The Queen v. So Chi Wai

CACC000433/1989

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Penlington, J.A. & Jones, J.

Date of hearing: 13 August 1990

Date of delivery of judgment: 13 August 1990

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JUDGMENT

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. On the 17th of August last year the victim of the offences we are concerned with, a lady who lived alone in a flat in MacDonnell Road, returned home sometime after 11 o'clock in the evening. She went to the roof for a quick look at her garden there and as she came down the telephone rang in her bedroom. Going to answer it  there she was pounced upon by two men with stockings over their faces.

2. Eventually they robbed her of $2,000 and a camera. But not content with that they blindfolded, gagged and bound her, placed a knife at her throat. They forced her to swallow pills and then cut or ripped away all of her clothing.  They further indecently assaulted her. At that stage she lost consciousness, to come round sometime later when the men had left her flat. She found herself still blindfolded, gagged and bound but she managed to free herself and contacted her friends. For fear of publicity she did not report the incident at that time. Instead she moved out of the flat to stay with friends, and there the matter rested for a short while.

3. In September she suddenly found herself being blackmailed with the threat of a video film which was said to have been acted by her on the night of the 17th August. She then did report to the police and they, by monitoring appropriate telephone receivers, were able to arrest one of the men concerned in the act of actually telephoning her, a man by the name of Lai Tat Chiu.

4. The Crown's case in the court below, accepted by a majority of the jury as regards the incident in the flat and the whole of the jury as to the blackmail, was that the other man was So Chi Wai, the co-defendant below, who applies by these proceedings for leave to appeal against the convictions and the sentence.

5. The principal evidence against him was firstly the evidence of the accomplice, Lai Tat Chiu, and secondly the evidence of a tape recording of one of the telephone calls made to the victim in pursuance of the blackmail. The voice of the Defendant was identified by six of the witnesses, all colleagues of him, to whom the tape was played in court during the course of the trial. Furthermore he had been an employee of a decorating company which the victim had engaged when she had purchased the flat the previous May and he would thus have had an opportunity to obtain duplicate keys.

6. The trial before Hopkinson, J. was not without incidents. The most important occurred while the Defendant was being cross-examined. The hearing had been adjourned on a Friday evening. The first thing on the following Monday morning. Mr. Jack Ong, who was appearing for the Defendant at the trial on the instructions of solicitors assigned by the Director of Legal Aid, informed the court that the Defendant wished to dispense with his services and to seek other representation with the assistance of his sister. To the judge's eventual enquiry the Defendant limited his reasons for his decision simply to the fact that he had lost confidence in counsel. Mr. Ismail, counsel who appeared that afternoon to seek an adjournment for the Defendant, mentioned particular matters said to be shortcomings in the conduct of the defence, which were strenuously denied by Mr. Ong and apparently not accepted by the judge. He suspected tactical considerations behind such a late application and being concerned with time constraints in regard to the jury he was not willing to adjourn for any length of time, but he stood the case down until the following afternoon to see if anything could be achieved on behalf of the Defendant within that time. The hoisting of No. 8 typhoon signal delayed the hearing until the Wednesday morning, when the judge was informed that the Defendant had decided to conduct his own defence. He appears from the record to have done so  competently, calling three witnesses, one with the help of the police, and addressing the jury at the conclusion of the case.

7. Mr. Frank Wong, who now appears for the Defendant, accepts that the grant of an adjournment is peculiarly within the discretion of the trial judge, but he criticizes the judge as having given insufficient consideration to the matter, in particular in not specifically asking those responsible for the shorthand record how long it would have taken to produce a transcript of the trial that far. Counsel had initially estimated three weeks, subsequently reducing the estimate to two. We do not find this a valid complaint. By that time the trial had already lasted five working days. It is obvious that it would have needed considerable time for the shorthand note to be transcribed and studied by a fresh counsel. The judge was perfectly entitled to conclude that the other factors did not permit delay to that extent.

8. The main argument in this application centres on the identification of the Defendant's voice on the tape recording of the telephone call made on the 9th of September. Earlier that same month the same recording had been played by the police to a number of persons of whom many recognized therein the voice of the Defendant.  No evidence was led below as to the place or circumstances in which those earlier identifications had been made. Both the judge and the Defendant seemed to have thought that it all took place in a police station.  In fact it was all done within the Stock Exchange where both the Defendant and the victim were employed. But we do not think that mistake has any significance.

9. It is suggested that, in the absence of evidence as to the circumstances in which the witnesses made their first identification of the voice of the Defendants, their evidence should not have been admitted. No authority was put forward to support that proposition nor does it commend itself to us as a matter of principle. The same must be said likewise of the secondary argument that even if admissible the judge in the circumstances should of his own motion have called the appropriate evidence. We do not agree. That was for counsel if he thought fit. But we should mention what the judge did in fact do. He criticized very strongly the conduct of the police, having fairly given early and due warning to crown counsel of his intention. He stressed the lack of any formal procedures like those in constant use to ensure scrupulous fairness in the normal case of visual identification parades. He reminded the jury of the time element and he emphasized the fact that "they had all just seen him arrested and they had read about it in the newspapers". The judge could not have been more favourable to the Defendant on this aspect.

10. A further ground of appeal was that the Defendant was not informed personally that two of his colleagues had failed to identify his voice on the tape recording. It is suggested that he was thus deprived of the opportunity of calling them as witnesses. The statements of these two men, Liu Yat Shan and Lau Koon Sung, were among a total of six exhibited to an affidavit which we allowed to be introduced during the hearing of the appeal, together with a bundle of correspondence handed in by Mr. Wong. Included in the correspondence is a letter from the then solicitors of the Defendant which suggests that the six statements in question had not been delivered to them by the Director of Legal Aid before the trial started. If that is so it is surprising that no point was taken when three of those same men were called to give evidence at the trial.

11. Furthermore the transcript of the trial records that crown counsel, when he had finished with witnesses on this aspect of the case, informed the judge that he had given to Mr. Ong "the statements of all the other witnesses who are colleagues of the accused and who heard the tape" and that he added he could make these people available as witnesses if required. It may well be that Mr. Ong took the matter no further with the Defendant himself. The statement of Mr. Liu showed that he did not work together with the Defendant for they had different duties and he said that they seldom talked together. Mr. Lau's statement was to similar effect. We do not think the jury would have been much, if at all, influenced by evidence of that nature.

12. Then it is said that the judge was wrong to invite the jury, as did crown counsel as well, to compare for themselves the Defendant's voice with that recorded on the tape. We see no objection to that. The position is analogous to that where pictures taken by spy cameras are shown to juries in bank robbery cases. The judge warned the jury of the dangers attached to this approach, and he reminded them that if they did adopt it they had to be sure, that it was the Defendant who was speaking on the tape. It is clear that they at least considered, such an approach for after retiring for some time they requested to listen to the tape that the shorthand writer had made privately of the Defendant's closing address, in order, as the foreman said, "to hear the voice of the accused through the cassette recorder". The judge very properly refused the request

13. Finally upon this aspect of the application it is complained that the Defendant was not given the opportunity to recall the voice identification witnesses for cross-examination by himself. However Mr. Wong was not able to show us any record of the Defendant ever having made such an application. Even had he done so there would seem no good reason why the judge should have acceded to it.

14. There remain what are said to be several irregularities which themselves may not be material, but taken cumulatively render the conviction unsafe and unsatisfactory.

15. During the course of his evidence in chief of Mr. Lai, the accomplice, the defence served a notice of alibi for the 17th of August. It included the suggestion that in the early afternoon of that day the accomplice had telephoned the Defendant and asked him to collect for him a video camera from the Thorn Co. in Chung On Street, which the Defendant did, the accomplice called in later to collect the camera from the Defendant's girlfriend's home where the Defendant was working at the time to repair the toilet and a boiler. Armed with this information the prosecution called a witness from the shop to confirm that the Defendant had indeed gone there and hired the video that day. No reason appears from the record why the judge allowed crown counsel to interpose the witness during the course of the examination in chief of the accomplice. But it be that he was influenced by the fact that Mr. Ong specifically raised no objection.

16. When subsequently the examination in chief of the accomplice was resumed crown counsel suggested to him first that despite his earlier evidence to the contrary, a video camera had in fact been taken to the flat that evening; and secondly his evidence that the pills forced down the victim's throat were only cold tablets was equally unreliable. Mr. Lai did not agree with either suggestion. No objection was taken to these suggestions at the time and the exchange certainly cannot have enhanced the standing of the accomplice in the eyes of the jury. The other result was that crown counsel withdrew his earlier agreement to the fact that the pills in question had been only anti-histamines. That is now suggested also to be an irregularity, but we need only observe that defence counsel expressly agreed to the withdrawal.

17. Shortly before this incident crown counsel had shown to the witness two pieces of paper and a cigarette box bearing telephone numbers, which subsequently became exhibits 19, 20 and 21. The object of the exercise was to link the Defendant with the crime by showing that he had provided the Stock Exchange numbers that the accomplice subsequently telephoned. It was late in the day and possibly everyone was somewhat tired, for the transcript reveals that a great deal of confusion ensued between the papers and between who gave which number, all of which could perhaps have been avoided if the judge had insisted upon each piece of paper being given an exhibit number as soon as it was introduced. The confusion may have led the following day to a misrepresentation by crown counsel as to the provenance of one particular number, but we do not think that even if it did, unfortunate and unnecessary as it may have been, the matter is of any significance when taken with the evidence overall.

18. The final matter stems from the Defendant's suggestion in evidence that Mr. Lai, the accomplice, had made up his story of the Defendant's participation in the offence long after his arrest and only in order to do a deal as to sentence with the police. To counter this suggestion crown counsel showed to the Defendant, but did not put in evidence, a document said to be a statement made by the accomplice to the police on the 10th of September and shown to the Defendant the same day. After some prevarication the Defendant agreed that some documents had been shown to him on that day, but not the particular one in question. However he did accept that he was told by the police at that time that Mr. Lai, the accomplice, had implicated him. We see therefore no grounds for complaint.

19. In all the circumstances we are not persuaded that the conviction was unsafe or unsatisfactory. The application for leave to appeal is therefore refused and we now turn to the question of sentence.

20. The judge imposed a sentence of nine years for the robbery, one year for the indecent assault and seven years for the blackmail, to be served consecutively, save as to a certain extent of concurrence, so that the total would be 15 years. The principal argument of Mr. Wong is that the judge failed to appreciate that the robbery was merely part and parcel of the blackmail offence.

21. We do not think it is so, at least not in the sense that Mr. Wong would have us take it. The robbery was itself a separate crime. If it had been merely part and parcel of the blackmail offence there would have been no need to steal the camera or the $2,000 of lai see money that the victim had saved. On the other hand we do accept that in the circumstances there was a considerable overlap between the two crimes which justifies the sentences being made concurrent to some extent.

22. In our view, in the circumstances the nine years for the robbery and the one year for the indecent assault were well deserved. But we feel the blackmail, taken as an offence by itself, received too high a sentence and that a proper sentence would have been one of five years. Allowing, then, an overlap of three years, that would give a total of 12 years.

23. We propose, therefore, to grant the. application for leave to appeal against sentence, treat the application as the appeal, allow the appeal and reduce the blackmail sentence to five years and order it to run for three years concurrently with the other terms. This will give a total sentence of 12 years.

Representation:

A.P. Duckett, Q.C. and Robert Lee Crown Prosecutor for the Respondent.

Frank K.C. Wong (M/s. Tai, Tang & Chong) for the Applicant.