Chiu Wing-on and Others v. The Queen

CACC001069/1981

BETWEEN

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

Date: 16 June 1982

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JUDGMENT

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McMullin, V.-P.:

1. The three appellants are three out of an original five persons charged before the District Court on a number of charges. These were charges of robbery and charges relating to offences in relation to a motor vehicle. All five were convicted and we are concerned now only with three of the original defendants and with only two of the charges.

2. The first charge with which we are concerned is one of robbery and the second is a charge of being carried in a conveyance taken without authority, contrary to section 14(1) of the Theft Ordinance.

3. All the defendants originally appealed against their convictions but two of them, the 2nd and the 5th defendants, subsequently abandoned their appeals and the present applicants were granted legal aid solely for the purpose of having Grounds of Appeal prepared for them. They were refused leave to appeal on the 6th of March 1982. They renewed their applications on the 22nd of that month.

4. The agreed facts relating to the robbery charge are as follows. A Mr. and Mrs. Choi were proposing to visit Mr. Choi's mother in Tsuen Wan on the 17th of April 198l. They drove to Tsuen Wan in Mr. Choi's motor car BN 4374. They parked the car at about 9.50 p.m. and having got out of the car, Mr. Choi locked the doors when suddenly they were approached by two men armed with knives who pointed these knives at the waists of Mr. and Mrs. Choi and forced them onto a construction site about 50 feet from the car. At that place they saw three other men standing near a dual purpose van. The first two, the armed men, ordered them to squat down beside the dual purpose van and to yield up their property. They were thus relieved of a quantity of cash - $140 in the case of Mr. Cho and $100 in the case of Mrs. Choi and some coins as well. Mr. Choi was also relieved of a "Citizen" watch and a golden colour Dupont lighter and a set of ignition keys. Their hands were tied with nylon cord and one of the robbers forced the two Chois to get in to the back of the dual purpose van. One of the men remained with them in the van until a passing vehicle had gone away. He then warned them not to make a report to the police and he and the other four drove off in Mr. Choi's car. Mr. Choi was able to see this through the window of the van.

5. The Chois managed to free themselves and they walked from that place to Tsuen Wan Police Station where they made a report of the robbery.

6. Meanwhile a mobile police patrol was in action in the vicinity of King's Park Road and at about 11.00 p.m. this patrol, consisting of five officers, observed three men standing behind a car which was parked at the kerb of King's Park Road. The boot was oven. Their suspicions concerning these men were aroused and they left their police patrol van and approached the men rapidly calling out their identity and telling them not to go away.

7. The evidence of the officers was that the three men who were at the back of the car seemed about to make off but were checked by the police. When the police approached, they observed that there were two other men actually inside the motor car at the rear.

8. There was some discrepancy in the evidence of the police officers as to the movements of these latter two men. The 1st and the 4th witnesses said that these men rushed out of the car and the 4th witness said that he actually had to chase one of the men before he caught him. The 3rd witness said merely that he stopped one of the men who turned out to be the 2nd defendant at the nearside door without any chase. The 6th witness said that one of the men was trying to get out of the nearside door when he kicked that door closed and struck the man upon the head. He said that this was the 2nd defendant. At all events it is undisputed that the two persons in the back of the car were the 2nd and 3rd defendants. The 3rd defendant is the 2nd appellant.

9. One of the police officers then approached one of the five men (the 5th defendant) and he searched him and discovered a screw-driver concealed in his clothing. He was asked what he was going to do with this and the defendant replied that it was his intention to pry open the driver's door in order to take the car for a joy ride. I should mention that the car upon which the police had come in this way was the car which had beer stolen from the Chois - BN 4374. One of the police officers caused the 5th defendant to open the driver's door. He was able to do so as the lock had been tampered with. Inside on the floor of the car near the gear lever at the driver's seat an 8-inch long knife was discovered wrapped in newspaper. According to that officer, he asked the 5th defendant who owned the knife and he said that it "belonged to them".

10. Obviously at this stage the police were interested in the possession of offensive weapons or other incriminating articles. They called the 5 men to line up and a body search of some kind was carried out upon each of them. So far as the evidence for the prosecution goes, it would appear that nothing which was of interest to the police was discovered in the course of that body search. One of the officers refers to finding an identity card and some money in the possession upon the 2nd defendant and he returned this property to him. All five persons who had been arrested were searched in this way and it would appear that any property which had been found upon them was returned to them in A similar manner. It is, perhaps, a little unfortunate that the evidence on this matter was not more detailed and that the police officers involved in the search had not seen fit to make a note precisely of what they discovered during the body search. It is certainly true that if upon that search the items of property stolen from the Chois at Tsuen Wan had been discovered in the possession of these defendants, that would have been a clinching factor in the case against all five. At all events we had no evidence that any of this property was found upon them at that time.

11. A police car was summoned by radio phone. It was in fact a police van and the 5 prisoners were put into it, handcuffed together, and they were seated on the bench seat on the right side of the van. They were then taken from there to Yaumati Police Station. There were two officers at least in the van with them but the evidence was that it was very dark inside the van. When they got to the police station, a series of statements was taken from them. Statements had already been taken from two of the prisoners at the place at which they were arrested. These were taken at about 11.30 and 11.45.

12. Following their detention at the police station, other statements were taken from them. Many of these statements have been put in evidence and they relate to the investigation concerning the theft of the motor car, the theft of the property and the offensive weapon discovered in the car. None of those statements amounts to anything in the nature of confession on the part of any of these three appellants. It is somewhat surprising that they appeared in evidence at all.

13. The next item of importance in the case is the fact that at about 5.15 on the night between the 17th and 18th of April while the van in which the defendants had been transported to the police station was standing outside the police station one of the officers, who had been involved in the arrest of the prisoners, went to the van and discovered within it, underneath the right hand bench seat, the ignition keys of Bid 4734, the golden colour Dupont lighter and the Citizen watch, the stolen property. Clearly this was strong evidence against the appellants. The judge concluded that the circumstances thus described were susceptible only of the inference of guilt in relation both to the robbery and the taking of the car without authority. He said:

"The likelihood that that evening or early that morning the police at Yaumati had already picked up one or more persons for an offence who were in possession of items stolen from Mr. Choi and Madam Lam and that they later found the vehicle in the possession and control of these defendants and that there is no connection between the two is, in my view, most unlikely."

The phrase "most unlikely" is, perhaps, not entirely fortunate but I think we must assume that in so saying what the judge meant was that the circumstances compelled him to the inference of guilt beyond reasonable doubt.

14. Grounds of Appeal were prepared on behalf of the appellants. Each of the appellants has adopted those grounds of appeal and added something on his own part. One of those grounds can be immediately dismissed. It was to the effect that there was a misdirection on the basis that the judge was among to find the defendants involved in the robbery for lack of clear evidence as to whether the two victims had been robbed by 5 persons who also took away the vehicle after the robbery. There is no substance in that ground. Mr. and Mrs. Choi were not called' as witnesses but under the relevant provisions of the Criminal Procedure Ordinance, the statements made by them to the police, after they reported the robbery, were received in evidence and were conceded by the defence to be factually correct. Those statements indicated very clearly that 5 persons were involved in a robbery and were so associated with each other that at the time the car BN 4734 was driven away the only reasonable conclusion was that these 5 persons were the persons who had taken part in driving it.

15. The remaining grounds, the only substantial grounds, turn upon a single supposition. That is the possibility that 5 men other than the 5 defendants were the people who had robbed the Chois and had driven off in their car and had abandoned that car at King's Park Road and then were arrested by police, whether before or after the arrest of the 5 defendants in this case, and that those other 5 persons or some of them were carried in the very van which was used to transport the 5 defendants; finally, that those other 5 persons or some of them had managed to dispose of the stolen property while they were being carried in that van. Merely to recite this possibility is to realize what an extraordinary series of coincidences that would involve. It would be wholly unrealistic to give this possibility countenance in the absence of anything to support it.

16. The only factors in the evidence which are capable of giving pause are, firstly, the fact that the stolen property was not discovered in the possession of the 5 defendants when they were first arrested or, if it was, that there is no evidence of this being so. That factor, however, is to he explained by the fact that the police were obviously looking for something in the nature of offensive weapons and the items which were part of the stolen property are in themselves items of an innocuous or neutral nature such as might be expected to be in the possession of any person.

17. The second factor which might have given us some difficulty is the fact that there is an absence of evidence as to the movement and custody of the police van in which the stolen property was discovered between about 11.50 on the 17th of April and 5.00 a.m. the following morning. It is a pity that the Crown did not seek to cover this particular passage of time because it might then have been very clearly established either that the van had not been used in any way at all either before or after the arrest of the 5 defendants or else had been employed in a manner which left do ground for the suggestion that the stolen property had been left in it by some person or persons other than the 5 defendants.

18. The third point which raised some possibility of doubt relates to the question whether it was possible for these 5 persons to dispose of the property while within the van in view of the fact that they were all handcuffed together. Again, the point is not of serious substance. Four sets of handcuffs were used to secure the 5 prisoners and that meant that sitting on the bench there would be a man at either end of the line who would have a free hand. Even those whose hands were actually secured might well have been able to manoeuvre sufficiently to reach items within trousers or jacket pockets provided they did so sufficiently quietly to remain unobserved. The interior of the van was dark and such a movement could have occurred without being detected.

19. We are satisfied that the inference drawn by the trial judge was one which he was justified in drawing and in regarding it as the only rational inference which in the circumstances he could draw.

20. The factors giving rise to possible doubt to which I have referred are not of such force or weight as would prompt us now to feel that that finding was insecure.

21. At the hearing of the appeal before us, in addition to relying upon the grounds prepared for them, the defendants put forward certain other matters  for our consideration. The first appellant points out that they were never identified and that is perfectly true. The reason for that, no doubt, is that at the time of the robbery it was dark and there were no street lights in the vicinity. Then he said - and this is a point one which the others, I think, would seek to rely - that the victim Choi had told the police that the robbers spoke Punti whereas these present appellants, as they allege, speak only Mandarin. It is true that at the outset of the trial, it was announced on their behalf that they desired to have the evidence translated to them in Mandarin. However, when one looks at the statement of Mr. Choi, all that he said was that one of the robbers - and it would appear the one who dealt with him principally and gave the orders to himself and his wife - was a person wearing a red and a blue check shirt, that he had an "ordinary hair-cut" and that he was a Punti speaker. To say that that man was a Punti speaker is by no means proof that the others were also Punti speakers. It might well have been, indeed, that had Mr. Choi been called to give evidence and he had been pressed on this matter he might have given evidence which was against the interests of the defendants. It is part of their case that the 5th defendant was not a person known to them, although the 2nd defendant was. If Mr. Choi's evidence had gone so far as suggesting that only one of them spoke Punti and the others spoke another dialect, that might have been very adverse to the interests of the defendants.

22. Then it is pointed out that there is a lack of fingerprint evidence against them at least in so far as the dual purpose van is concerned. That is true. If that van was investigated for the purpose of fingerprinting, no relevant fingerprints can have been found thereon or we could no doubt have heard of it.

23. On the other hand, fingerprints were lifted from the stolen car and these included fingerprints of the 1st and 3rd appellants as well as a print of the 5th defendant. That is a matter of some importance in relation to what was urged upon our attention by the 2nd and 3rd appellants. For what they say now amounts to a belated alibi. They each described to the court how they had gone on the night of the robbery to play mahjong with some associates in the staff quarters of Queen Elizabeth Hospital. They said that having lost money there and being very much reduced in financial resources, they decided to leave. It was alleged that the 3 appellants were involved in this gambling at Queen Elizabeth Hospital and that they left there together at about 10.40 or 10.45. When making their way to premises which they shared in Waterloo Road, they were proceeding along King's Park Road when they encountered the 2nd defendant, a person known to them, who also lived at Waterloo Road, and the 5th defendant who was a person not previously known to them. They allege that they were stopped by these two and that the 2nd defendant proposed that they should go for a joy ride in a motor car which would be supplied by the 5th defendant. As they were discussing this, and before they had approached any motor car, a police car came up and five police constables jumped out of it and arrested them. They were handcuffed and searched and taken to police station. None of the defendants gave evidence on the general issue and we can give no weight to this belated endeavour to raise an alibi.

24. The 3 appellants were represented in the court below. They chose not to give evidence at the trial. The only explanation for the belated alibi and the failure to produce it earlier given to us by the 2nd appellant is that he was unfamiliar with the law in Hong Kong and that he was told by his counsel not to give evidence. We cannot, for a moment, accept that counsel would simply have silenced him and forbidden him to give evidence although it might be that counsel advised him not to do so. But whatever was said to him, we are satisfied that he must have been told, and must have realized, that it was his own choice as to whether he gave evidence or not. Evidence of the kind which he now, in effect, seeks to put before us was evidence of such vital importance to his case that the endeavour to produce at this late stage can only be regarded with the very greatest suspicion.

25. The 3rd appellant while adopting the same stand as the 2nd appellant in addressing us added something more. He said that when the victim was taken to the cell where he and his two companions were held, not only was the victim unable to identify any of them but the victim had positively said that they were not the robbers. If any such thing had occurred, it must necessarily have been put to the relevant witnesses in the course of the prosecution case. It is not possible that such important information would have been withheld from counsel, or from the solicitors involved, or that if given, it would not have been put to maximum use in the course of the trial.

26. It is part of the agreed facts, in the statements of the victim witnesses, that Mr. Choi and Mrs. Choi were unable to identify any of the robbers. It is not part of the agreed facts that they were positively able to state that the persons whom they were shown in the police station were not the robbers.

27. We have considered all these grounds of appeal, both those prepared by their professional advisers of the appellants and the matters put before us. We are satisfied that there is nothing in them sufficient to disturb this verdict and the applications must, therefore, be refused.

28. I should add that in refusing leave upon the renewed applications, the single judge ordered 60 days loss of time and we confirm that order.

Representation:

All 3 appellants in person.

C.G. Jackson, for Respondent/Crown.