The Queen v. Cheng Hei-ming

CACC001023/1983

BETWEEN

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Coram: Hone McMullin, V.-P., Li & Silke, JJ.A.

Date: 10th January, 1984.

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JUDGMENT

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McMullin, V.-P.:

1. A robbery occurred at the lift lobby of the 9th floor of the park-in commercial building at Dundas Street on the 6th of January, 1982. Two security guards Chan Nai-hip and Cheung Kam-wan were taking some cash and cheques from premises of the Transport Department in that building, on the morning of that day. They were carrying between them a box in which was contained cash to the amount of $453,785.00 and $250,000 odd in cheques. They were approached by five men immediately outside .those premises and knife was used to cut a strap holding the box in the course Of that minor injuries were received by one of the guards We are told.that some other injuries were caused to one of the guards which resulted his hospitalisation and eventually caused him to suffer a serious mental condition. But there was, as we understand it, no evidence to show which particular injury was inflicted by any one of the particular persons involved. The assailants made away with this property and they were not arrested until January 1983. All five defendants who were eventually taken before the court were arrested on the 25th and 26th of January in that year.

2. The case against each of them appears to have rested primarily upon a confessional statement. There were lengthy proceedings by way of voir dire which resulted in the admission of all of those statements. At that point, the 1st defendant Cheng Ping-yau, the 4th defendant To Yan-kwong and the 5th defendant Cheung Hung-lee reversed their Not Guilty pleas and the 5th defendant subsequently gave evidence for the prosecution.

3. At the same stage of the proceedings the 3rd defendant absconded and we know nothing further about his subsequent history.

4. The only person, therefore, to sustain the Not Guilty plea was the present applicant Cheng Hei-ming. The case against him rested upon his confessional statement and the evidence given by his former co-defendant Cheung Hung-lee. It may be said that, taken upon its face value, the confessional statement was quite sufficient evidence to support the conviction. The Judge warned the jury carefully concerning the possibly tainted nature of the evidence of the former co-defendant. He pointed out that the statement, provided the jury were satisfied that it was the truth,afforded corroboration of that evidence.

5. Mr. Mackay, who appeared at the trial for the applicant, takes a single ground of appeal before this courts That is phrased as follows: The learned Judge erred in requesting the defendant to make a statement from the witness box at the conclusion of his cross-examination, notwithstanding that defence counsel informed the court that he intended not to re-examine the defendant."

6. The matter came about in this way. The applicant was cross-examined in relation to the allegations he had made concerning the manner in which he said the statement which formed the principal body of evidence against him had been taken. He was also asked certain questions about two minor convictions which he had and mention of which had been introduced, quite properly, at the instance of defence counsel. What his evidence.throughout that cross-examination shows is that he became increasingly agitated, and his replies to questions put to him.in cross-examination became progressively longer and more combative in natures The Judge intervened on some occasions but we .are satisfied that the greater number of those interventions were simply for the purpose of clarification of answers which had become complicated.

7. Nevertheless, the Judge clearly, and for good reason, had formed the opinion that the defendant was anxious to make some form of statement which would bring what he felt to be his principal grievances in relation to the evidence led against him to the fore. The final interjection by the Judge close to the end of cross-examination goes as follows "Mr. Cheng, you listen now. The convictions were brought up by your own counsel, Crown Counsel is at present not in the least concerned with your conviction which relates to being in possession of a forged driving licence - Crown counsel is asking you whether or not you were previously convicted on three counts of giving false information to the police. Do you admit or do you deny?" To that the applicant replied "Yes, I admit. I just want to ask you whether or not you understand. What I am trying to say is a person may have been convicted for petty offences but it doesn't mean to say that he was a robber or a culprit." There were .a few further exchanges which are of no concern. Miss Crebbin who appeared for the Crown then said that she-had no further questions and `Ire Mackay declined to re-examine.

8. At that point, the Judge intervened - immediately after he had been informed by Mr. Mackay that the latter did not wish to be re-examined - and he said: "Mr. Cheng, do you have anything that you want to say - you say that you had been sized up - because your own counsel is not going to ask you any question." The defendant said he had a lot more to say, and the judge asked him what it was he wished to say There was then a comparatively lengthy statement made by the defendant and this was followed by some short questions put by the judge, each of which attracted a further lengthy reply. Those replies indicated that the defendant was indeed in a somewhat agitated condition and we are informed by Mr Mackay that very obviously that was so. The point that counsel makes is that it is peculiarly within the competence of counsel, in all the ,circumstances of the case, and having regard to the manner in which crossexamination has gone, to decide whether re-examination would be profitable, or whether it might be counter-productive. In effect, he says that in inviting the defendant to say something further, the Judge, with the best possible motives, as counsel concedes, had brought about an unfortunate situation by causing the defendant to give vent to answers in such a manner and at such length-that the jury may well have formed a very unfavourable impression of him.

9. We think that this intervention by the Judge was somewhat unfortunate. It is within the proper province of counsel to decide whether to re-examine his client. It is of course always proper for the Judge, if he wishes to do so, to put questions to any witness, including an ,accused person, if there are matters which he thinks require further illumination. But the manner in which the intervention went on this occasion was, in effect; an invitation to the defendant to say something, to make a statement. We think that, although it was impelled by a sincere endeavour to see that the defendant had full opportunity of ventilating his grievances, that was a course which should not have been taken. With that said, we need only add that we do not regard this as having in any degree adversely affected the decision to which the jury came and we cannot regard it as being a ground of such substance as to require any intervention on the part of this court. The application for leave to appeal against conviction is therefore refused.

10. The defendant has addressed us on the question of sentence. He received a sentencer of 12 years imprisonment and he points out that the other defendants who had pleaded guilty, although at a late stage, received many much shorter sentences of imprisonment. The defendant, the 5th defendant who gave evidence against him received a very considerable discount, the sentence in his case was one of five years only. The Judge accounted for this large discount in the following way He said that persons grouped together to carry out robberies such as that committed in this case must come to learn not only that they run a grave risk that one of their number may before the trial be granted immunity from prosecution but that, even during the trial itself, there is the ever present danger that one of them may become a prosecution witness. This he regarded as a powerful deterrent to any one minded to become involved in a serious crime.

11. Those observations are fully adequate to account for the discount given in the case of the 5th defendant. It may be that the discount given in respect of the other defendants who attracted sentences of 9? years and 10? years was generous in the circumstances, but we cannot - in view of the nature of the robbery - say that a sentence, of 12 years was in any way excessive or such as to support the plea of a justified grievance and impel this court to interfere. The application in respect of sentence is likewise refused.

Representation:

Mr G.Mackay (D.L.A.) assigned for Applicant.

A. Hodge for Respondent/Crown