Read the full judgment text of CACC 000036/1992 on BabelCite. This Court of Appeal judgment was delivered on 23 July 1993 before Power VP, Nazareth JA, Bokhary JA.
Criminal law – robbery – possession of an explosive substance – home-made bombs – cautioned statements – whether trial judge's direction on confession evidence was fair and adequate – whether trial judge failed to summarise defence fairly – sentencing disparity between co-accused sentenced by a different judge – whether 13-year total sentence was manifestly excessive – Applicants convicted after trial before Wong J. and a jury of robbery of the Kam Fuk Goldsmith Shop in Tuen Mun and of possession of an explosive substance – On 1 August 1990 three masked men, two armed with 18-inch beef knives, stole over 80 gold ornaments worth more than HK$130,000; two home-made bombs were carried, capable of causing serious personal injury if detonated – The only evidence against each applicant was his own confession – Each alleged that his statement was obtained through police assaults, threats or (in D3's case) an inducement to become a Crown witness, which the police denied and the trial judge rejected on the voir dire – Held (Power VP, Nazareth and Bokhary JJA), considering the summing-up as a whole, the trial judge's direction on the confession was not unfair or inadequate; the passage in which the judge said suspects often confess and then later allege they were forced, although not ideal, did not in context upset the requisite balance of fairness and was consistent with the established approach in Chan Wei Kwong v R and Prasad v R that the jury must assess the probative value of a confession by reference to all the surrounding circumstances, including allegations of force – Held further, the trial judge did not fail to put D3's defence fairly to the jury: D3's evidence on the circumstances of his statement spanned some ten pages and was given on 13 and 14 January, immediately before counsel's addresses and the summing-up on 16 January, and was therefore fresh in the jury's mind; in substance the alleged inducement (protection as a prosecution witness) was indistinguishable from the violence and threats already referred to, so the jury could not have overlooked it – Held, on sentence, that disparity between the 13-year overall term imposed on Yip Chin-pang and the 8-year term imposed on co-accused Lai Po-chuen by Deputy Judge Sharwood after a guilty plea did not of itself justify interference, since a different judge had sentenced the co-accused; the court would look instead to whether the sentence was unduly severe on its own facts – Held, the 13-year overall term was in no way too severe: this was a well-planned and organised robbery involving weapons, the terrorising of persons in the shop, an intent to steal a large quantity of valuable jewellery, and the carriage of home-made bombs that put the public at considerable risk, calling for severe sentences – Leave to appeal against conviction granted to all three applicants but the appeals against conviction dismissed; applications for leave to appeal against sentence dismissed.
Legal issues: Adequacy of trial judge's direction on confession evidence · Whether the trial judge failed to fairly and adequately summarise the defence · Sentencing disparity with co-accused Lai Po-chuen · Whether the 13-year total sentence was unduly severe
Outcome: Leave to appeal against conviction granted to all three applicants but appeals against conviction dismissed; applications for leave to appeal against sentence dismissed.