oral evidence, this would have been said but they did not and there was no such evidence before the jury. With respect we think the trial judge went too far. Further we do not accept Mr. Dick's submission on this part of the evidence especially as it could seem that the Crown at trial did not seek to rely, directly at least, on recent possession - that it is of itself sufficient to prove the guilt of the appellant.

27. When the examinations by counsel of the 1st defendant had concluded the trial judge questioned him at length. This took, we are told, about one hour and was strong in tone. It clearly was strong in content.

28. Let it be said at once that this was a lengthy and complicated trial and that the judge dealt with it with "monumental" - Mr. Muscroft's word - patience and courtesy. But the effect of the questioning was to make it  clear in  no uncertain terms that this patient judge did not believe one word of that which the defendant had to say in evidence. He went very close to directly calling him a liar. With the greatest respect to this very experienced judge we think he went too far and descended into the arena.

29. This aspect coupled with the weak and equivocal nature of the evidence and the pawnbroking directions makes the conviction on the first count of the 1st defendant unsafe and unsatisfactory.

30. The evidence on the fourth count was very strong. The two defendants had stopped a man. The man was taken to a hillside searched in a "C.I.D. manner", was pushed around, had his money and his driving licence taken and was then brought down the hillside for a form of fictitious identity parade. There was a pretext that he himself was a thief and had stolen money from the 2nd defendant. At the roadside the man, with the two defendants, saw two motor cycle patrol constables and sought their help. When the defendants were confronted the evidence was that the 1st defendant ran away, was chased and was subdued by one of the constables.

31. The only point Mr. Muscroft takes is, as I have said, that the questioning by the judge vitiates the conviction. We do not think it does, excessive though it may have been. If necessary, we would have applied the proviso.

32. We are not quite done with the 1st and 2nd defendants for they were, in a manner most bizarre, drawn into the counts concerning the 4th and 6th defendants.

33. On the 30th April an identity parade was held. The line-up contained the 1st and 2nd defendants. Those viewing the parade were the victims of the robbery on the 31st March and who were also involved in the kidnapping, that is the boy who was taken, his father Mr. Ngai and his mother Madam Au. Each separately, and with apparent independence - and the two defendants had variously changed their positions on the parade - identified positively and confidently those defendants as the robber/kidnappers a circumstance counsel for the Crown at the trial was constrained to suggest was very suspicious. It is fully accepted that the 1st and 2nd defendants had nothing whatsoever to do with that crime. Madam Au had confidently identified one of them as the man with the gun. A point, says Mr. Aiken, not sufficiently emphasised when the trial judge came to consider her evidence of the identification of the 4th defendant at a later stage.

34. If nothing else, this serves to illustrate the dangers inherent in identification evidence and the reasons for the warning adumbrated in Turnbull⁽¹⁾.

35. Both Mr. Aiken and Mr. Mackay rely on this  thoroughly mistaken identification as indicative of the unreliability of the identification evidence of those three persons as to who did what and when in relation to the kidnapping charge. It was the case for the 4th appellant that he was not there at all and for the 6th appellant that, while participating in the robbery, he recoiled from taking any part in the kidnapping.

36. Apart from their pleas of guilty to the robbery, placing them both at the scene - and it must be remembered that the evidence was that the kidnapping was carried out because the robbers could not get enough booty from the robbery - there was evidence that a sheet of paper containing the telephone number of Mr. Ngai's company given by him to the negotiating robber, a bag, a gun and  properties stolen in both the robberies were found in the possession of the 4th defendant upon arrest. The 6th defendant had made a statement showing knowledge of the kidnapping and of the acceptance of $33,000 which came from the money paid over by Mr. Ngai. The 4th defendant said the evidence was planted on him by the 1st defendant. He further alleged that he had been forced to plead guilty by the other defendants. The 6th defendant said he thought the money he got came from some form of blackmail practiced upon Mr. Ngai.

37. It is correct that there were differences as between, the evidence of Mr. Ngai, Madam Au, the boy and the first wife of Mr. Ngai. Madam Ng, as to which of the three robbers did what in the removal of the boy. One said two went with the boy while the man with the gun remained behind, one said one man went with the boy while two men remained and another said the three men left together with the boy. But there was also evidence that the man with the gun, whom the Crown sought to prove was the 4th defendant, had a discussion with the other two came back and, while the other two, were still present, made his demand for ransom money.

38. The evidence went further. It showed that the elder brother of` the seven-year-old boy had offered himself as the kidnap victim while the negotiations were in progress. Again all three robbers were present.

39. The trial judge did refer to the fact that inconsistencies existed. It is true that he did not expound upon them in detail. Had identification generally been in issue there might have been some substance in the complaints of Mr. Aiken which culminated in his fourth ground of appeal. The trial judge, having directed in full on identification as an issue on other charges, did not - and we see no reason why he should- repeat his warning when dealing with the counts which involved the 4th and 6th defendants. The real issue here was whether or not those two defendants were participants in the kidnapping. There was, despite their denials, clear evidence upon which the jury could convict and upon which they could come to the conclusion that the 4th defendant was the man with the gun.

40. On the matter of "participation" Mr. Mackay suggests that the trial judge should have directed the jury specifically upon a non-accidental presence being, of itself, not enough to ground a conviction. But as I have said, the evidence went very much further than that and, in any event, a full and proper direction had been given to the jury on common design.

41. There were but two matters which gave us some cause for concern. The first in relation to the 4th defendant was stated thus in Mr. Aiken’s grounds:

"The learned trial judge failed to direct the jury, as he ought, of the relevance of certain previous convictions recorded against the 4th defendant which were introduced into evidence by Counsel for the 6th defendant."

42. The 4th defendant had attacked the 6th defendant. He was cross-examined. There had also been reference to his pawnbroking convictions and the defences of the 1st and 2nd defendants in relation to count one in the indictment. In the course of the cross-examination the 4th defendant had gratuitously made reference to the fact that he had spent three years in prison. The trial judge made no reference in terms usual in these circumstances to either the previous convictions or the admission of a previous custodial sentence. They relate of course, to the issue of credibility and not guilt.

43. It must have been abundantly clear to the jury that the pawnbroking convictions were relevant only as to the truth or falsehood of the defence of the "borrowing" of the identity card of the 1st defendant by the 2nd defendant at the behest of the 4th defendant. The 4th defendant had pleaded guilty to that robbery. Little harm could come to him from that.

44. The admission of jail experience was gratuitous and again, he had pleaded guilty to yet another robbery. It is always a difficult decision for a trial judge whether or not and particularly in novel circumstances such as here, to emphasize such an admission by drawing it to the attention of the jury in the course of his summing-up. The 4th defendant did not, in view of his pleas, present himself to the jury as one without stain. Here we do not think that the judge can be faulted for refraining from a direction on these points.

45. The second point related to the 6th defendant and the grounds argued by Mr. Mackay put it thus:

"The learned trial judge failed to put adequately the case of the 4th appellant (sic) to the jury."

46. What the trial judge did do was to refer the jury to the statement made by the 6th defendant and to state that his evidence in the box stemmed from that statement - which it did. He did not go into detail of every nuance emerging from the 6th defendant's oral evidence but he did remind the jury of the nub of the 6th defendant's defence. That is that he had resiled from the kidnapping making his position known to the others involved and that he did not think the money which he received to have come from that crime.

47. We did not find the manner in which the defence was put to the jury to be inadequate in the sense suggested by Mr. Mackay.

48. In the event we made the orders which have been set out earlier in this judgment.

49. Having heard Mr. Aiken as to the sentences of nine, ten and fourteen years concurrent passed upon Chung Hung Por, the second appellant and 4th defendant the application for leave to appeal against sentence was refused. While the fourteen years' imprisonment passed on the kidnapping count was the maximum for the offence, the trial judge clearly approached sentence on the basis of totality. The offences were serious ones and that totality was in no way wrong.

50. Kong Yan Ka, the third appellant and 6th defendant, was heard in person on the sentences of nine and ten years concurrent passed upon him. In the light of the circumstances surrounding the robbery and kidnapping for which he was convicted those sentences were by no means unreasonable. His application for leave to appeal against sentence was refused.

(1)    (1976) 3 All E.R. 549

Representation:

C. Muscroft, Esq. assigned by DLA for the 1st Appellant.

N. Aiken, Esq. assigned by DLA for the 2nd Appellant.

G.A. Mackay, Esq. assigned by DLA for the 3rd Appellant.

J.W. Dick, Esq. for Crown/Respondent.