R. v. Chan Chor-fung and Others

CACC000507/1991

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Coram: Hon Sir Derek Cons, V-P, Silke, V-P and Macdougall, JA

Date of Hearing: 26 August 1992

Date of Judgment: 26 August 1992

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J U D G M E N T

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Sir Derek Cons, V-P:

1. This is the judgment of the court.

2. Shortly before 6.00 p.m. in the evening on 30th September 1990, five men rushed into the Aberdeen Fishery Merchants Association premises on a first floor in Aberdeen. There were in the premises a number of people, men and women, playing mahjong and cards. One of those who rushed in held a loaded pistol which was cocked and ready to fire. Another had something that appeared to be a pistol, and the third was carrying a large knife. They declared that they were in execution of a robbery. The two other men then tied up the persons there, gagged them with adhesive tape, and relieved them of their valuables and money. Those two others were the 2nd and 3rd defendants in the proceedings below. All fled when the police arrived, alerted by an Association member who stumbled, unobserved, upon the robbery in progress. One robber escaped, the other four were arrested.

3. The 2nd defendant, the only one of the four to plead not guilty, is now applying for leave to appeal against his conviction. His evidence was that he remained outside the premises in the car in which he had driven the others there. They went inside, refusing to let him accompany them. The police came by, and finding that he had no identity card arrested him. The police then learned on their radio that a robbery was taking place inside the premises in question and took him inside with them.

4. That evidence was rejected unanimously by the jury. They were no doubt satisfied of his presence and participation in the robbery from the ample evidence that was against him.

5. Firstly, there was the evidence of the two constables who said that they arrested him inside the corridor of the building as he was trying to make his escape. Secondly, there was the evidence of one of the victims who identified him as the man who tied him up from the T shirt he was wearing. Thirdly, there was the evidence of the 3rd defendant, of course an accomplice, that the 2nd defendant was as much a party to the crime as he was.

6. We have today been presented with a document written in English which the 2nd defendant has asked us to accept in substitution for the original grounds that he filed in his Notice of Appeal. It has been written by somebody on his behalf. Its principal point is that the 3rd defendant has recanted the evidence he gave to the court below, and suggests that he would now be willing to give evidence that the 2nd defendant did not take any part in the crime. We have also been handed a letter apparently written by the 3rd to the 2nd defendant in which he clearly admits that his evidence was false and confirms that the 2nd defendant did not go inside the premises in Aberdeen.

7. We do not know whether the 3rd defendant would be willing to go into the witness box now and give evidence on oath in accordance with that letter, subjecting himself thereby, as he would, to the possibility of further prosecution. We are not persuaded that he should be given that opportunity. The evidence he would give would be in absolute contradiction to the evidence which he has already given on oath before the court below and would thus, from its very nature, be completely valueless.

8. The rest of the written document repeats in general the evidence that the defendant gave in the court below, and which he himself has again repeated to us today. It questions also other matters, such as the evidence by way of corroboration and the inability of any of the victims to recognise the face of any of the robbers. It emphasises the fact that one of the victims said that only four robbers entered, which would be consistent with the defendant's evidence. It complains of the way in which the judge dealt with the defendant's previous convictions and the possibility of his telling lies to the jury. In our view the judge dealt quite properly with all these matters in his summing up.

9. Today the 2nd defendant has queried that the civilian witnesses were not required to produce their identity cards when giving evidence and that such cards were not given to the jury for their perusal. That is not a practice of this court and we see no reason why it should be.

10. In our view there is no merit in the grounds suggested and the application for leave to appeal against conviction is therefore refused.

Representation:

A.A. Bruce, Crown Prosecutor for the Respondent

Barry Sceats, assigned by DLA for D2, D3 and D4 (re: sentence)

D2 in person