The Queen v. Wu Kam Ming and Others

CAAR000015A/1986

BETWEEN

Coram: Hon. Li, v.-P., Yang J.A. & Power J.

Date of Hearing: 29 October 1986

Date of Judgment: 25 February 1987

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JUDGMENT

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Li, V.-P.:

1. The 7 respondents (D1 - D7) were indicted originally for a total of four counts of conspiracy to commit burglary. The 1st count alleged that all 7 respondents conspired with Wong Kwai Wah and 3 others between 1st March 1981 and 29th October 1985. The 2nd count alleged that D1 and D2 conspired with Wong Kwai Wah and Chan Po Wai between 1st March 1981 and 30th June 1982. The 3rd count alleged that D1 and D3 conspired with Wong Kwai Wah and two others between the 1st June 1983 and 30th may 1984. The 4th count alleged that all 7 respondents conspired with Wong Kwai Wah and Chung Yiu riling between 1st June 1984 and 29th Cctober 1985. Each of the 2nd, 3rd and 4th counts was an alternative count to count 1. In the event all 7 respondents were acquitted of counts 1, 2 and 3 but convicted of count 4.

2. Upon conviction it was found that D3, D4 and D6 had a clear record. D2 had a previous conviction of robbery, D5 had previous conviction of several burglaries and D7 also had previous conviction of burglaries. The trial judge took account of the clear record of D3, D4 and D6. He disregarded Dl's previous conviction but took into account the record of D2, D5 and D7. He noted that D1 and D3 were in this conspiracy as from the 1st June 1984, D2 from February 1985, and that D4, D5, D6 and D7 were involved on 29th Gctober 1985, i.e. the last day. He said:

The jury obviously accepted the evidence of the accomplice as being credible. They took into account as corroborative evidence the matters which happended on the 29th October.

He sentenced Dl, D2 and D3 each to 4 1/2 years imprisonment, D5 and D7 to 3 1/2 years and D4 and D6 to 3 years.

3. With leave granted by the Acting Chief Justice the Attorney General applies to this Court for review of all the sentences on the ground that they are manifestly inadequate and wrong in principle.

4. Mr. Hodge for the Crown contended that according to the accomplice Wong Kwai Wah (who was granted an immunity to give evidence at trial) there were no less than 98 burglaries committed within the period between lst June 1984 and 29th October 1985. Dl and D3 were involved in the whole period and D2 joined them from February 1985. D4, D5, D6 and D7 entered the conspiracy on the last day on which 8 burglaries were committed. The burglaries were committed in a highly professional and sophisticated manner - well planned and facilitated by walkie-talkie radios and several cars. The Judge failed to take into account the total value ($1 million) and nature of the property taken. Further. in relation to D2, D5 and D7 no sufficient regard had been paid to their previous records of similar offences.

5. Mr. Westbrook, for respondents 1, 2,3 & 7 , argued that by their verdict the jury could. only be understood to have rejected the accomplice Wong's evidence except where corroborated by police evidence - such evidence being that the 7 respondents were observed by a police sergeant to have left the Ka Wor Motor Co to return in the afternoon with the stolen property. They were caught in the manager's office by the police together with the spoils of their crimes committed on the 29th October 1985. Otherwise the jury would have convicted D1 and D2 of the 2nd count and D1 and D3 of the 3rd count, both of which depended entirely on Wong's evidence without corroboration. Since the jury merely convicted all the respondents of 4th count the only logical conclusion was that they accepted Wong's evidence only in respect of the 8 burglaries committed on the 29th October 1985 on the basis that the conspiracy lasted only 1 day. His alternative argument was that where the jury's verdict was susceptible to two or more interpretations the sentencing judge must impose his sentence on the basis of the interpretation most favourable to the accused.

6. Mr. Hodge contended otherwise. He said that the issue that the jury's verdict could only be interpreted as their rejection of Wong's uncorroborated evidence was not even raised by Mr. Westbrook in his address to the trial judge in mitigation. The plea was made upon the basis that the jury's verdict was equivocal. He said that in such event it was for the sentencing judge to find facts provided such facts were supported by evidence and consistent with the verdict. He conceded that in the present case the jury's verdict was consistent with finding either

He proceeded to argue that on the evidence before the Court the judge was justified in adopting the approach in (a). He cited in support of the proposition the case of Reg. v Kwok Yau Shing ⁽¹⁾. In that case Rigby S.P.J., (as he then was) said (p.673).

Where the verdict of the jury is equally consistent with either conclusion, it may well be - although we refrain from expressing any view - that the judge is entitled to take a more serious view of the facts, and sentence accordingly. But where the verdict of the jury is only logically consistent with the view that in arriving at their verdict they must have accepted, whether in whole or in part, the evidence of the prisoner as to provocation or self-defence, or that it might reasonably be true, we do not think it is open to a trial judge, by the sentence that he imposes, virtually to disregard. their view and to give no effect to it.

In Reg. v Chan Kai-lun ⁽²⁾ where on an indictment of murder the jury convicted. of manslaughter McMullin J., (as he then was) delivering the judgment of the Full Court said (p.47):

Whatever the logical processes of the jury may have been in determining the issue as to provocation we see no reason to say that the judge in passing sentence was other than fully justified in describing the case as a very serious one and in passing sentence in accordance with that view.

7. Counsel said that the commentary contained in 1984 Current Saw Review 433-436 also supported the proposition. Referring to the cases of Solomon and Triumph as well as Frankum the editor wrote (p.436):

Where the verdict is equally consistent with one or more versions of the facts, the sentencer is entitled to reach his own conclusion as to which version of the facts will be adopted for the purpose of sentence.

In R v Whittle ⁽³⁾ it was held that

the judge in sentencing was not bound to assume that the jury had convicted on the basis of the smallest degree of violence that would. justify the conviction. He was entitled to make his own findings of fact consistent with the verdict.

He also referred to Thomas on the Principles of Sentencing (2nd edit), Salhany on Canadian Criminal Procedure (4th edit) and Cross on The Lnglish Sentencing System (3rd edit). There did not seem to advance counsel's argument much further.

8. The principle is clear. When the jury's verdict is clear the sentencer must follow the verdict. Where the sentence is equivocal the judge in sentencing may find the facts provided such facts are supporter by evidence. There still leaves the question whether the judge is obliged to find the facts most favourable to the convicted person. But in R v Harris ⁽⁴⁾ Lowe J. of the Supreme Court of Victoria said:

The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts.

Then he said (p .237):

Mr. Oroxford, for the applicant, indeed submitted that the presiding judge was bound. to take the most lenient view of the facts which would support the jury's verdict. On inquiry by the court whether he knew of any authority to support his contention, he said he knew of none, nor does any member of the Bench know of any authority to that effect. We think there is no foundation in law for such a proposition.

The case of Harris found support in a series of Australian cases: Reg. v Haselich ⁽⁵⁾; Laporte v R ⁽⁶⁾; R v Bedington ⁽⁷⁾; R v Webb ⁽⁸⁾; Veen v The Queen ⁽⁹⁾.

In Stosiek ⁽¹⁰⁾ Watkins Li said (p.207):

So the judge was left in a state of ignorance about how the jury came to their conclusion. It is possible that they concluded that the appellant really did know that he was hitting a man whom he recognised at that time as a police officer, having been told so. It is equally possible, so it seems from the papers, that the jury convicted upon the basis that he had violently over-reacted to what could be said to have been a technical assault upon him by a person whom he did not know was a police officer.

In those circumstances, the court has to be extremely astute to give the benefit of any doubt to a defendant about the basis on which a jury has convicted.

This was a case nearest to the opposing proposition. But in that case Stosiek ⁽¹⁰⁾ was never charged with assaulting a police officer. It appeared that the verdict was clear. It did not go as far as compelling a judge to take the view most favourable to the accused. in the event of an equivocal verdict. In Hudson ⁽¹¹⁾ Shaw LJ said (p.131):

In our judgment, the jury by finding the appellant guilty of manslaughter, but not guilty of murder, must be taken to have accepted the less violent of the two alternative versions of the struggle between the appellant and the deceased. This being so, the appellant should properly be sentenced on the basis that Mr. Sutton met his death unluckily when knocked down by a blow from the fist, rather than being directly killed by a brutal assault.

9. Mr. Westbrook placed great reliance on two decisions of this Court. In Chau Chi-ming v The Queen ⁽¹²⁾ the appellant was convicted of wounding with intent. The prosecution case was that he was a participant to a brutal attack. The appellant's case was that he merely pushed the victim away by assisting his friends. In the circumstances Huggins J.A. (as he then was) said (p.467):

As to the sentence, however, we think we ought to take the view of the evidence which is most favourable to the Appellant. It was, as the judge said, a cowardly thing for the Appellant to do to hold the victim so that the others could hit him with a pole and a pipe, but it is strongly in his favour that he reacted as he did to the use of the knife and it is important that the most serious harm which in the event resulted to the victim must have been caused by the knife. We think justice will be done if we allow the appeal against sentence and substitute a sentence of eighteen months' imprisonment.

In Yuen Man Chiu v The Queen ⁽¹³⁾ the learned Chief Justice said (p.16):

In assessing the seriousness of this offence, it is proper to take, in favour of an accused, that reading of the evidence which is most favourable to him. It would, in view of our findings, be possible to say that he was not a leading actor in the unfortunate events which led to this conviction but that he was activated more by friendship and weakness than by a sustained criminal intent.

Finally in Wong Chi Kwok v The Queen ⁽¹⁴⁾ McMullin VP said (p.19):

It is clear therefore that the sentences were imposed upon the basis that the jury's finding was to the effect that the applicant was equally involved as any of the other persons who plainly had set up a forgery factory in those premises.

Mr. Westbrook points out that there were two possible bases upon which the verdict of the jury could have been sustained, the alternative one being that he was, as he protested, a mere custodian of premises in which the illegal activity was going on. We think that is a substantial point. Both in Chow Chi-ming ⁽¹⁵⁾ , the appellate courts took the view that where two possible views of the activities of an accused person were available, either of which was sufficient to sustain a conviction, the sentencing court should take the view most favourable to the defendant.

10. A review of those cases indicates that whenever the sentencing judge took the view most favourable to the accused there was some evidence either from the accused himself or in the prosecution case as presented to the jury. The judge is entitled to sentence the accused in accordance with the facts of the case. This is in keeping with the principle that the sentence should be consistent with the jury's verdict and supported by evidence. Every case must depend on its merits. In the case of Wong Chi Kwok ⁽¹⁴⁾ (supra) the accused gave evidence that that he was a mere care-taker and prosecution evidence did not negative that. It was in those circumstances that this Court held the sentencing judge should take the view most favourable to the accused. In the present case none of the accused gave evidence.

11. The jury were clearly not prepared to rely upon the uncorroborated evidence of the accomplices with regard to the lst, 2nd and 3rd counts. As regards the 4th count, the Crown was again asking the jury to rely upon the evidence of the accomplice which was, however, corroborated. by the evidence of the police officers as to the events preceding and immediately after the robbery on the 29th October. It was the Crown case that there was corroboration of the accomplice's evidence in a material particular, i.e. that part of the conspiracy which related to the Bamboo Grove burglaries on the 29th October, and that this corroboration was such as would satisfy the jury that that his evidence as to that whole conspiracy could be relied upon. The judge, after summarising the police evidence of surveillance and arrest, gave the following direction to the jury:

Now all these taken together could corroborate Wong's evidence of what happened on the 29th October - in other words, that they were involved in the Bamboo Grove burglaries, all seven of them in the circumstance in which they were founds .It could also, members of the jury, go to support Wong's evidence of a conspiracy to burgle, at least on the 29th of October, because, obviously, a lot of preparation would have to have gone into the adventure on that day: the three cars leaving the Ka Wor Motor Company area and going out rendezvousing, I suppose, somewhere else and coming back, so that there would obviously have to be some arrangement for going out on that day so that the evidence that I have just referred to above would go to support Wong's evidence that there was a conspiracy in which all seven accused were involved on the 29th of October.

12. The judge was here, in clear terms, directing the jury that they were entitled, should they see fit so to do, to act upon the evidence of Wong only insofar as it was directly corroborated as to the occurrence of a conspiracy relating to the burglaries of the 29th of October.

13. The jury returned a verdict of guilty as charged on the fourth count. There was no indication from them as to whether they had accepted that the evidence established a conspiracy from 1st June 1984 to the 29th October 1985 or whether they were satisfied only as to a conspiracy in relation to the final burglaries on the 29th October 1985.

14. The judge when he came to sentence said:

The sentence on the first three accused, that is, accused 1, 2 and 3, they have been charged with the conspiracy to burgle and they entered the conspiracy at different times, according to the evidence, accused 1 and 3 on the 1st June and accused 2 in February 1985, they were charged with conspiracy to burgle over that period. The evidence supporting the charge was given by an accomplice. The jury obviously accepted the evidence of the accomplice as being credible. They took into account as corroborative evidence the matters which happened on the 29th of October.

In the case of accused 4, 5, 6 and 7, the verdict of the jury and the evidence of the accomplice indicated that their implication was confined to the 29th October as joining and on-going conspiracy to burgle, and in which their participation involved agreement to go out to burgle on the morning of the 29th October, and actually carrying out the burglaries in Bamboo Grove. So there is a distinction between the two groups.

15. The judge clearly took the view that he should sentence upon the basis that the jury had accepted the evidence of the accomplice as establishing a conspiracy over the whole period charged. The judge had instructed the jury that they were entitled should they see fit so to do to accept the evidence of the accomplice only insofar as it was directly corroborated as to a conspiracy to burgle on the 29th October. Given that the jury had not been prepared to act upon the uncorroborated accomplice evidence on Counts 1, 2 and 3, the likelihood must be that they were not prepared to act upon his evidence where it was uncorroborated as to the events prior to the 29th October and that having heeded the direction of the judge set out above, they were only satisfied to accept the evidence of the accomplice insofar as it went to establish a conspiracy relating to burglaries at the Bamboo Grove building on the 29th October.

16. It was not, we are satisfied, proper for the judge, in the circumstances of this case and, in particular, given his direction to the jury set out above, to have acted upon the basis that the jury must have accepted all of the evidence of the accomplice. This being so could the matter, nonetheless, properly be regarded as one where the jury had returned an ambiguous verdict. If so, Mr. Westbrook, for the 1st, 2nd, 3rd and 7th respondents, argues that the judge would have been bound to take the view of the facts that was most favourable to the accused. Mr. Hodge, for the Crown, contends that, in such circumstances it would have been for the judge to make his own assessment of the facts. Mr. Westbrook as we have already indicated relies upon the unreported decision in Wong Chi-kwok v R ⁽¹⁴⁾ where McMullin J.A., delivering the judgment of the Court of Appeal, relying upon two earlier Hong Kong cases, held that the sentencing court should take the view most favourable to the defendant. An examination of those two cases does not, however, indicate that they give unequivocal support to such a view and further, the court in Wong's case was not referred to any of the numerous authorities which indicate that, where there is an ambiguous verdict, the court should form its own view of the facts when deciding how serious was the crime committed. Further, the court was not referred to the earlier decision of Mr. Justice McMullin himself in Chan Kai-lun v R ⁽²⁾ in which he appears to have accepted, when giving the judgment of the Full Court, that the sentencing judge may come to his own independent determination of the relevant facts. It might well be argued that the decision in the case upon which Mr. Westbrook relies was delivered per incuriam.

17. It is not, however, necessary in the present case to hold that this was so as we are satisfied that on the facts ac we set out above, this was not a case where the judge could take the view that there had been an ambiguous verdict. He should have considered himself bound to take the view that the likelihood was that the jury had refused to accept the evidence of the accomplice at all except where it was directly corroborated and that they had not, therefore, been satisfied that the conspiracy running from June 1984 to October 1985 had been proved.

18. Given that the trial judge should have sentenced upon the basis that the conspiracy proved was one which related to the final burglaries at Bamboo Grove on the 29th October 1985, can it be said that the sentences were manifestly inadequate and wrong in principle.

19. The sentences passed were, in our view, at the lower end of the proper range. However the sentences were only argued by the Crown to be manifestly inadequate and wrong in principle upon the basis that the judge was right when he stated that the jury obviously accepted the evidence of the accomplice as to the events throughout the period of the fourth charge. There was no argument addressed to us submitting that we should interefere with the sentences if the proper basis of sentencing was that the conspiracy related only to the final robberies at Bamboo Grove. In the circumstances, although the sentences passed were at the lower end of the proper range, we are satisfied. that it would not be right for us to interfere therewith.

(1)    (1967) HKLP 664

(2)    (1971) HKLR 45

(3)    (1974) Crim. L.R. 487/8

(4)    1961 V.R. 236

(5)    1967 Queensland L.R. 183

(6)    1970 WAR 87

(7)    1970 Queensland L.R. 353 at 364

(8)    1971 VR 147 at 152

(9)    1979 ALJR 305 at 317/8

(10)    1982 4C AR(S) 205

(11)    1979 CAR 130

(12)    (1977) HKLR 466

(13)    CA No. 399 of 1980

(14)    CA 545 of 1980

(15)    [1977] H.K.L.R. 466 and in Crim. App. 399 of 1980

Representation:

Mr. Simon Westbrook (D.L.A.) for Dl, D2, D3 & D7

Mr. John Necholas (D.L.A.) for D4, D5 & D6

Mr. Hodge, Mr. Casewell for Crown