Li Siu-hing and Another v. The Queen

CACC000400/1982

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Coram: Sir Alan Huggins, V.-P., Leonard, V.-P. & Barker, J.A.

Date: 31 December 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This Appellant was the 3rd Defendant in the court below. He was charged on two charges of robbery (charges 4 and 5). He gave notice of application for leave to appeal against conviction. The single judge gave him leave to appeal not only against conviction but also against sentence. Counsel before us indicated that his client did not wish to appeal against sentence.

2. The argument on the 3rd Defendant's appeal against conviction centered on charge 5, in respect of which it was submitted that there was no sufficient evidence on which to found the conviction. It was common ground that the 3rd Defendant was not identified as one of the persons present at the time of the robbery, although at one point in his Reasons for Verdict the judge said that there was no doubt that both the 2nd and 3rd Defendants "were positively identified" and that ''it was not a question of seeing them for the first time, they had tea with the victims before the robberies" (sic). The 3rd Defendant was positively identified by the victim in the robbery alleged in charge 4 both as having been present at discussions before the robbery and as having taken part in the robbery itself. The victim named in charge 5 identified the 3rd Defendant only as a person who offered, as the alleged owner, to sell him some silver coins. That the judge did in truth appreciate this appears from a subsequent passage, where he said:

"[D3] was the one with the silver who wanted to sell it for cash. He was the one who told the victim he was to deal with him. The victim never saw the silver. It was a plan by D3, D2 and others to lure him to where he was robbed. The only reasonable conclusion that can be drawn, indeed, the inevitable conclusion is that D3 was there and actually participated in the robbery. I am satisfied beyond reasonable doubt on the facts that he did."

It was, however, conceded by counsel for the Crown that the conclusion reached in that passage was not "inevitable" and not justifiable. We agreed. We thought the learned judge might have become confused by reason of the somewhat haphazard approach he adopted to the evidence in his Reasons for Verdict: it would have been more helpful to him and to us if he had marshalled together either the evidence relating to each charge or the evidence relating to each defendant: in some places it was difficult to ascertain to whom a personal pronoun referred.

3. Mr. Mackay then pointed out that the judge expressly said that in convicting the 3rd Defendant on charge 5 he "relied solely on the facts supporting the charge and ignored the facts which implicated him so strongly in the 4th charge". Therefore, he submitted, there was no more against his client than evidence that he had been present when the coins were offered to the victim and that could not support the conviction.

4. Mr. Longley invited us to hold that the conviction could be sustained on a different basis. First he relied upon the evidence of the victim - believed by the judge - that during the discussions prior to the robbery the 3rd Defendant was introduced to him as the owner of the silver coins which were being offered for sale and said he was the owner and also upon the judge's rejection of the 3rd Defendant's own evidence that he was not so introduced and, by implication, was not the owner. It followed that the 3rd Defendant was found to be lying and there was no possible explanation of such lies other than that the 3rd Defendant had a guilty mind. In addition, the judge believed the victim's evidence that the 3rd Defendant introduced the 2nd Defendant into the discussions and exercised some measure of control over him. The 2nd Defendant was, to the judge's satisfaction, identified as one of the robbers. Although the 3rd Defendant contended that his association with the 2nd Defendant on the occasion prior to the robbery was fortuitous and innocent, contrary to the ruling of the judge it was, counsel argued, proper to have regard to the evidence relating to charge 4 as showing that the association, far from being innocent, was part of a conspiracy to lure victims to come with large sums of money to places where they could conveniently be robbed. We thought this approach was correct,

5. Mr. Mackay accepted that there was no ground upon which he could attack the conviction on charge 4 and we were satisfied that there was ample evidence to support it. Accordingly we dismissed the 3rd Defendant's appeal.

31st December 1982.