The Queen v. Lau Yuk-ming and Others

CACC000232/1986

IN THE COURT OF APPEAL

BETWEEN

_________

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

Date of hearing: 24th October 1986

Date of delivery of judgment: 24th October 1986

___________

JUDGMENT

___________

Power, J.

1. Originally the 2nd, 3rd and 5th accused appealed against conviction on a charge of burglary. Only the 5th accused is pursuing that appeal. There were five accuseds at the trial. It was alleged that they had entered, as trespassers, a company known as the UCS Electronics & Development Ltd. at Room 2001, Witty Commercial Building and stolen therefrom a number of computer components.

2. The evidence was that those premises had been broken into on the 26th November 1985 and a number of computer components were, the following morning, found to be missing. It was not until the 24th December 1985 that police officers arrested the five accuseds. They did so after sighting a goods vehicle being driven by the 4th accused and after, eventually, arresting the 3rd accused and taking him to his flat where a number of the missing computer components were found and where they arrested the other four accuseds.

3. The fifth accused now appeals against his conviction which was founded almost solely upon two confessional statements. The learned trial judge held that the two statements taken together constituted a confession to burglary. Mr CHENG Huan who appears for the 5th accused has urged before us that the trial judge should have rejected these two statements. He refers firstly to a discrepancy which he says exists as to time. He submits that there was a gap between 12:30 a.m. when a search of the 3rd accused flat was said to have ended and 12:45 a.m. when the statement was, according to the time noted thereon, commenced to be taken from the 5th accused. He suggests that this gap should have raised doubts as to whether or not the statement had been given voluntarily. It was the evidence of the 5th accused in the voire dire proceedings that between 12:30 a. m. and 12:45 a.m. he had been threatened and it was the case for the defence that the reason that the gap existed was because the police officer had not, naturally if this was so, been prepared to write down anything which would indicate that there was any conversation at that time.

4. Firstly it must be asked was there a gap at all? It is certainly not a gap in the sense that there was a period of time that was not covered by police evidence. It was the evidence of the 5th accused and the police officer PW3 that they were together at the relevant time. What there was, if there was anything, was a discrepancy between the evidence of the sergeant, who said the search of the flat ended at 12:30, and the written note which stated that the statement commenced at 12:45.

5. However when the evidence is looked with care one realises that there was no evidence to establish that the sergeant's evidence that the search had ended related in anyway to the time when an instruction was given by Senior Inspector Ma to PW3 to take the 5th accused into a room and take a statement from him.

6. Further if there was any time gap, and this was not established, it was a very short one.

7. We fully appreciated what has been said by Mr CHENG Huan that it is for the Crown to satisfy the Court beyond reasonable doubt that the statement was given freely and voluntarily but there is nothing in the evidence here to indicate that there was any significant gap. This whole matter was drawn to the attention of the trial judge who had heard the witnesses and who was clearly satisfied, bearing it in mind, that the statement was freely and voluntarily made. We see nothing that calls for interference in that finding.

8. The second ground urged by Mr CHENG Huan was that the trial judge was wrong when he said that, if the statements were read together, they provided evidence to support the charge of burglary. Mr CHENG Huan says that the statements read together do no more than established that the 5th accused entered the Witty Commercial Building, which he says, he had every right to do so as he was employed in a shop therein. We cannot accept this submission. The statements must be read as a whole together with the preamble thereto. When this is done it is quite clear that the 5th accused was admitting that he had taken part in the offence. Indeed, even if the statements were read as Mr CHENG Huan urges that they should be, they still contain admissions sufficient to establish that he was a principal offender as they establish that he knew that the burglary was to take place; that he indicated his willingness to assist and that he did assist in the removal of goods from the premises. Again we see nothing in this ground that would be sufficient to warrant our interference.

9. Grounds 3 and 4 really have already been dealt with when dealing with ground 2. The application is refused.

10. Five person were originally charged with the offence of burglary, the 1st accused pleaded guilty to that charge, the 2nd accused after trial, was found guilty of handling and the other three accuseds after trial were found guilty of the offence charged. The trial judge when sentencing the let accused took into account that he had pleaded guilty. He took into account that he was 22 years of age and was also impressed by, what he described as, a very favourable probation report. The Probation Officer indicated in that report that he was willing to try probation supervision. The judge, bearing in mind all of these matters and also that the defendant had had experience of custody while awaiting sentence, considered that it would, nonetheless, not be proper, because of the seriousness of the offence, to place the defendant on probation, but that he could properly order that the custodial sentence imposed be suspended. The accused was fortunate, in our view, to have had this sentence suspended but we appropriate fully the reasons why the judge took this course. The accused had pleaded guilty and had a genuine sense of remorse. The judge was clearly satisfied, given the probation report, that this was a person who could safely be sent straight back into society.

11. The 2nd accused, one of the three appellants with whom we have to deal, is 30 years of age, also, has a clear record. He was convicted, after trial, of the offence of handling. The trial judge remarked that this accused could have pleaded guilty to the alternative offence of handling but chose not to do so. This was an unfortunate remark as it was never open to the accused to plead guilty to any alternative offence and crown counsel, before us, agrees that the Crown would not have been agreeable to his entering such a plea. Even so, we think that this remark should not be given too much weight as it is clear that the 2nd accused was, throughout, denying not only the charge of burglary but also, implicitly, denying that he was guilty of handling.

12. Mr Stirling who appeared for this accused said that he had, having been sentenced to imprisonment for 18 months, a real and justified sense of grievance given that the 1st accused who it would appear from the facts played a prominent part in the actual burglary, been given a suspended sentence.

13. The 3rd accused also appeals against his sentence which was imprisonment for 2½ years. He took issue firstly with the fact that the trial judge had, when setting out the reasons for sentence pertaining to the 1st accused, described him as a ring leader and Mr Westbrook, who appeared for him, submitted that there was no evidence to establish that he was a ring-leader and that he had never made any admission to that effect. It was unfortunate, in our view, that that term was used. It was, however, not used by the judge when he came to set out the reasons for sentence pertaining to the 3rd accused. There he said that that accused had taken "a major role" in the offence. This was a perfectly proper observation. He also pointed out that the culpability of this accused was aggravated by the fact that he was a supervisor of the security company guarding the building containing the burglared premises. These matters were properly taken into account. This accused complains, however, that he was treated not simply as a person who took a major role but as a ring-leader.

14. The 5th accused who was sentenced to 18 months, and is represented by Mr CHENG Huan, adopts the same attitude as the 2nd accused saying that he has a real and justifiable sense of grievance because of the way in which the 1st accused was treated.

15. The 1st accused as we have remarked was fortunate that he had his sentence suspended. However, he does presently have hanging over his head a suspended sentence of imprisonment for one year. We have no doubt that the 3 accuseds who are appealing do feel a sense of grievance but is it a justifiable sense of grievance such as would require the intervention of this Court? We look at the sentences themselves and are satisfied that, leaving aside the sentence passed on the first accused, the sentences of 18 months passed on the 2nd accused and the 5th accused were perfectly proper sentences. As far as the 3rd accused is concerned, we are satisfied that he did take a major role in the offence of burglary, that he was guilty of a gross breach of trust and that, although the differential of one year between himself and the other two was a substantial one, it is nonetheless, not so large as would call for the intervention of this Court. We consider that his sentence of 2½ years leaving aside again the sentence passed on the 1st defendant, was a quite proper one.

16. Should we, given the sentence passed on the lst defendant, and given the submissions made to us find there is a justifiable sense of grievance interfere. Having considered the matter with care, we are satisfied that we should not. There may be a sense of grievance but in the circumstances, given particularly, that the 1st accused pleaded guilty and that he showed a real sense of remorse, we are not satisfied that there is any justifiable sense of grievance which warrants this Court's intervention. The applications are therefore refused. Mr Stirling.(

Representation:

Mr Stirling (inst'd by R.J. Oliver & Go.) for the 1st Applicant

Mr Simon Westbrook (inst'd by C.K. Mok & Co.) for the 2nd Applicant

Mr CHENG Huan and Mr Joseph Tse (inst'd by Y.K. Poon & Co.) for the 3rd Applicant

Mr Bruce (Crown Prosecutor) for the Respondent