The Queen v. Lui Pak Bun and Others

CACC000049/1984

BETWEEN

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Coram: Hon. Fuad, J. A., Hon. Barnes & Hon. Kempster, JJ.

Date of Hearing: 25 May 1984

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JUDGMENT

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Kempster, J.:

1. On 30th May 1983 a robbery took place at the premises of the Berlin Fur Company in Tsimshatsui. In the course of that robbery 83 fur coats, personal items and money were stolen.

2. The applicants for leave to appeal, LUI Pak-bun, LAM Chun-yin, OR Wing-ching, LEUNG Chi-hung and LO Kwok-wah (together with POON Chi-ping who was charged with and convicted of handling and whose application stands adjourned) were in due course tried for participation in this robbery. They were found guilty by a jury and sentenced. Lui and Leung were also found guilty of taking a vehicle without authority and duly sentenced for that offence as well. Against those convictions and sentences they now variously seek leave to appeal.

3. In his summing-up Bewley J. fully directed the jury as to the burden of proof resting on the Crown; as to the weight they might attach to written and oral confessions; as to the evidntial value of such confessions if made in the absence of any other accused; as to the risks involved in identifying a person only briefly seen in the course of the commission of crime and the essential elements of the offences charged in relation to which the jury had to be satisfied before they could bring in verdicts of guilty. The learned judge also gave the jury a comprehensive reminder of the evidence which they had heard and, having properly directed them that it was their opinions of the credibility of the witnesses that mattered, made various comments on such evidence. He indicated what items of the stolen property had been recovered and in what circumstances and canvassed the considerations relevant to the use of a van for the purposes of the robbery as alleged. I should perhaps add that in the course of the robbery at least one knife and a pistol were used and that two persons, one present and one who arrived at the premises, were bound and one of them was gagged. The real issue at the trial was the identity of the robbers and it is to this aspect of the case that the respective grounds for leave to appeal against conviction are directed.

4. In relation to his conviction the applicant LUI Pak-bun states as follows:

"I found the judge in the trial unfair and prejudiced. There were a lot of doubts in the case, but the judge failed to handle the case in a fair way and had misled the jury to convict me. Therefore I request an appeal, the grounds for which are as follows:-

When invited to add further reasons this morning he complained that the principal tenant in the place where he was living at the material time was not called to give evidence. As to that it was for the jury to make up their minds on the evidence they did hear. With regard to the reflections on the conduct of the trial made by this and other applicants we can only say that while the tenor of the summing-up was, without doubt, favourable to the prosecution  the learned judge in no way sought to impose his personal views on the jury and was at pains to  remind them of the evidence tending to show innocence given by or on behalf of each of the respective accused and to point out discrepancies in the evidence given by different policemen. In the absence of an vitiating factor effecting the summing-up we are unable to give any weight to these allegations of unfairness and prejudice.

5. As to the assertion that there was no witness or exhibit which could prove that this applicant had participated in the offence he did point out the spot where the appropriate van had been found and there was the confession which he made at Kowloon Police Headquarters on the 2nd June. According to the statement, which he undoubtedly signed, he first of all said:

"I was only responsible for driving the car.

I didn't take part in going up to rob."

While later on the same day, in response to a question, again as he acknowledged in writing he answered-

" - I remember one day before we were ready to rob - "

One could hardly find a clearer admission of complicity. In relation to these admissions relied upon by the Crown the learned judge reminded the jury, so that they could consider their value, that Lui had claimed to have been subjected to the discomfort of ice being put down his back; to having been dragged to the privy by the hair and to having had water poured into his mouth for 20 minutes. It is true that this applicant was not arrested red-handed. It is not true to say that the judge said that his statement was signed voluntarily. That issue was left to the jury. In the circumstances we do not accede to Lui's application for leave to appeal against conviction.

6. LAM Chun-yin appeals only against his conviction and on these grounds:

"1) The Learned Judge misdirected the jury by saying that the pawn ticket (issued in 1982) was a very important evidence in the case and this led the jury to have a wrong impression that the ticket was for the stolen property."

and then the vital assertion:

"As a result of the misdirection, the jury found me guilty of the offence.

2) There was aphotograph showing the position of the telephone of my home. The picture was taken by my first counsel for the purpose of proving that the evidence given by a policeman was false. That is the only exhibit that could have proved my innocence but it was not presented to court as exhibit. Even worse is that the trial judge did not mention that, in his summing-up nor did my   second counsel mention it during the trial. As a result, the jury was unaware of that fact.

3) During the trial, the policeman (12884) testified that he at my home found a telephone notebook, which contained the name of the LOK Kwok-wah. When my counsel demanded that the telephone notebook be presented as exhibit, the policeman said that it had been lost. Therefore, the jury did not have the chance to see the said notebook."

Lam also complained this morning of a direction to the effect that he had made an admission as to the time of the robbery and also that the judge had referred to Lam's evidence in relation to Ah Shu in a misleading way. As to those points the judge referred to his summing-up only to the statements which Lam had made to the police and had acknowledged in writing but in relation to Ah Shu I shall have further comments to make. As to the point in relation to the telephone notebook the judge commented to the jury in this way:

"But what about the missing notebook ? This is rather odd, you may think, members of the jury. Is there anything sinister about this, do you think ? Do you accept that it really has been lost, or is it something that is embarrassing to the prosecution and they deliberately put it aside ? Well, it is a matter for you."

The applicant can hardly accuse the learned judge of being less than fair to him in this context. As to the deficiencies of Counsel acting for the applicant at trial this is a matter of complaint which we cannot entertain. For Counsel unsuccessful in securing an acquittal to become the subject of criticism from his client is an occupational hazard. Certainly the learned trial judge could hardly be expected to mention to the jury something which had not been adduced in evidence. I turn to the question of the pawn ticket. The learned judge reminded the jury that in evidence this appellant said that he allowed one Ah Shu to pawn a pen with his, that is this appellant's identity card, after they had lost some money at the races. The applicant did not know Ah Shu's address and later the learned judge commented:

"Now if the articles were pawned with his identity card, would he not himself have kept the pawn ticket, because the identity card would have been needed in the event of his wanting to redeem, or Ah Shu wanting to redeem, the pen. But the pawn ticket was kept in the drawer at Cannon Street."

Mr. Jennings, who appears today on behalf of the Crown, has very properly conceded that in fact the pen was pawned by a co-accused Lo. Be that as may *(not only was) Lam* (identified by one of the victims and a fur hat, part of the stolen property, found in his cubicle but he) made oral and written confessions. In the course of questioning, the accuracy of which he had acknowledged by his signature, he was asked whether he knew that there was a Dupont  ballpen among the items of property stolen from the Berlin Fur Company to which, apparently, he answered:

"I know that this pen was taken away and pawned by certainly a person called Ah Shu. I don't know when he pawned it nor do I know where he pawned it. I did not receive any share of the money. I only know that the pen was obtained from the robbery of  the Berlin Fur Company."

In the light of his contentions and such admission we find that this ground of appeal is no more sustainable than the others advanced and dismiss this application for leave to appeal against conviction.

OR Wing-ching's Notice of Appeal reads:

"I lodge an appeal because the judge was unfair and I was convicted in an unfair way. I hereby crave leave to  appeal against the conviction, reasons for which are:-

And this morning he said that he had been described as a "lookout" whereas there had in fact been no lookout as the arrival of a witness in the course of the robbery demonstrated. As to this last point we are not persuaded that the inference for which this applicant contends is one that the jury should necessarily have made. We have already commented one in general terms on allegations of unfairness and prejudice made against the judge and will not repeat them. As we are sure this applicant will appreciate, on reflection, it was for the jury and not for the judge to assess whether or not the evidence led by the prosecution established his guilt so that they were sure of it and to assess the credibility of the various witnesses called by the Crown and of the accused and of any witness or witnesses they called. Not only was property stolen from the Berlin Fur Company found in the cubicle where he was asleep prior to arrest but he too made an admission under caution acknowledged by his signature which the jury was entitled to regard as satisfactory proof of his guilt. The learned judge reminded the jury of this applicant's evidence to the effect that any confession he made was induced by the brutality of the police and of the evidence of a Mr. Lo whom this applicant called to give an alibi as to his presence elsewhere at the material time. The propriety of  the summing-up in relation to this applicant cannot, in our view, be challenged and we refuse his  application for leave to appeal against conviction.

7. Mr. LO Kwok-wah appeals against conviction on the following  grounds:

"The trial judge erred in directing the jury. The following are two examples:-

8. We have been unable to find any passage in the transcript of the summing-up approximating to the words of which this applicant complains. The nearest we get is as follows:

"On the 9th of June he (Lo) was submitted to the Lai Chi Kok Remand Centre and he saw Dr. Tan the next day and he complained about the assault (an alleged assault on him by the police to induce a 'confession'). By then his injuries had formed scabs and he pointed these out to the doctor. He also complained to the Complaints Against the Police Office - these injuries, you may think, may be consistent with climbing out of a small window and jumping down in the dark onto several levels of corrugated iron."

This applicant was indeed, it would appear, seen to escape from the small room in which he was asleep when the police entered and shortly afterwards found sheltering in a dark yard nearby  dressed only in his underpants. As to identification the learned judge directed the jury as follows:

"On the 7th of June Mr. Lui (who is a salesman employed by the Berlin Fur Company and a victim) attended an identification parade and picked out (Lo) as the man with a knife. He says he was very positive and he also picked him out in court without any hesitation, you may recall.

By he also picked out two actors."

I interpolate that the jury would understand by that two persons quite unconnected with the robbery. The judge went on:

"He says he picked them out as looking like the other two robbers, but he was not very certain. - Obviously, the witness now realises his mistake and it is a matter for you whether you find that he was mistaken or otherwise about (Lo).

He says he actually picked him out at the No.2 position, but he is not sure now. That was wrong because Lo was standing in No.9 position."

So this mistake was pointed out in no uncertain terms to the jury and later the learned judge said:

"Mr. Lui made two mistakes as well as identifying (Lo) as the man with the knife."

At the conclusion of his summing-up the learned judge referred to this rather suspect identification also reminding the jury of the stolen property found in Lo's cubicle; of the pawning of the Dupont ballpen; of Lo's oral and written confessions and of his answer to the charge. In the circumstances we find neither misdirection nor that the jury found this applicant guilty by reason of any misunderstanding. We dismiss Lo's application for leave to appeal against conviction.

9. Turning to the appeals against sentence, Mr. LUI Pak-bun was sentenced to 10 years imprisonment for robbery and 12 months cuncurrent for taking a conveyance without authority. At the date of conviction, namely the 25th January 1984, he was 25 years of age and  had no previous convictions. I have outlined the nature of the robbery which involved not only violence and weapons but a substantial amount of property. The furs alone were worth some HK$730,000.  This applicant must, in the nature of things, have been well aware of the risk he was taking in embarking upon such an enterprise and that he would receive a substantial sentence if convicted. A substantial sentence he has indeed received. LUI Pak-bun gives no reasons in his Notice of Appeal why we should interfere with this sentence which comes within the accepted parameters for this class of case. We find no error of principle in the sentence and do not, accordingly, feel entitled to interfere. It  follows that we refuse his application to appeal against sentence.

10. OR Wing-ching gives no reasons why we should interfere with the sentence of 10 years imprisonment passed upon him for his complicity in this robbery. He was 27 years old at the time of conviction. He has not got a clean record but the two convictions recorded against him are of a totally different nature from that for which Bewley J. sentenced him. We see no reason to interfere and dismiss his application for leave to appeal against sentence.

11. In support of his appeal, against sentence only, LEUNG Chi-hung, who was sentenced to 13 years imprisonment for robbery and 12 months concurrent for taking a vehicle without authority, says that all the members of his family are in Mainland China and are too old to work and relied on him for support. He says that prior to his arrest he sent them $500 a month and that he has worked hard as a construction worker to do this as well as supporting himself. He says that he had determined to turn over a new leaf. Those grounds we can understand. We hope that on his release he will turn over a new leaf. But Leung goes on to say that when he came to Hong Kong as an illegal immigrant in 1982 he was not familiar with the environment of this territory and knew nothing about how to commit a robbery. "I did not even know where the police check points were." Accepting as we must the finding of the jury he apparently discovered how to commit a robbery soon enough. The Notice of Appeal goes on:

"I was not the mastermind of the case and before this offence, I have never committed any robbery. In this case, I was used by the others. - After my arrest, I co-operated with the police and provided the police with such information as the names and addresses of the robbers which led to an ultimate detection of the case."

12. Mr. Jennings was unable to support this assertion in all its fullness but did say that he had admitted his guilt and helped to locate the pistol.

13. Leung, aged 22 at the time of conviction, was the subject matter of a medical report, nothing amiss being found, and, albeit he may well have given the police some help, was found by the learned judge, together with LO Kwok-wah and LAM Chun-yin (Lam does not appeal against sentence) to be not only a planner of the crime but a principal actor who should receive a relatively heavy sentence. For that reason the judge imposed sentences of 13 years on Leung, Lo and Lam as compared with 10 years imposed on or and LUI Pak-bun. We are not prepared to interfere with the sentence passed on Leung. Yet again the judge in no way erred in principle. We dismiss his application to appeal against sentence.

14. As to the appeal of LO Kwok-wah against the 13 years sentence passed on him for reasons which I have just outlined he says in his Notice of Appeal:

"I have been working as a construction worker since I came to Hong Kong a few years ago. My elderly parents are still in Mainland China and rely on me for support. Before my arrest, I used to send them money regularly. At present, there is nobody available to look after them. I sincerely hope for a reduction of the sentence imposed so that I can resume the responsibilities of a son."

He was aged 26 years at the date of conviction and his plea is very similar to that of LEUNG Chi-hung. In relation to both it must be appreciated that dependants in Mainland China or elsewhere can hardly expect to be supported from the proceeds of crime in Hong Kong. Again, it is a feature of criminal justice all over the world that a sentence passed on a malefactor will necessarily cause hardship to innocent parties. That is a matter for potential criminals to bear in mind but not a ground, in our view, for interfering with the sentences passed on Lo or any other of the applicants seeking today for leave to appeal in relation to them. We dismiss Lo's application for leave to appeal against sentence.

Representation:

Applicants in person.

Michael Jennings for Crown.