Iu Kau and Others v. The Queen

CACC000494/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 494 OF 1971

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Coram: Rigby, C.J., Huggins and Pickering, JJ.

Date of Judgment: 30th December, 1971.

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JUDGMENT

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Pickering, J.:

1. The five appellants, together with a sixth man who broke bail and has not yet been tried, were charged between them with seven offences - six of blackmail and one of robbery. No single charge was levelled against all the appellants but, in different combinations, all of them were charged with one or more of the blackmail offences. In addition the 4th and 5th appellants together with the 6th accused (he who broke bail) faced the robbery charge.

2. All the appellants pleaded guilty to the respective blackmail charges; that is, the 1st appellant to 5 such charges, the 2nd to two, the 3rd and the 4th to four each, and the 5th to one. To the charge of robbery however, whereas the 4th appellant pleaded guilty, the 5th pleaded not guilty. In the result the learned District Judge found him guilty upon that charge.

3. Upon the blackmail charges the sentences of imprisonment imposed totalled: -

4. Upon the charge of robbery the sentences were: -

5. All the appellants appeal against their sentences and, in addition, the 5th appellant appeals against conviction upon the charge of robbery. I will deal first with that conviction.

6. Upon this charge the male victim gave evidence that at about 11:20 p.m., on the 25th May, 1971 he was seated in the front of a stationary car with a lady in the disused section of the old Stubbs Road, when he observed a small car pass by, make a U-turn and pass again in the opposite direction. Thereafter two men came up to his car and one of them sat next to him on the front seat and the other next to the lady; this second man pointed a knife at the lady's neck and thereupon the male victim was relieved of a wallet, $405 and a Rolex watch. At that juncture a police patrol car arrived and the two robbers were arrested. These were in fact the 4th appellant and the 6th accused, not the present appellant against conviction. The male victim added that, as the small car passed by, he could see only one person in it.

7. The female victim, who had been seated with her male companion in the car, gave corroborative evidence of the robbery from her companion but it is apparent from her evidence that, although the two robbers had opened her purse, she had no clear recollection of whether or not they had taken four lipsticks and a notebook from it.

8. Sergeant 2781 CHAN Hok-yu testified that he was in charge of a mobile patrol which, at about 11:20 p.m. on the night in question, reached what he described as a side-road near 46 Stubbs Road, being a disused portion of the old Stubbs Road. There he saw a car parked in the disused portion of the road facing the entrance to that portion and at about thirty yards from the entrance; the number of the car was AD 2248 and, although at first there appeared to be nobody in the car, when the police car drove into the disused road and close to the car AD 2248 "someone suddenly popped up from the driver's seat and drove off in a hurry" without turning on any lights. The Sergeant thereupon instructed his driver to make a U-turn with the intention of pursuing the car AD2248 but, before this manoeuvre had been completed, he saw another private car AS4830 which was facing away from the entrance to the disused portion of Stubbs Road. The Sergeant told his driver to approach this private car and, as he got close to it, he could see three men and a woman sitting in the front seat; he thereupon asked the four for their identities and inquired as to what had happened. Two of the men said that nothing had happened and that they were friends and were simply talking. The girl, according to the Sergeant, appeared to be very frightened and a man sitting in the middle was holding a wallet and a $5 note in his hand. The girl and one of the men subsequently proved to be the two victims and the other two men were respectively the 4th appellant and the 6th accused. As a result of a conversation which the Sergeant had with the girl at the front of the car whilst the three men stood at the rear thereof, he caused the car to be searched whereupon an unsheathed knife about 15 inches long and a detached sheath were found lying on the carpet at the front of the car near the passenger seat. Following this discovery the Sergeant asked the two complainants whether they had been robbed by the other two men and received an affirmative reply. As the result of a body search, the 4th appellant was found to have, in his left trouser pocket, a black wallet and a lipstick case, and upon his wrist, a watch. The wallet and the watch were identified by the male victim as his property as was the lipstick by the girl. Subsequently, at the Police Station, the car was again searched by the Sergeant and an inspector and four $100 notes were found on the carpet below the seat.

9. The car AD2243 proved to be a car reported as having been stolen, and was later found abandoned about one mile from the scene of the robbery. The Sergeant said he could not identify the person who drove that car away from the scene.

10. Another Detective Sergeant, 1737 LAW Siu-tong testified that at about 1:50 a.m. on the 28th May, 1971, that is 2 1/2 hours after the occurrence of the events which I have related, he went, on information, to Room 1402 on the 14th floor of Sincere Building Argyle Street, Kowloon to look for the 5th appellant who was duly found there and who there made a statement to the Sergeant. The 5th appellant made another statement to the same Sergeant at 11:45 a.m. on the same day, at Wanchai Police Station.

11. In evidence, the 5th appellant said that at about 8 p.m. on the 27th May, 1971, he was playing billiards in the Paris Billiard Hall near the Sincere Building in Mongkok, when the 4th appellant and the 6th accused came to see him; that the 4th appellant then suggested going for a drive as the 6th accused had a car; that he agreed to this and was taken outside to a Morris 1100 with the registration number AD 2248 which the 6th accused, claiming the car was his, asked the 5th appellant to drive.

12. The 5th appellant's evidence continued that he did drive the car, noticing as he got into it that the engine was already running; no destination was specified and they drove around Mongkok and thereafter, on the 6th accused's suggestion, to Hong Kong Island arriving at Stubbs Road at about 11:00 p.m.; when they came to the entrance to a quiet road, the 6th accused said that he had to look for a toilet and told the 5th appellant to stop the car which he did. Subsequently, after the 4th appellant and the 6th accused had alighted, the 5th appellant reversed the car into the disused portion of Stubbs Road. He denied that he had driven forward into this disused road and there made a U-turn. The 5th appellant's evidence continued that having parked the car, he turned and saw the 4th appellant and the 6th accused approaching another private car and he saw the 6th accused take out a sharp instrument with a shining blade; at that time the car which he himself had been driving had its engine running and its lights off; he wanted to get out to see what was happening; however, a patrol car came and, in the darkness, he dimly saw several police officers alight from that car; at about the same time he saw the 4th appellant trying to open the door of the other private car; he himself did not know what was happening but suspected robbery, rape or murder and wanted to go forward to stop the 4th appellant and the 6th accused "but the P.Cs. had already alighted to make arrests". Being very frightened, he drove away later abandoning the Morris and going home by taxi.

13. Under cross-examination, the 5th appellant agreed that he was a police officer and said that the reason the engine was running when he first approached the car, was that there was no ignition key, the 6th accused's explanation for this being that the key had broken and he was having a new one made. The 6th accused, according to the 5th appellant, was able to start the car without the key and actually did this on the ferry on the way to Hong Kong Island.

14. In his Reasons for Verdict, the learned District Judge said that although the 5th appellant's behaviour from the time of his driving the car AD 2248 away from the scene of the robbery, up to the time prior to his first cautioned statement to Sergeant Lau, was as consistent with innocence and panic as with guilt, the evidence of what had taken place before that, inevitably pointed to his guilt; it was circumstantial evidence but from it only one conclusion could be drawn, namely that the 5th appellant knew all along that a robbery was about to be committed and lent himself to the project, waiting in the car with the engine running whilst the crime was perpetrated in order to facilitate his own and his companions' get-away; the fact that the engine of the car was running when he came down from the Billiard Hall must have meant that the 4th appellant and the 6th accused had gone to that hall for the sole purpose of fetching the 5th appellant since, had the drive been a suggestion made on the spur of the moment or had the purpose of the visit to the Billiard Hall been to ask the defendant for a loan, then the two visitors, not knowing how long they would be in the Billiard Hall, would have switched the engine off; the explanation of the broken key was incredible and the 5th appellant must have known that the car was a stolen car; no satisfactory explanation had been given for leaving the engine running in the disused Stubbs Road, and since Sergeant Chan, coming along in the patrol car, saw no one in the Morris, the 5th appellant must have been hiding himself in the car after which he suddenly popped up and hurriedly drove away.

15. At this point it is relevant to consider the two statements made by the 5th appellant. The first, that made at Sincere Building, Argyle Street, in the early hours of the 28th May, 1971, contained a deliberate and admitted untruth in that it attempted to establish an alibi with the claim that the 5th appellant had been dancing at the New Hoover Ballroom at the material time. The second statement, however, that made at Wanchai Police Station towards noon on the same day, retracted the story of an alibi and frankly admitted the driving of the Morris car to the scene of the robbery. This latter statement was in line with the 5th appellant's subsequent evidence except for two details. In the first place the visit of the 4th appellant and the 6th accused to the Billiard Hall was said to have been for the purpose of inviting the 5th appellant for a drive and not, as in evidence, to borrow money from him. Secondly, there was no mention in the statement of the two who committed the robbery, alighting for the purpose of relieving themselves but rather was it said that they wanted a walk. The discrepancies may not be very significant. In its important aspects this second statement was in very much the same form as the evidence which emerged from the 5th appellant in court.

16. Mr. Eddis, for the 5th appellant, argued that whilst the car was admittedly a stolen car and the robbery may well have been planned by the 4th appellant and the 6th accused, the learned judge was not justified in his conclusion that the 5th appellant was aware of either the status of the car or the intention to rob; to leave the engine running at Stubbs Road was a natural reaction to the fact that there was no ignition key and that to restart the engine would be a relatively tiresome matter; as a serving police officer, it was not surprising that, when other police officers arrived and interfered with what was clearly a robbery or some other crime on the part of his companions, the 5th appellant should panic and drive away; the circumstantial evidence was counter-balanced by the 5th appellant's own explanation, contained in his evidence and second statement, and did not amount to proof beyond reasonable doubt.

17. Mr. Eddis referred to the case of Reg. v. MAK Po-sun⁽¹⁾ where Jennings, J. said:

"It is always necessary before drawing the inference of an accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference."

18. We would add that a common, and in our view a desirable, formula employed in summing-up to a jury upon this matter is that where the evidence relied upon is circumstantial evidence it is necessary not only that guilt should be a reasonable inference from that evidence, but that it should be the only reasonable inference.

19. Another case quoted to us by Mr. Eddis was that of Reg. v. LAM Tin-chung⁽²⁾ where Mills-Owens, J. said:

"Without attempting to set any precise limits on what is required in a criminal case we would say that the closer a judgment comes to what would be expected in a summing up the less danger is there that an appellate court would find itself compelled to interfere."

20. We think that quotation apt in the circumstances of this case and that had the learned judge warned himself on the lines of the formula to which we have referred, he could not have come to the conclusion that guilt was the only reasonable inference, to be drawn from the circumstantial evidence. The circumstances are indeed highly suspicious but we do not consider that it can be said without any reasonable doubt intervening, that they point inevitably to guilt. On the evidence, when the 5th appellant first came to the car, it was already a stolen vehicle. There was no evidence either that he had any part in the theft or was informed of it. The reason for the engine having been left running was explained to him and though that reason might have been thought improbable, it was by no means impossible. Yet it was essentially upon the basis of the fact that the engine was running outside the Billiard Hall and the absence of any ignition key, that the learned judge found that the 5th appellant must have known the car to be stolen. Once having reached that conclusion, the judge was, of course, halfway to the finding that this appellant was a party to the planning of the robbery and was acting, in the disused part of Stubbs Road, as a get-away driver. The appellant's own explanations, however, (he gave two, not really inconsistent) of the reason for the 4th appellant and the 6th accused getting out of the car at that spot and of his leaving the engine running were credible enough, if not viewed against the judge's earlier conclusion that the 5th appellant knew the car to have been stolen.

21. As we have said, suspicion abounds but the question is whether the charge had been proved beyond reasonable doubt. Had the learned judge not previously concluded, on insufficient evidence, that the appellant knew the car had been stolen, his finding that the explanation of the appellant's flight was untrue could hardly have been attacked, for he saw and heard the appellant. Therefore we do not say that the judge's conclusion was wrong but we find ourselves unable to say that the explanation must necessarily have been disbelieved and accordingly we think it would be unsafe to allow this conviction to stand.

22. The 5th appellant's application for leave to appeal against his conviction on the 7th charge is granted and, treating the hearing of that application as the hearing of the appeal, is allowed; his conviction and sentence on that charge, are set aside.

23. Before turning from the charge of robbery, I record the fact that the 4th appellant appeals against his sentence of 12 months imprisonment imposed upon that charge. I will deal with that appeal when I come to deal with those of the 2nd and 3rd appellants against sentences upon the blackmail charges since the grounds put forward by all three of these appellants are substantially similar.

24. I turn now to the appeals against sentences and in order to deal with them intelligibly it is desirable to refer briefly to the facts of the six blackmail charges. As I mentioned at the beginning of this judgment, no single charge was levelled against all the appellants but, in different combination, all of them were charged with one or more of the six blackmail offences. In each instance the modus operandi was the same, that is, in each case either two or three of the accused, one of whom was usually in police uniform, visited the premises of an unlicensed clinic and there demanded money from the operator of the clinic as an inducement not to bring proceedings for conducting the clinic without licence. The respective sums demanded were $10,000, $10,000, $5,000, $2,000, $2,000 and $7,800 and those actually obtained, were $3,000, $3,000, $5,000, $3,500, nil and $7,800. In respect of the 6th charge, the victim was detained overnight in a boarding house by the 2nd and 3rd appellants and escorted, on the following morning, to a bank where he was told to withdraw all the money in his savings account; this he did, handing the proceeds of the withdrawal, some $7,800, to the 2nd and 3rd accused. At the time of the offences the 1st, 2nd and 5th appellants were serving policemen whilst the 3rd had resigned from the Police Force in 1970. Only the 4th appellant was not, and never had been, a policeman.

25. Having sketched in the facts, it will be convenient once again to relate each appellant to the total of charges which he faced and to the aggregate sentence which he incurred. These matters may be tabulated thus: -

26. Mr. Ming Huang, for the 1st appellant, said that the court should be satisfied that the aggregate sentence was adequate, but not excessive, and in this connection quoted the case of LUI Shu-tong v. The Queen⁽³⁾. Additionally there should not be such a disparity of sentence as between the 1st appellant and the other appellants as to leave the 1st appellant with a justifiable sense of grievance; the 1st appellant had not been concerned in the 6th charge, which might fairly be regarded as the gravest, involving as it did the overnight detention in a boarding house of the victim in that case.

27. It is entirely true that the 1st accused was not associated with this, the 6th charge, but equally true that he was involved in every one of the other five. No single sentence imposed upon him was longer than 18 months although two groups of concurrent sentences were ordered to run consecutively with the result that the total sentence upon the 1st appellant was three years imprisonment.

28. We are wholly unable to say that this aggregate term is in any way excessive or that it results in a disparity of sentence as between the 1st appellant and any of his co-accused such as would justify a legitimate sense of grievance in the 1st appellant and his application for leave to appeal against sentence must be refused.

29. The 2nd, 3rd and 4th appellants were unrepresented upon their appeal; the 2nd appellant said he deserved the sentence imposed upon him whilst the 3rd, said he knew that he had done wrong and that there was no way of making up for that except by a term of imprisonment.

30. The 4th appellant did not appeal against his conviction for blackmail and, as already recorded, his appeal is against the consecutive sentence of 12 months imprisonment imposed upon him for the robbery. offence.

31. The grounds of appeal of all three followed the hackneyed lines so familiar to this court, namely the desirability of an early release so as to be in a position to contribute to the support of the family; We have reiterated time and again that the significant time to ponder the effect on the family of a term of imprisonment is before the crime is committed rather than at the stage when that inevitable effect has begun to make itself felt. The appeals of the 2nd, 3rd and 4th appellants are entirely without merit and their applications for leave to appeal must be dismissed.

32. Mr. Eddis, for the 5th appellant, pointed out that the 3rd appellant, who was associated with the 2nd and 5th in the 6th charge, had received a sentence of two years' imprisonment which was precisely the sentence imposed upon the 5th appellant, although the latter had faced only one charge as against the four levelled against the 3rd appellant and, unlike the 3rd appellant, had taken no part in detaining the victim overnight. These are matters which counsel legitimately brings to our attention but they do not persuade us that the sentence imposed upon the 5th appellant, for his very serious crime, was in any way excessive; rather was the 3rd appellant perhaps fortunate in the aggregate sentences imposed upon him for four different offences.

33. Whilst the 5th appellant's appeal against conviction upon the robbery charge has succeeded, and his sentence of three years imprisonment been set aside, his application for leave to appeal against sentence upon the blackmail charge must be refused.

Representation:

Ming Hwang (H.M. Soo & Co.) for 1st appellant

2nd, 3rd and 4th appellants in person

F. Eddis (S. Soo & Co.) for 5th appellant

William Chan, counsel for the Crown.

(1) 1965 H.K.L.R. 281 @ 285

(2) 1970 H.K.L.R. 105 @ 113.

(3) 1961 H.K.L.R. @ 129