The Queen v. Liu Wing-cheong and Others

CACC000464/1983

BETWEEN

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

Date: 8th December, 1983.

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J U D G M E N T

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Hon. McMullin, V.-P.:

1. The three applicants were jointly charged upon an indictment containing eight counts. There were seven counts of robbery and one count of demanding money by a forged document, contrary to Section 75 of the Crimes Ordinance.

2. The 1st applicant, Liu Wing-cheong faced six counts of robbery while the 2nd, Wan Shing-chiu, was charged upon all the robbery counts. They were jointly charged upon the demanding count. The 3rd applicant, Ma Kim-kwong was charged under the sixth count for a single offence of robbery. They were all convicted as charged, Liu and Wan received sentences totalling ten years' imprisonment and Ma, a sentence of seven years only. They apply for leave to appeal against both conviction and sentence.

3. At the conclusion of the hearing of the appeal, we granted the application of the 3rd applicant and set aside his conviction and sentence and we ordered a re-trial.

4. The 1st and 2nd defendants were arrested upon the 8th of April, 1982 in connection with the offences laid in the first and second charges. Mr. Siu Kwok-kuen and his sister Siu Kwai-fong live in an apartment on the fourth floor of Block C of the Kam Sing Building, Yuen Long. At about 7 a.m. that morning, Miss Siu opened the front door on her way out to worship at a shrine. She was immediately confronted by three men armed with knives who forced her back into the flat. She and her brother were bound hand and foot with wire and towels were placed over their faces and they were forced into the bathroom. The intruders ransacked the premises and eventually Miss Siu's bank passbook was discovered. In the hearing of the Sius, the three robbers discussed the possibility of making use of this book and they ascertained from her that she used her personal chop upon withdrawal slips when drawing money from the bank. Mr. Siu said that, apart from having seen the faces of the robbers when they first came in, he was able to see through the loose weave of the towel which was placed over his face and was able to observe some of the movements of the three men while they were ransacking the flat.

5. Eventually one of the men took the passbook and some withdrawal slips and possibly the chop as well - although the evidence on this was not quite clear - and left the flat.

6. The story is then taken up by employees of a nearby branch of the Hongkong & Shanghai Bank in On Ning Street. Some time, about 10:20 a.m. or 10:30 a.m., a man presented himself at one of the cash counters and presented a savings account passbook and a withdrawal slip chopped with Miss Siu's personal chop and made out in the sum of $24,600.00 At the teller's request, he also gave over his own identity card which identified him as the 1st defendant, Liu Wing-cheong. Since this was a very large withdrawal from an account which at the time held only about $36,000.00 and since the money was being claimed by somebody who was not the personal owner of the account, the teller took the 1st defendant into the Manager's Office to see the Manager.

7. Having made some enquiries, the Manager rang the Siu's flat - the number having been given to him by the applicant - and the man who answered it said it was the wrong number. After a minute or two, the Manager rang again and this time another man answered and upon enquiry, said that he was the son of Miss Siu, the owner of the flat, and that the money was being withdrawn on behalf of Miss Siu. The Manager was suspicious and he sent a messenger to check at the Siu's flat. A few minutes later the Manager rang the flat once again and this time he was put on to Miss Siu who told them that there had been a robbery.

8. The Manager immediately left the applicant in his office and went into the main banking chamber and called out loudly that there had been a robbery. The applicant followed the Manager and tried to snatch back the documents and identity cards which the Manager had taken into his possession and he was then seized by the Manager and several of his staff who had already activated alarm bells, He was subdued after brief struggle.

9. Following this highly effective action on the part of the Manager and his staff, the police were summoned and the applicant was taken back to the Siu's flat. He was there confronted by Mr. Siu who at once identified him as the man who had taken the documents to the Bank. In the defendant's trouser pocket was found a sum of $370.-which Mr. Siu said was the exact amount which, upon investigation, he had discovered missing from his premises. The Sius, brother and sister, confirmed the Manager's evidence concerning the phone calls and told how, following the second of those calls, the two remaining robbers became alarmed and left the premises.

10. The 1st applicant was taken to the police station where he made a full confession to these offences.

11. Meanwhile, Police Constable 12099, who had been on patrol in the area with some other officers, received by radio news of the robbery and the description of the men who had been involved. At about 11:30 a.m. he saw a man answering the description of one of the robbers in the vicinity of the junction between on Ning and Wan Chau Roads in Yuen Long. When the constable and two of his colleagues approached this man, he ran off and was pursued and seized and subdued after a short chase. He was searched upon the spot and in his pocket was found a Seiko wristwatch which was later identified by Miss Siu as her own property. He was then taken to the police station where he too made a full confession to the robbery at once. His conviction upon the second count of demanding by means of a forged instrument rested, of course, upon the evidence that he had been a party to the discussion which sent the other defendant to the bank.

12. The 3rd defendant was not arrested until some 10 days later. Effectively, the only evidence in his case consisted of a very brief confessional statement while in police custody. In the course of the trial, some incautious cross-examination by his lawyer resulted in the arresting constable unexpectedly blurting out information concerning a previous conviction of the 3rd applicant. The Judge intervened at once with a forceful and succinct direction to the jury to disregard that reply and subsequently, in the absence of the jury, he refused an application to discharge the jury.

13. While decisions of this kind fall squarely within the discretion of the trial Judge, who usually has to make up his mind rapidly, having regard to a number of variables, in balancing the public against the private interest, and while we do not think the Judge is to be criticised for the decision which he came, we considered that in the instant case, which Mr. Cagney for the Crown conceded to be marginally in favour of the applicant, justice was best served by ordering a retrial. In doing so, we had regard to the fact that the evidence against him consisted solely of a confession and that, despite impeccable directions by the Judge on the matter, there was the inevitable element of prejudice to the applicant in the fact that he was charged together with two other men who faced a number of similar robbery counts and who, in respect of those counts had made cautioned statements in which the name of this applicant had frequently been mentioned.

14. All three defendants gave evidence but we are concerned now only with the cases of the 1st and 2nd. The 1st applicant' Liu, told the court that at the time of these events he was living at No. 730, Block 4, Yuen Long Estate, in a flat owned by a Mr. Hui Wai-kwong. He had been there since the previous November, having left his own home because of a dispute with his parents. It appears that Mr. Hui wished him to vacate the premises and on the 8th of April the day of the robbery at the Siu's flat, Mr. Hui came there and asked him to come for a walk in the street nearby, during which he sought to persuade the applicant that he should leave the premises. According to the applicant, at the conclusion of this conversation they parted at about 8:30 a.m. in the morning. It is clear, upon the evidence of the Sius, that at that time all three robbers were still inside their flat.

15. The applicant went on to say that having parted from Hui, he went back to the flat at 730, where he received a phone call on his pager. He left a number with the paging company and soon after that he received a call from a person whom he referred to as Ah Wah, a man whom he had known for about one month prior to these events. The time was then roughly 9:45 a.m. Ah Wah wanted him to go with him to Kowloon to take part in some unspecified form of "play". He went down to the street a few minutes later and met Ah Wah to whom he confided that he only had $300 in his possession which he thought might be insufficient for the purposes of their "play". Ah Wah said that he would get his mother to lend the applicant some money. They came to the Hongkong & Shanghai Bank Branch in On Ning Road and Ah Wah handed him the documents which later he produced to the Manager and told him to go and wait in a queue inside while he, Ah Wah, went to urinate.

16. The applicant entered the bank and seeing that there was one teller's window without any queue, he went there and decided that he would try and draw the money on behalf of Ah Wah himself. He presented the passbook, the chopped withdrawal form, the identity cards and perhaps the chop. What transpired thereafter followed roughly the sequence of events as described by the teller and the Bank Manager. He denied, however, that he had given Miss Siu's telephone number to the Bank Manager.

17. The 2nd applicant, Wan, told the court that on the 8th of April, he had arisen at 9 a.m. at his home at 139 Tai Hang Village, Kam Tin. His sister was present in the apartment and she went out and bought him some food for breakfast which he consumed and he was in the premises until 11 a.m., in the presence both of his sister and his mother.

18. As in the case of the 1st applicant, this account covered the period during which the 2nd applicant was supposed to have been present in the apartment of the Sius. He said that when he left his home, he went to Yuen Long with the intention of visiting an uncle who ran a grocery and seafood shop there. When he was walking from the bus stop at Yuen Long towards his uncle's shop, he was suddenly stopped by a police constable who searched him and accused him of having taken part in a robbery.  He was arrested and taken to the police station where he later made the several confessional statements which were the principal evidence against him on counts 3-8 of the indictment and which constituted supportive evidence in respect of the first and second counts.

19. He denied that the Seiko watch belonging to Miss Siu had been found in his possession. He admitted that he had pawned a Tugaris watch which was part of the property laid in the third count and the Titoni watch and Yashica camera described in the fourth count on the 15th of March and said that he had disposed of them in three separate pawn shops with the idea that in that way they would fetch more money.

20. He accounted for his possession of these items by saying that he had gone for a joy ride with a friend called Wong Wai-keung and the elder brother of that friend who had just purchased a new motor car. While they were parking the ear in Shamshuipo, they accidentally bumped another car which was parked there The owner of that car demanded $1500 compensation and eventually agreed to take $1000. Since they did not have between them that amount of money, his friend and his friend's elder brother surrendered their wrist watches and also a camera which they gave to him to pawn in order to raise the compensation.

21. At the trial, the 1st and 2nd applicants denied having made any confessional statements. Each of them claimed that the documents which they had signed had been concocted by the police and signed by them after much coercion which included physical violence. Notices of alibi had been served upon the prosecution on behalf of each applicant and Mr. Hui was called to support the alibi of the 1st applicant and Miss Wan Yuk-ying, the sister of the 2nd applicant, was called to support his. Both of those witnesses did give evidence in favour of the defendants, but the manner in which that evidence was dealt with during the trial and the manner in which it was dealt with by the Judge in Summing-up has formed the substance of grounds of appeal taken on behalf of both applicants.

22. Six grounds of appeal were presented on behalf of the 1st applicant. Mr. Cagney was not called upon to reply on the sixth ground which took objection to the manner of the cross-examination of the applicant. He did not seek to support the convictions of the applicant in respect of the robberies laid in the third, fourth and fifth counts and in this, as will appear, he was clearly right. The evidence against the applicant on those counts consisted of his confessional statements together with the identification of certain items of property belonging to certain of the victims referred to in those charges. Some of this property was exhibited in court and the manner in which it was dealt with in the course of the trial gives rise to another ground of appeal which Mrs. Penlington for the 1st applicant originally took. This ground is common also to the case of the 2nd applicant and the point is taken in identical terms by Mr. Ch ng Wong, again in relation to counts three, four and five. Mrs. Penlington was content not to press this point in regard to her client in view of a clear misdirection on fact which occurred in the Summing-up and which is the subject of her fifth ground of appeal.

23. In dealing with these counts, for which the principal supporting evidence was in each case a confessional statement made by the applicant while in police custody, the trial Judge unfortunately took a line which had earlier been emphasized by Counsel for the prosecution. He told the jury that, in considering the question of the authenticity of these confessions - which had been heavily assailed by the defence they should pay particular regard to the fact that at the time the 1st applicant made those statements, the police could not have been in possession of the facts concerning the robberies to which the confessions related. He told them that this evidence had only come to light as a result of certain statements made by the 2nd applicant and he pointed out that those statements had only been made on the afternoon of the 9th of April, whereas the confessions of the 1st applicant had been made on the morning of that day.

24. In fact, the circumstances were precisely the other way around. It was on the morning of the 9th of April that the 2nd applicant led the police to certain premises and made certain confessional statements which eventually led to the laying of the three charges and the recording of the statements allegedly made in respect of those charges by the 1st applicant, each of which was prefaced, in the usual way, by a recital of the facts in which the police were interested. These statements were made by the 1st applicant in the afternoon of the 8th. In view of the considerable emphasis laid by the Judge upon this feature of the evidence, as he mistakenly had perceived it, we are of the opinion that these convictions cannot safely stand and the appeal must be allowed to the extent that those convictions are quashed and the sentences imposed in respect of them are set aside.

25. The remaining grounds three and four taken oh behalf of the 1st applicant concern the alibi point. The somewhat confused sequence of events which founds this objection commences with the remarkable fact that although Mr. Hui Wai-Kwong was patently a vital witness for the defence, he was nevertheless called by the prosecution. The reason for that is apparently that what was in the hands of the prosecution at the commencement of the trial was a statement by that witness in which he had said that the 1st applicant was occupying his premises at No. 730 between November and the 8th of April. Further, it was stated therein that there had been a visit by the police to those premises on the 9th of April, when a bottle of brandy and a cassette recorder were discovered there which were later identified as proceeds of robberies concerned in two of the charges. No doubt that evidence did lend support to the case against the applicant on those charges, but the same statement - which we understand - was the deposition statement of the witness in the lands of prosecuting counsel at the committal proceedings - clearly stated upon the face of it that Mr. Hui had had a conversation of the kind described by the 1st applicant and that that conversation had taken place on the morning of 8th of April. That evidence, if accepted would have destroyed the prosecution case against the applicant on the first and second counts

26. Close to the end of the hearing of the appeal, we were informed by Mr. Cagney of an unfortunate practice which has grown up whereby such a deposition statement made by a Chinese witness and recorded in the Chinese language and then properly translated into English is made the subject of an English language precis which is then put in the hands of the prosecutor. In this instance it is said that the original statement gave the vital date as the 7th of April - which would of course be of no assistance whatsoever to the applicant - but that a mistake had occurred whereby this was recorded as the 8th by the time the precis reached the hands of the prosecutor.

27. It is undoubted that that deposition statement does refer to the 8th of April, but what is astonishing is that, despite the fact that the prosecutor must have been aware of the circumstances which have now been described to this court by Mr. Cagney, on the 17th of March, when he began to examine Mr. Hui in chief, Mr. Dinan who appeared for the Crown, actually led the witness to name the 8th as the day upon which he had encountered the 1st applicant and then went on to elicit from him that the alibi conversation had taken place somewhat nearer to eight than to nine o'clock on that morning - thus apparently fully substantiating the alibi.

28. There is nothing on the record to indicate that prosecuting counsel was in the least discomfited by these answers at that stage.  Immediately thereafter the court adjourned for the day.

29. It may be that overnight reflection brought the oddity of his situation to Mr. Dinan's attention because when the court resumed oh the 18th, he launched at once into a series of questions which, it would be difficult to regard as other than cross-examination of the witness, by reference to a previous statement allegedly made by him. We now know that this referred to a statement made to the police almost exactly one year prior to the trial, on the 9th of April, 1982, which, as we are informed, gave the date of the encounter with the applicant as the 7th of April, 1982. This was the witness's original statement made and recorded in Chinese.  But although he was evidently intent oh repairing the'' aberration of the previous day, cousnel did not at once present this statement to the court and to the witness but continued to quiz the witness on his memory of the date suggesting that it might be the 7th and hot the 8th. From the outset, and throughout the sequence of questions that followed, the witness made it clear that while he could hot at the moment of questioning, remember what date he had initially given, the date he had initially given would be the correct date. That was a most reasonable position to take in view of the fact that he was being reminded of matters that had occurred a year previously.

30. Defence counsel then intervened to suggest that the statement be shown to the witness and the Judge emphatically agreed with this proposal. Another witness was then interposed and subsequently Mr. Hui was recalled and the statement dated 9th of April, 1982 was drawn to his attention. This document has since disappeared. He agreed with the general gist of the statement therein but pointed out that the relevant and disputed date appeared to have been altered and that he had not signed the alteration and did not know how that had come about. He appeared to agree that the figure 7 was shown but he suggested that the alteration appeared to be from either a 6 or an 8.

31. At this point, Mr. Hoosen for the applicant, not surprisingly, suggested that the Crown might consider taking a different course of action. Once again, the Judge agreed with defence counsel. Some further questions were however put upon the basis that counsel for the prosecution was still merely seeking to have the witness refresh his memory from this other statement. The witness maintained that he simply could hot remember whether the date he had originally given was the 7th or the 8th. The jury were then asked to withdraw and an application was made to treat the witness as hostile.

32. Mr. Hoosen objected upon the ground that the reason why the document did hot refresh the witness's memory was because it had this vital alteration. The Judge rejected this view and expressed the opinion that the witness at that stage seemed to him to be "extremely hostile". Shortly after that he mitigated this opinion by saying that that was preliminary opinion which might be modified when he had heard what the witness had to say upon enquiry on voir dire, which he thereupon instituted. We do hot have the transcript of what the witness then said, but the record shows the following note:  "In view of the witness's evidence, Crown Counsel withdrew his application."

33. This court is of course hot in a position to estimate the demeanour of the witness but the record of his many replies would seem, on the face of it, to disclose nothing more than puzzlement in face of the confusion introduced by the prosecutor himself in eliciting from him the date upon which the applicant relied. It is not surprising that the witness should have maintained that his earliest statement should show the correct date, or that he was surprised and suspicious to discover .that it had apparently been altered when he saw the document.  Moreover, the deposition statement which clearly showed the date as the 8th was never drawn to the Judge's or to the witness's attention by the prosecutor and this was done by Mr. Hoosen after the Judge had already expressed himself in the strong terms which have already been described.

34. Certainly, the members of this court find it very difficult to say that anything upon the record shows that the witness was trying to be evasive. Nevertheless, when he came to address the jury that is precisely how the Judge represented the matter to them. He correctly pointed out that in a subsequent answer to Mr. Hoosen, after the aborted endeavour to treat him as hostile, the witness, having agreed that he had said in his deposition statement that he went to the premises where he saw the applicant on the 8th and that it was on the following day, the 9th, that he saw the police there, went on to say that he wasn't sure whether it was one day prior to the arrival of the police or several days prior to that event.

35. The Judge also reminded the jury that Mr. Hoosen had made the point that it was part of the agreed facts that Hui had been in Macau on the 6th and had returned on the 7th, arriving only at 9:30 a.m. so that, on counsel's contention, he could not have had a conversation at about 8:00 a.m. with the applicant on the morning of that day. The Judge then concluded his remarks on this part of the evidence by asking the jury whether Mr. Hui was a man upon whose: estimate of time - not of date - they could place any reliance.

36. Clearly Mr. Hui was a vital witness in favour of the applicant and in view of the confusion which had been caused by the events which have been recited above, the Judge ought, in fairness to the applicant, to have reminded the jury that the applicant's original evidence was supported by what appeared in the deposition; that the applicant relied upon his original statement as showing the correct date; and that the applicant had not accepted that the 7th was unequivocally show in in the statement of the 9th of April.

37. Mr. Cagney supporting the convictions upon the first and second count, does not deny that there may have been some degree of prejudice to the interests of the applicant in what has been described, but he asked us to say that the Judge's final direction to the jury on the matter was not wrong since, in any event, the witness professed himself unable to remember what date he had originally given. No doubt that is so, but we are left with the very distinct impression that the witness's eventual inability to say more than that he could not remember was the result of a confusion which was never adequately cleared up in respect of what appeared in the original statement that he made. One member of this court takes the view that because of this episode in the course of the trial concerning the witness Mr. Hui, that passage in the summing-up where the trial judge made reference to the applicant's alibi and commented on the credibility of Mr. Hui, amounted' to the taking away of the applicant's opportunity to have his defence, however tenuous, considered by the jury.

38. This is upon the basis that, the jury might have thought that the applicant was not a participant in the actual robbery and might have given greater consideration to his story as to why he had gone to the bank had Mr. Hui's evidence not been destroyed by the way he was treated at trial and by the unjustified comments in the summing-up.

39. Had this been the majority view we would not have applied the proviso but would have heard Counsel on the matter of a re-trial. In the opinion of the majority if the evidence upon these counts had been less formidable than it is, we would think that this want of balance in addressing the jury upon a matter of the utmost importance to the defence would have obliged us to quash the convictions. In the final analysis however, that evidence was, we think,so overwhelming and the applicant's response to it so transparently contrived that we cannot believe that the jury, even if more fully directed, could have formed of it any other opinion than that it was absurd and false The judge's failure to direct on these points is one to which the proviso may properly be applied.

40. So far as the sixth and seventh counts are concerned, no representations have been made to this court on behalf of the first applicant to question the propriety of the jury's decision and we see no reason to interfere with those convictions either. Save to the extent already indicated, therefore, the application of the 1st applicant is refused.

41. The first point taken on behalf of the 2nd applicant concerns the third, fourth and fifth counts only. Some of the property alleged to be the proceeds of the robberies covered by those charges was exhibited in court. At a certain stage in the trial the Judge became exercised about the hardship occasioned to some of the victims named in those charges through prolonged deprivation of their property. A discussion took place between the prosecutor and the Judge in which this property was referred to as though it had already been identified as the property of the victims. Subsequently, objection was taken to this by Mr. Hingorani for the applicant on the ground that, since this was property named in the charges and its identification was a matter in issue, the Judge was in effect pre-empting the jury's decision upon a question of fact. Counsel applied once more, once more in the absence of the jury, for the jury's discharge upon this ground.  The application was refused.

42. Upon the return of the jury, the Judge sought to clear the matter up. He reminded them of what they had heard him saying in the discussion with counsel and he went oh to say :

43. Mr. Ching Wong says, firstly, that this does hot represent what the Judge had originally said, since it was clear from his discussion with counsel that he was anticipating an immediate application or perhaps one made on the morning following the exchange between them. Secondly he says that in any event, this does not undo the mischief.

44. There is substance in the first of these points because the Judge undoubtedly at the earlier stage seemed to have in mind that the application could be made in the course of the trial But the Important point is whether what he subsequently said was sufficient to set the matter right. We think that this direction, taken together with what the Judge eventually told the jury concerning this property when he came to sum up to them was sufficient to remove the possibility that the jury might think that the issue of ownership had already been concluded when they came to consider their verdict.

45. It was part of Mr. Ching Wong's submission that, assuming that this point had substance, it redounded in favour of the applicant also in respect of the sixth, seventh and eighth charges. That was at best a tenuous argument, and in the event it does not need further consideration.

46. The remaining ground concerns the first and second counts. Mr. Cheng Wong says that the Judge did not put the second applicant's defence of alibi fairly to the jury.

47. The cross-examination of the applicant's sister Wong Yukying was very brief. Counsel elicited from the witness the admission that, although the matter had happened a year before the trial, her assistance as a witness had only been solicited a matter of two weeks prior to her giving evidence. The clear implication of that was that her recollection about a matter as insignificant as her providing her brother with breakfast on a certain day a year before could scarcely be reliable. In directing the jury the Judge said:

48. It is conceded that the Crown's approach to the witness's evidence was never spelled out with that degree of particularity either by cross-examination or by counsel in his closing address to the jury. Mr. Cagney, while conceding that there are inherent dangers in attributing to the prosecution views which it has not explicitly put forward, maintains nevertheless that there was no misdirection in the present case. He emphasises the fact that the Judge put forward these views as being the Crown's case "as I understand it". On the whole, we think that is correct, although the formula "the Crown says", and others of the like kind are really only suitable for use when the matter put forward as the Crown's view has explicitly been put forward in terms which justify so direct an attribution. It is greatly preferable to avoid such expressions where they are not strictly justified by what has been put forward on behalf of the Crown. It is best for the Judge to make it clear that what he is putting to the jury is his own opinion of what must be implied by the prosecution case. In extreme cases the other approach may result in the jury forming the opinion that the views of the Judge and the prosecutor precisely co-incide upon a matter of some importance, when such is not the case.

49. A matter of greater substance touches again upon the question of balance in the summing-up. In examination in chief, the witness had sought to account for her capacity to remember what happened on the 8th of April, 1982 by reference to the fact that on the day after her brother had been arrested, she was told of his arrest by her father. Clearly it would not have been difficult for her to remember that she was told of the arrest a day after it had occurred, and this aspect of her evidence was not probed in cross-examination. That was a serious omission in regard to this alibi and once again we are compelled to say that if the evidence against this defendant upon these charges had been less compelling than it was, we would necessarily have had to quash the convictions. But the evidence was very strong. The applicant was found at about 11 a.m. in the vicinity of the premises which had been robbed; upon the police approaching him he ran away at once; when he was searched, Madam Siu's Seiko watch was found in his trousers' pocket; he was later identified by her at a properly held parade as the person who had tied her up. And finally he confessed to these crimes. Once again, we think the proviso ought to be applied and the second applicant's applications to appeal against conviction upon all counts is refused.

Representation:

Mrs. V.A. Penlington(Oliver & Driver) for 1st Applicant.

Ching Y. Wong(Arthur Au & Co.) for 2nd Applicant.

Simon Westbrook (Arthur Au & Co.) for 3rd Applicant.

John Cagney for Respondent/Crown.