HKSAR v. Chan Chun Tak

CACC000010/1998

CACC No. 10 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 10 OF 1998

(on appeal from High Court Criminal Case No. 21 of 1997)

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Coram : Hon. Nazareth, V.-P., Mayo and Stuart-Moore, JJ.A in Court

Date of Hearing : 11 December 1998

Date of Judgment : 11 December 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 19th December 1997, following a trial before Stock J. and a jury, the Applicant was convicted of robbing Lai Ming-fai (the victim) of a quantity of computer equipment worth approximately $4.7m. He was sentenced to 11 years' imprisonment. The Applicant now seeks leave to appeal against conviction and sentence.

2. The facts are practically an irrelevance to this application so far as they concern conviction. There is only one substantive ground of appeal which complains of a misdirection by the judge on the issue of lies allegedly told by the Applicant which, it is submitted, have in turn led to the jury being misdirected as to the burden of proof.

3. This ground, together with seven particulars in support of the ground, is set out in identical language to that which was used in HKSAR v. Mo Shiu-shing Cr. App. 6/1998 in which this court gave judgment earlier this week, on 9th December 1998. Coincidentally, the trial judge was the same in both cases. It is not surprising, therefore, that the directions given in the trial which is the subject of the present application closely follow the directions given in Mo Shiu-shing. They have, of course, been adapted to apply to the very different facts in each case.

4. We can say immediately that there is nothing which distinguishes the present case from Mo Shiu-shing save that the matter presently before us was a case in which there was a defence of alibi and, to that extent, a full direction on lies was even more imperative than it had been in the former case. We have no hesitation, therefore, in saying that the present application is without the slightest merit.

5. We are, of course, bound by our decision in Mo Shiu-shing so that it should not have caused any surprise to Mr. Peter Wan, who appears for the Applicant, to learn that we regard the present application as groundless, having so recently decided the point which has been raised.

6. For the record it is right to say that directions on lies were given by the trial judge in the transcript from p.18E-21T inclusive. The judge left it to the jury to decide whether lies had in fact been told. He then dealt with how the jury should approach this topic which had been raised in three separate ways, the most important of which was concerned with 'alibi'. The judge carefully instructed the jury that they should not convict simply because they found that the Applicant had told lies. The judge went on to give time-honoured examples as to why people sometimes lie when they are not guilty of the offence. The judge gave a warning, in accordance with the standard direction, that even if the alibi was found to be false, this did not entitle the jury to convict. Again, the judge provided a number of examples why a false alibi might be advanced by an innocent suspect. The judge also directed the jury (at p.8H) that the prosecution had the burden upon them to disprove the alibi.

7. It is correct to say that the judge did direct the jury in the course of dealing with their approach to lies, that they could only support other evidence of guilt if they were spoken from a consciousness of guilt. The passages of which particular complaint is made are at p.20P-21K and I shall read them:

"If the defendant told the lie about his alibi, for example, you could only use it as support of other evidence suggesting he was there; if you were sure that he told the lie only because he knew he was not there, for example, because he thought it was a better story - a better alibi - than the real one, which could also prove he was not there. And you could only use the lie about the alibi if you were sure it was a lie - to support evidence that he was party to an actual robbery, if you were sure that he told the lie because he was conscious of his guilt as a robber, and not because he was conscious of, say, some other wrongdoing at the scene.

So, also, if he's told you a lie about the police beating and the circumstances of how he came to sign those statements, you could only use that lie to support the evidence that he was actually there at the scene of the robbery if you were sure that the only reason he told the lie about police treatment was because he knew he was at the scene and not for some other reason, and you could only use the lie about police beating if you found it was a lie to support evidence that he was party to robbery, if you were sure that the only reason he told the lie was because he knew he was party to robbery and not, for example, because he didn't want to admit to some other wrongdoing."

8. Mr. Wan for the Applicant has submitted that Stock J.'s directions to the jury, that they could use lies to strengthen the inference of guilt if they decided that the Applicant had not lied for an innocent or understandable reason but because he knew he was guilty of the particular offence, meant that the jury were effectively being directed that lies could be used to determine that the Applicant was guilty. In this way, he submits, there was not only a misdirection as to the use of lies in strengthening the inference of guilt but also as to the burden of proof.

9. We can only state again, for the reasons which have fully set out in Mo Shiu-shing, that the direction to a jury which suggests that they would have to be "satisfied the only reason the person lied was because he knew he was guilty of the particular offence" is more likely to confuse than if the phrase "no innocent reason for the lie" is used. Having said this, the full directions given by the judge that we have earlier attempted to paraphrase were, when set into that context, perfectly fair to the Applicant. In particular, the judge had pointed out that if lies were told from innocent motives, the jury should pay no attention to them. He went on to say: "a lie can never in itself, prove a defendant's guilt. It is not in itself evidence of guilt". Those directions were given immediately before the passage complained about.

10. The application so far as conviction is concerned is without foundation and, in the light of Mo Shiu-shing, without the barest scintilla of merit.

11. Turning now to sentence, this case involved an armed robbery in which a vehicle carrying computer equipment was hijacked by a gang which included the Applicant. The judge in passing sentence took a large number of matters into account and, paraphrasing from the transcript at p.84, the judge said this:

"It is a case in which no firearms were used and it is not a robbery in private premises or in a bank or jewellery shop ...... Nonetheless, (it was) a very serious robbery......

It required a considerable degree of planning. It was, by its nature, a plan which envisaged the use of violence and the kidnapping and abduction of the driver of the van. Research must have taken place into the timing of the vehicle's departure from its loading base, the route it would take and its likely contents.

A stolen vehicle was used to cut-in on the container truck to cause an accident and make the driver stop. It was envisaged that he would be bound and gagged and adhesive tape was to hand. False number plates were used. The gear lever of the van was protected from the leaving of fingerprints. Gloves were used.

A man, who did not travel to the scene in the intercepting van, was at hand elsewhere to drive the container truck away. The plan envisaged the hijacking of a container truck carrying expensive goods which were intended for export ......

It is a sophisticated and sinister crime aimed at high-takings and high-stakes.

It was (also) a robbery involving the participation of a number of robbers. It was a robbery which involved the use of a weapon - namely, a beef knife. It was a robbery in which actual violence was used. A knife was used to effect that kidnapping; the driver was gagged and blindfolded and tied up and then abducted."

12. The judge went on to take as his starting point 12 years' imprisonment. He described the Applicant as being someone who was not a mastermind behind the offence. The judge was satisfied that the Applicant was the driver of the van which intercepted the container truck, that the Applicant took part in bundling the victim into the van, and that the Applicant drove the van with the victim in it away from scene.

13. The Applicant was not a person who had a previous good character and the judge described him as having shown no remorse. In conclusion, the judge found that there was no real mitigation. It should be said that the Applicant was about 24 years old. Having regard to the various matters taken into account, the judge then imposed the sentence of 11 years' imprisonment.

14. Mr. Wan, in his first ground of appeal originally complained that the starting point of 12 years was manifestly excessive in the light of the guidelines set out in Mo Kwong-sang v. R. [1981] HKLR 610. Mr. Wan has today realistically accepted that this guideline case in respect of less serious armed robberies is of little assistance in a case of this gravity.

15. This Applicant belongs quite clearly in a higher criminal league. He may in his past have committed offences that made him a minor criminal. This offence promoted him to the first division with all the consequences that flow from being involved in major crime.

16. Ground 2 suggests that the judge erred in placing excessive weight on the aggravating factors in this case. All we need to say about this is that the judge would have been failing in his duty if he had not taken those factors into account.

17. Ground 3 is that the judge erred in failing to give sufficient discount for the Appellant's young age and the minor role involved. In our view, the Applicant is at a typical age for those who engage in this kind of violent crime.

18. This offence wholly merited the lengthy sentence imposed on the Applicant in the opinion of this court. If any support was required for that proposition, which clearly it does not, R. v. Lam Bun Cr. App. 286/1989, which Mr. Albert Wong has helpfully provided in his list of authorities, is a case which was very similar.

19. This application in respect of sentence is also without the slightest merit and we have no hesitation in dismissing it.

Representation:

Mr. Albert Wong, S.G.C. for DPP/Respondent.

Mr. Peter W.S. Wan instructed by D.L.A. for Applicant.