R. v. Yip Kin Chit

CACC000275/1996

IN THE COURT OF APPEAL

1996, No.275

(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer & Mayo, JJ.A.

Date of hearing: 21 February 1997

Date of judgment: 21 February 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced two counts. The first, possession of arms and ammunition without a licence, is being particularised that he on 19th September 1995, outside 242 Portland Street, Mongkok, had in his possession a firearm and ammunition, namely a 7.62 mm automatic pistol and ten rounds of 7.62 mm ammunition. The second count, conspiracy to rob, alleged that on 19th September 1995, conspired together with Fei Chai to rob. The applicant was convicted on both counts after trial before Leong J. and a jury and to eight years on each count with the sentences ordered to be concurrent. He now seeks leave to appeal against both conviction and sentence. The applicant appears in person in his application for leave to appeal against conviction and Mr. Whitehouse appears for him on sentence.

2. It was the Crown case that officers of the Organized Crime and Triad Bureau were laying ambush outside the Rex Theatre in Portland Street, Kowloon on the morning of 19th September, 1995. They saw a Volvo vehicle drive up and saw two men approach the vehicle, speak to the driver and then board the vehicle into the rear seat. The officers then immediately rushed up and apprehended the three men. The applicant was subdued by two officers and a gun, the subject of the first charge, was found at his waist and two bullets were found in his right trousers pocket. The applicant was then taken back to the headquarters of the OCTB and in a taped video recorded interview he admitted that the gun and bullets were brought from China and that he was in possession of them and that he intended to go with other persons, one of whom was Fei Chai, to Central to commit a robbery.

3. It was the applicant's defence that although he was in the Volvo car at that time he did not have any gun or bullets in his possession, that they were on the front passenger seat. He contended that his confessional statement was not true and that he had only signed because he was assaulted and threatened. It was the suggestion at trial that the police officers had fabricated their evidence, particularly as to the finding of the gun and bullets, in order to protect the driver of the Volvo who was a police informer The judge rightly observed in his summing-up that:

".... the crux of the matter is really the credibility of the officers and the credibility of the defendant and his witnesses. If you are sure that the answers given by the defendant in this video recorded interview are his own answers and not what he was told to say, you will consider whether the admissions he made contained in these answers are true.

If you are sure that the admissions are true, this is evidence in support of the prosecution case both on the 1st count and 2nd count. If you are sure that the gun and the bullets were found on the defendant at his waist, you will convict him on the 1st count. If you are sure that he had agreed with Fei Chai to rob, in Central, some trading company, you will convict him on the 2nd count.

If you are not sure that what he said under interview is true, then there is no evidence against him on the 2nd count, you will acquit him of the 2nd account. If you are not sure of the evidence of the police officers or you think that the evidence of the defendant or his witnesses may be true, you should acquit the defendant of both counts.

4. The judge carefully canvassed the facts, leaving them as he properly should, for the decision of the jury. The applicant, who has appeared for himself in his application for leave to appeal against conviction, has submitted several written grounds and he has also advanced a number of matters in argument.

5. He suggests that the police evidence is contradictory. The main contractions to which he points relate to the finding of the gun. The trial judge left for the jury these contradictions, telling them they were matters for their decision but saying, quite properly, that they had to take into account that this arrest took place very quickly in circumstances of extreme tension and that discrepancies had to be viewed in that light. These matters were properly left to the jury. There is nothing in the suggestion that this court should interfere because of them.

6. The applicant complains also of the direction of the judge with regard to the informer. In this regard the judge said to the jury:

"You will note that Cheng is not a witness in this case, and we heard no evidence from him. As I told you at the beginning of my summing-up, you should not speculate what evidence he would give if he had been called. You should also not speculate as to why he has not come here to give evidence. Confine yourselves to the evidence before you and decide the issues you have to decide."

That was a proper direction and one to which no objection can now be taken.

7. The applicant also argues that the fingerprint evidence was not properly appreciated by the judge and was not properly explained to the jury. There is nothing in this suggestion. The judge dealt with that evidence rightly pointing out the jury that the absence of fingerprints was not necessarily of any significance and leaving the matter at the end of day for their decision.

8. The applicant also suggests that there was clear evidence coming from two interviewing police officers which indicated that the gun had not been found on his person but had been found in the front seat of the car. The judge dealt with that evidence saying:

"You will remember the evidence of the two officers called by the defence, DPC 13151 and 20700. They were officers who interviewed the other two arrested persons, Cheng Kwok-keung and Chow Leung-ngan. Their evidence is that, in the preambles of the records of interview, which were read to the two men, they recorded that a pistol and bullets were seized in the private car EN6234. This evidence is not challenged.

It is suggested that this evidence supports the defence case that a gun was found in the car. But you have to bear in mind that these officers were not at the scene of the arrest. They were instructed by Inspector Yuen to interview these men, and they told you that the preambles were written out by them according to their instructions.

You will remember that we have no evidence as to the details of such instructions, whether coming from the senior inspector or from the two DPCs. You will also remember Superintendent Roberts told you that the background of the case accorded in the preamble was general in nature and would not be very specific, and since these two men were found in the car with the defendant, who had the gun on him, they were asked to explain. What you make of such evidence is entirely for you."

Again that matter was squarely left to the jury. It was explained to them by the judge and it, having been explained, the jury were told that it was "entirely" for them. No proper objection can be taken to the way in which that evidence was treated.

9. The applicant in his written grounds complains that he was set up by an informer. Whether or not this be so the suggestion that he was set up by an informer who masterminded the crime can hardly help him in his application for leave to appeal against conviction.

10. All of the matters raised by the appellant are matters of fact. They were dealt with by the judge in his summing-up and were left, as they should have been, for the decision of the jury. Nothing has been urged which would make the conviction was either unsafe or unsatisfactory and the application for leave to appeal against it must, therefore, be refused.

11. We turn now to sentence. The applicant was convicted on two counts, one of possession of arms and firearms without a licence and one of conspiracy to rob. It was the Crown case that the applicant with Cheng Kwok-keung and Chow Leung-ngan conspired together to commit a robbery in the Central District of Hong Kong and that they were apprehended on the Kowloon side just before setting out to commit the robbery. It was common ground that Cheng was a police informer and that the arrest took place because of information which he had given to the police. Mr. Whitehouse submits that he was more than an informer. He submits that he orchestrated the planning of the robbery and that, had it not been for him, no offence would have been committed. The strongest support for this contention comes from the cautioned statement of the applicant himself which was admitted after a voire dire hearing. In it the applicant says that Cheng suggested the robbery and then played an active part in its preparation up until the time of the arrests. These matters were raised before the trial judge who seems to have taken the view that no discount could properly be given unless it was established that the entrapment took place at the instigation of the police. He seems to have considered that before a discount could be given there had to exist what has in some cases been termed "official entrapment". A situation of official entrapment certainly calls for a discount but it puts the matter too high to rule out the possibility of any discount where there has been no official involvement. It must be said that the trial judge was not referred to the authorities which were placed before this court nor did he have the benefit of the comprehensive argument that we have heard. We are satisfied that the matter is properly put in the case of Frank Alexander Birtles (1969) 53 Cr.App.R.(S).) 469 where Parker, L.C.J. said, at p.472:

"As I have said, no one will perhaps ever know the exact truth, but it certainly seems to this Court, doing the best that they can in the matter, that there is a real possibility here that the appellant was encouraged by the informer and indeed by the police officer concerned to carry out this raid on the post office. Whether or not he would have done it without that, again no one can say, but there is,, as it seems to this Court, a real likelihood that he was encouraged to commit an offence which otherwise he would not have committed.

It is in those circumstances that this Court is asked to review this sentence. On that assumption, that he was so encouraged, the Court is quite satisfied that some reduction in sentence is required."

Every case must, of course, depend upon its own facts and, in particular, upon the degree of encouragement that was given to the offender.

12. In the present case the offence was a very serious one. Armed robbery using an automatic weapon was contemplated. While it may be that the applicant had the offence suggested to him by the informer, what cannot be gainsayed is that, thereafter, he threw himself whole-heartedly into its commission. He went to Shenzhen to arrange with Chow to obtain a weapon, he was waiting to meet Chow when he brought the weapon into Hong Kong, he then took possession of it and was carrying it loaded at the time of his arrest. Given these facts we are satisfied that, while some degree of entrapment existed which merited a discount, it must be placed at the lower end of the appropriate range.

13. We allow the application, treat the hearing of the application as the hearing of the appeal and order that the sentence of eight years imposed on each charge be reduced to one of seven years. The sentences will remain concurrent.

Representation:

Mr. Liu Yuen-ming, S.C.C. (Crown Prosecutor) for the Respondent.

Mr. Whitehouse assigned by D.L.A. for the Applicant (re: sentence)

Applicant in person (re conviction).