The Queen v. Yuen Wai Shing and Another

CACC000357/1989

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Coram: Cons, V.P., Clough & Power, JJ.A.

Date of hearing: 28 December 1989

Date of delivery of judgment: 28 December 1989

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J U D G M E N T

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Cons, V.P., delivered the judgment of the Court:

1. These are two applications for leave to appeal from the decision of Judge Wesley Wong given in the District Court on the 31st May this year whereby he found YUEN Wai Shing, who was the 3rd Defendant before him and FU Wing San, the 4th Defendant, guilty of the charge of robbery. Both are seeking leave to appeal against their convictions. There is still on record an application by the 4th Defendant for leave to appeal against sentence, but througn counsel today he has asked for leave to withdraw that application and we are content so to allow.

2. The robbery took place on the 16th December last year. All told there was some five persons said to be involved. It was perpetrated upon an advertising agency on the 10th floor, Wo On Lane in the Central District. A number of men entered the premises, their faces covered with towels, wearing white gloves and carrying what appeared to be weapons wrapped in newspaper. The receptionist and the lady proprietor were blind-folded and gagged with adhesive tapes; one of them had her hands tied behind her back. Fortunately the photographer of the agency was in his dark room. Observing what was happening, he closed the door and telephoned the police, who came, sealed off the lifts to the upper floors and apprehended a number of men, including the 3rd and 4th Defendants, on the staircase of the building.

3. The men, when approached, ran in different directions. The 3rd Defendant was caught on the corridor of the 3rd floor. He had in his shirt pocket three $100 notes and one $50 note, the exact amount of money taken from the office upstairs. He had also a pair of white gloves stuffed between his underpants and his skin. The 4th Defendant was apprehended on the same corridor. Nothing significant was found on him but he made an answer when cautioned by the constable who arrested him.

4. The learned judge acted upon three pieces of evidence in finding the 3rd Defendant guilty. They are set out in his reasons for verdict, which appears to have written some time after he gave brief reasons in court. The first is that the constable saw and chased the 3rd Defendant, losing sight of him only for one very brief moment. Secondly the presence of the gloves in the underpants which the judge felt would not have been concealed in that way if the Defendant had been on the premises for some lawful reason.  We note in passing that this particular reason was not mentioned by the judge when he gave his brief reasons at the conclusion of the hearing. This illustrates what we see as the undesirability of giving brief reasons at the time and expanding them later. We note that Sec. 80 of the District Court Ordinance, Cap. 336, requires the judge to place on record a short statement of the reasons for his verdict at the same time that he records his verdict or so soon thereafter as may be. It makes no provision for any other possibility.

5. The third matter is that the three $100 and the $50 notes were found separately from other substantial money which the 3rd Defendant had in a purse in his trousers pocket.

6. Mr. Howard on his behalf has put forward three grounds for leave to appeal against the conviction. The first is that the trial judge erred for having treated evidence which was non-corroborative as corroborating evidence. He refers to the money found in the shirt pocket. With respect we would disagree. We accept that the evidence does not amount to corroboration in the technical sense, but as we see it the judge did not rely upon it as corroboration in that sense. This is confirmed by the use instead of the word "fortified" in his reasons.

7. The second ground is that the learned trial judge was wrong to draw an irresistible conclusion against the Appellant from the evidence of the 1st Defendant that all the others were his good friends. What the judge said is:

"I accept that the other three Defendants are D1's good friends. I do not accept he went to that building for an innocent purpose. It is unbelievable that the other two good friends (D2 and 3) could have gone to that building at the same time as D1 and 4 without any prior arrangement."

It is to be noted that he does not say what conclusion he actually drew, if any, from the fact of accepting the friendship between them. Indeed as we read his reasons, this does not form part of his grounds at all for finding the 3rd Defendant guilty. We think it was more probably inserted in answer to the suggestion of Miss Moosdeen, who appeared for the 3rd Defendant at the trial, that the presence of the 3rd Defendant in the building was a mere coincidence which could not in any way be held against him.

8. The third ground of appeal was that the learned trial judge failed adequately to consider or to evaluate the material discrepancies in the evidence of the 7th witness, that is the constable who chased and caught the 3rd Defendant. Mr. Howard has taken us through the whole of the cross-examination of that constable to illustrate factors which he said should at least give us some cause of unease in regard to the reliability of that witness. In order to succeed on this point he would have to show that the constable was a witness on whom no reasonable judge could rely. With every respect to him, we are by no means persuaded that the constable fell into that category. The application for leave to appeal against conviction by the 3rd Defendant is therefore refused.

9. The evidence that the judge relied upon in finding the 4th Defendant guilty was confined to two matters. The first was the evidence of the constable who chased and caught him, and who again lost sight of him for only one second when he turned the corner of the corridor. The second was the statement that the Defendant made under caution after he was arrested. It is in these terms:

"Fa Chai asked me to come and it's only after I arrived I knew they came for robbery. When I got here Fa Chai asked me to act as a lookout at the entrance. Then the several of them ran down from the 10th floor and when I got down I saw Ah Sir, it has nothing to do with me."

It is suggested that the judge misunderstood that evidence, that it was not necessarily evidence of guilt, but could equally have been evidence of innocence, i.e. an entirely exculpatory statement. The judge did not consider this aspect, he took the statement blandly as a confession. This is perhaps not surprising, for it was taken in that sense by counsel who then appeared for the 4th Defendant. It is suggested, we think correctly, that the judge should nevertheless have considered the wording of the statement. However we have come to the conclusion that even had he done so, he would have come to the same conclusion that he did. We make this decision in the light of the context in which the statement was wade and having regard to the fact that at the trial the judge had no other explanation for the Defendant's presence in the building and that the cross-examination directed to the 8th witness is inconsistent with the argument put forward today. That cross-examination could only have been put forward upon the instructions of the 4th Defendant.

10. The other grounds advanced in the Notice on his behalf have not been pressed. For these reasons we refuse also the application on his part for leave to appeal.

Representation:

I.G. Cross & Patrick LI Crown Prosecutor for Respondent

William Howard, Q.C. & Miss Evelyn PAU (M/s Chan & Kong) for Applicant: YUEN Wai Shing

Christopher Grounds (M/s Lee & chow) for Applicant: FU Wing San