HKSAR v. Choi Kuk Shek, Kendy & Another

CACC000544/2002

CACC 544/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 544 OF 2002

(ON APPEAL FROM HCCC NO. 180 OF 2002)

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Coram : Hon Stuart-Moore V-P, Woo JA and Jackson J in Court

Date of Hearing : 22 August 2003

Date of Judgment : 28 August 2003

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

1.These are applications for leave to appeal against both conviction and sentence made by the 1st applicant and the 2nd applicant who were respectively D1 and D2 on trial before Mrs Justice V Bokhary and a jury in the Court of First Instance.

2.The 1st applicant faced six counts, including four counts of robbery (Counts 1, 2, 4 and 6), one count of attempted rape (Count 3) and one count of rape (Count 5). The 2nd applicant only faced Count 6, the robbery charge.

3.The jury found the 1st applicant guilty of the six counts and the 2nd applicant guilty of Count 6.

4.Regarding the 1st applicant, the Judge imposed a sentence of 8 1/2 years' imprisonment on the Count 1, 7 1/2 years on each of Counts 2 and 4, 4 1/2 years on Count 3, 6 years on Count 5 and 8 years on Count 6. She ordered the sentences on Counts 1, 2, 3, 4 and 6 to run concurrently and 3 1/2 years of the sentence on Count 5 to run consecutively, making a total of 12 years' imprisonment for the 1st applicant. Regarding the 2nd applicant, the judge imposed a sentence of 7 1/2 years' imprisonment on him in respect of Count 6.

Prosecution case

5.The prosecution case on the six counts was that on four occasions between 20 September 2001 and 4 January 2002, the 1st applicant, either alone or with another person, committed the six offences. Count 1 was committed by the 1st applicant with another person unknown, Count 4 was committed by the 1st applicant with another person unknown and Count 6 was committed by the 1st applicant and the 2nd applicant together. The other offences were committed by the 1st applicant alone. The six offences related to three victims who were prostitutes operating in the Wanchai area at three different addresses which were one-woman brothels. Madam Lam was the victim of the Count 1 robbery that took place on 20 September 2001. Madam Chan was the victim of the Count 4 robbery and the Count 5 rape that took place on 1 January 2002. Madam Pong was the victim of the Count 2 robbery and Count 3 attempted rape that took place on 10 November 2001 and the Count 6 robbery that took place on 4 January 2002.

6.Each of these victims gave evidence before the court. The judge summarised their evidence as follows:

"The victim named in Count 1, Madam Lam, gave evidence to the following effect. In the late afternoon on the date stated in Count 1, two men came to her flat also stated in that count. They were posing as customers, and wanted to come into the flat at the same time. But she only allowed one in at a time. So one man, whom I will refer to as 'the first man', came in while the other man, whom I will refer to as 'the second man', waited outside the flat.

Members of the jury, it is, as you know, the prosecution's case that the first man was the 1st accused while the second man is the person referred to in the Count 1 as 'another person unknown.'

... She had sexual intercourse with the first man, and while he was in the shower, she admitted the second man into the flat. Acting together, with the second man threatening her with a knife and the first man helping by manhandling her and tying her up and gagging her, the two men robbed her of her property consisting of the laptop computer, the mobile phone, the two watches, a passport holder, a jewellery box and a gold pendant named in Count 1 along with an amount of cash which she estimated in her evidence at anything from $1,500 to $3,000, $1,950 being the amount named in the count, that is Count 1." (Tr. p 12G-T)"

"Members of the jury, I now turn to Counts 4 and 5. The victim named in these two counts is Madam Chan, ....

... At about 7.25 pm on 1 January this year [2002], she opened the door to a man posing as a customer. He entered the flat and covered her mouth. Another man followed him into the flat. The second man who entered the flat bound her with plastic straps and blindfolded and gagged her with adhesive tape. Later, the gag was removed, but she remained bound and blindfolded. While she was bound and blindfolded, she was questioned as to where she kept her money, handbag and mobile phone.

She heard the noise of the flat being ransacked. Then, with her still bound and blindfolded, she felt one of the men having sexual intercourse with her, which was without her consent....

....

...She said, after this, while she was still bound and blindfolded, she was asked for the secret code of her bank card, and she gave it. Then the two men left, and she managed to free herself, check what was missing and call the police. She found that $700 in cash, her mobile phone, her Standard Chartered Bank Visa Card, her Hang Seng Bank ETC card, her closed circuit television recording system and her Octopus card were missing from the flat.

Members of the jury, that is the property named in Count 4..." (Tr. pp 19G-20O).

"I turn now to the evidence of Madam Pong, the victim named in Count 2, 3 and 6. Counts 2 and 3 respectively charge that in Madam Pong's flat on 10 November last year [2001], the 1st accused, on his own, robbed and attempted to rape Madam Pong. Madam Pong's evidence about what happened on that occasion may be summarised as follows. At about 6 pm on 10 November last year, a man entered her flat posing as a customer. He menaced her with a paper cutter. She told him where she kept her money. She asked him not to hurt her, and he said that he had only come for the money. He told her to sit on the bed which she did. He then put on some gloves and took out some black straps from his rucksack. He used them to bind her hands, and then bind her feet. He then gagged her with a towel. And he used adhesive tape to reinforce the gag, and then he used adhesive tape to blindfold her.

She heard the noise of the drawer being searched. He asked where her mobile phone was. She said she had sold it. He asked her about her PIN number, and she gave it to him. She felt him unzipping and lowering her skirt, cutting her tank top and bra straps, and cutting her underpants. He fondled her breasts and lower parts. She heard him unzipping his own trousers, and although she was not willing to have sexual intercourse with him, she wanted to avoid catching sexual disease if sexual intercourse was to take place. So she asked him to use a condom, and he said that he would. She then felt him trying to insert his penis into her vagina, but she did what she could to make that difficult for him, and she felt his penis go soft. Eventually he stopped trying after about a minute. Shortly thereafter, she heard him leaving the flat. She managed to free herself. She discovered about $1,000 to $1,200 of her money missing, and she also discovered that her Nanyang Commercial Bank ETC card was missing. She did not report the matter to the police." (Tr. pp 24R-25Q)

"Count 6, you will remember, charges that both accused robbed Madam Pong in her flat on 4 January this year [2002]. Madam Pong's evidence as to what happened on 4 January this year may be summarised as follows. At about 6 pm on 4 January this year, she opened the door to a man posing as a customer. He entered the flat and they went to a room where the man produced a cutter. She was only wearing a towel at the time and it fell off. He took out some plastic straps from his bag which he had with him. The telephone rang. After some discussion as to whether she should answer it, she was permitted to answer the phone under threats not to reveal what was going on.

But after she was robbed in November last year, she had arranged with a friend a form of words by which she would signal that she was in trouble. She gave that signal over the telephone. After that, the man bound her. He then took about $1,500 of her cash, her mobile telephone and her ETC card. He then asked for her PIN number which she gave to him. Then with the cutter near her neck, he took her to the main door and admitted another man into the flat. That other man she recognised as the man who had robbed her on 10 November last year.

With both men in the flat, the doorbell rang and kept ringing. There was then a discussion between her and the two men which resulted in an agreement or understanding that they would give her back her property and that she would forget about the matter, not reporting it. She was released from her bonds and her cash was returned to her. After checking through the peephole of the main door, the two men left. She then made two telephone calls, one to the police reporting the matter and one to her friend.

She then put on some clothes, left the flat, and went downstairs to the lift lobby. Then she saw the two men who had been up at her flat. She told the police officer that these were the two men who had just robbed her. She saw in the possession of the police her mobile phone which the robbers had taken. She identified the telephone to the police to be hers." (Tr. pp 26B-27C)

The first applicant's grounds against conviction

7.The 1st applicant raises a number of grounds of appeal against conviction, mostly relating to the quality of the evidence adduced by the prosecution and the judge's failure to highlight the discrepancies in such evidence to the jury, and in particular on the failure on the part of Madam Lam and Madam Chan in identifying him at an identification parade held on 10 January 2002 at the police station.

8.We do not accept that any of these grounds have any substance. We will deal with these grounds seriatim below.

Count 1

9.The 1st applicant raises seven points against his conviction of robbery on Count 1. His first complaint is that while Madam Lam admitted that she did not identify the 1st applicant in the formal identification parade held in the Wanchai Police Station on 10 January 2002, the judge did not remind the jury of that but instead tried to explain to the jury that Madam Lam was very frightened at the parade. This complaint is not supported by facts. At the trial, it was an admitted fact between the prosecution and the defence that at the identification parade held on 10 January 2002 at 5:13 pm at the Wanchai Police Station in which both D1 and D2 were present Madam Lam failed to make any identification. Throughout the judge's summing-up to the jury, there was no mention of this admitted fact. She only warned the jury of the special need for caution when dealing with identification, in accordance with R v Turnbull [1976] 63 Cr App R 132. She did not give any explanation as to why Madam Lam, or for that matter, Madam Chan (the victim of Counts 4 and 5) who, it was also admitted, failed to make any identification at the same parade at 5 pm on the same day. She did not say that these two victims were frightened as the reason for their failure to make identification. The judge only mentioned the word "frightened" after giving the Turnbull direction. She said:

"In addition, you ought to remember the frightening experience which the witness underwent. So you must decide, using your common-sense and your experience of the way people behave, what effect you think that that might have had on the ability of the witness to make an accurate identification. You may think that different people react differently to such experiences. Some people are affected worse than others. So you should ask yourselves what effect the frightening nature of the experience had on the witness's ability to make an accurate identification. All those are the sort of matters you must consider in determining how reliable the identification evidence actually is." (Tr. pp 6S-7E)

10.The reference by the judge to "frightening experience" in the context can only properly be understood to be a factor that might affect the reliability of the identification evidence, and cannot in any sense be treated as an explanation as to why the two victims, Madam Lam and Madam Chan, failed to identify the 1st applicant or the 2nd applicant at the formal identification parade on 10 January 2002, as the 1st applicant would like us to take it to be. This complaint has no substance whatsoever.

11.The second point under Count 1 raised by the 1st applicant refers to the discrepancy between Madam Lam's evidence and PC1252's evidence on the circumstances under which a condom was seized. It was the prosecution's case that the condom had been used by the 1st applicant. The complaint is that the judge did not draw the attention of the jury to the significance of the discrepancy. This complaint has no substance because it is contrary to the fact: the judge did draw the attention of the jury to the discrepancy. She said:

"... First of all, there is the DNA evidence. You will remember Madam Lam's evidence that she pointed out to the police the condom used by the robber who had sexual intercourse with her before robbing her.

As to the seizure of the condom, there are some discrepancies between the evidence of Madam Lam and that of Constable Sin, PC1252. The constable's recollection is that Madam Lam had told him that she had changed the rubbish bag in the dustbin, and that he only found one condom wrapped in tissue in the dustbin. That, according to the constable, was the condom that he seized. Madam Lam, on the other hand, said that beneath the condom used by the robber and later seized by the police was some tissue paper under which there were other used condoms.

These discrepancies do not preclude you from concluding that the condom seized by the police was the one which the robber had used. But you should take those discrepancies into account in deciding whether to so conclude." (Tr. p 13E-O).

12.Point 3 under Count 1 is that the prosecution showed Madam Lam in court for identification four items of the 1st applicant's jewellery that had been listed as exhibits, to see whether they were those worn by the culprit at the material time. Madam Lam identified the four items as worn by the culprit, but she also admitted that she had never mentioned about her identification of the patterns and features of the jewellery items when she first gave her witness statement to the police. The 1st applicant alleges that the judge was unfair to have told the jury that Madam Lam had spent two minutes to make a meticulous examination of the four items and improperly analysed such evidence to the jury. This complaint is again removed from the facts. On this matter, the judge directed the jury as follows:

"Members of the jury, still on Count 1 against the 1st accused, there is also the evidence which Madam Lam gave as to the jewellery worn by the first man. In court, she was shown jewellery matching that description plus a bracelet. She identified all the jewellery she was shown, including the bracelet, as jewellery which the first man had been wearing when he robbed her. You will remember the evidence she gave as to how much attention she had paid to these items of jewellery and why she was able to remember and identify the same.

Members of the jury, you will remember the evidence of Constable Leung, that is PC46284, that the 1st accused was wearing all that jewellery at the time of his arrest on 4 January this year. All this jewellery has been produced as Exhibits P44 to P47. The 1st accused does not deny that he was wearing this jewellery at the time of his arrest, but he does not accept that the jewellery is distinctive.

Members of the jury, there is no suggestion that the jewellery is unique. Even so, is it at least so distinctive that somebody would remember it? And if Madam Lam is correct in her evidence that the jewellery produced in court is similar to the jewellery worn by the robber, is it too much of a coincidence that the robber and the 1st accused would be different men who just happened to be wearing so many items of similar jewellery? These are matters which you are entitled to take into account, if you see fit. You may examine the jewellery for yourself during your deliberation, and use your commonsense." (Tr. pp 16K-17E)

13.We do not see any unfairness caused by this passage to the 1st applicant. The judge is fully entitled to raise with the jury matters which she considered relevant to the issue to be decided. After all, even though she might have expressed her own view on the evidence, she merely told the jury that they were entitled to take it into account, if they see fit. She had also explained to the jury:

"In the course of this summing-up, I will refer to the facts. But if I seem to express a view of the facts, you must reject that view if it does not appeal to you. Also, if I omit to mention evidence which you think is important, you must take it into account even though I have omitted to mention it. And if I stress evidence which you think is unimportant, you must disregard the fact that I have stressed it. Remember always, the facts are for you alone as the sole judges of fact. Nothing that I say, or counsel say, as to the facts matters, because ultimately it is for you to make up your mind as to what the facts are having heard the evidence." (Tr. pp 1Q-2C)

14.Point 4 under Count 1 states that it was a grave mistake of the judge to permit the victim Madam Lam to remove from the exhibit envelope the exhibits concerned, ie, the jewellery items, that belonged to the 1st applicant for the purpose of identification. We do not need to dwell on this point as it is nonsense.

15.Point 5 under Count 1 relates to whether the Cartier watch that was alleged to have been stolen from Madam Lam was genuine or a fake. The complaint is that the judge failed to give a detailed account of the evidence in this respect. Again this complaint is contrary to the facts, because the judge did give a very detailed account of the evidence on the Cartier watch to the jury. She said:

"Next there is the evidence relating to the Cartier watch, Exhibit P77. Madam Lam said that one of the watches taken by the robbers on 20 September last year was this Cartier watch, which she identified in court. You will remember the prosecution's evidence to the effect that this watch was recovered from a pawn shop by the police on 11 January this year using a pawn ticket which Constable Leung, PC46284 - who is now a sergeant - found in a wallet in the pocket of the jeans worn by the 1st accused when he was arrested on 4 January this year.

You will remember the evidence that this watch was pawned on 21 September last year, that is one day after the robbery. As to who did the pawning, you will remember the evidence of the pawnbroker who said that this watch was pawned by a man carrying an Identity Card number C650380(0) in the name Choi Kuk-shek. Members of the jury, as you know, that is the 1st accused's name, and you have heard evidence that that is the 1st accused's Identity Card number. The evidence is that this watch was pawned for $6,000 because the pawnbroker believed it was a genuine Cartier.

When the first accused went into the witness box, he accepted that he had pawned a Cartier watch to this pawnbroker. It was, he said, his former girlfriend's watch which she had let him pawn. It was not, he said, Madam Lam's watch. Members of the jury, the 1st accused neither gave nor called any evidence as to whether the watch he says was his former girlfriend's watch was genuine or counterfeit. There is no evidence from the Cartier company as to whether the watch produced in court is genuine or counterfeit. Madam Lam's evidence is that she was not sure if her watch was genuine because it was a gift from a friend who had paid $1,300 for it.

Defence counsel suggest that the watch which the 1st accused had pawned and which has been produced in court is genuine. The pawnbroker believed that the watch was genuine. You will consider this. On the other hand, you will remember that the pawnbroker said that it would not be surprising if he made a mistake over whether a watch like this one was genuine or counterfeit, and you will remember Madam Lam's evidence of how she identified the watch as hers by the scratches, recounting how these scratches came to be made.

You will remember the cross-examination by defence counsel disputing the accuracy of Madam Lam's identification of the Cartier watch. You may think that the most cogent evidence which she gave in that regard was her evidence that she could recognise the watch by the scratches on it. She told you how, according to her, the watch had come to be scratched like that." (Tr. pp 14R-16D)

16.The sixth point under Count 1 made by the 1st applicant was on the uncertainty of the evidence of Madam Lam as to the amount of money stolen from her. It is asserted that the judge was unfair to tell the jury that the amount was immaterial. In her summing-up, the judge enumerated the items of properties stolen from Madam Lam under Count 1, and continued:

"... along with an amount of cash which she estimated in her evidence at anything from $1,500 to $3,000, $1,950 being the amount named in the count, that is Count 1.

Members of the jury, you will remember the whole of Madam Lam's evidence, and you are entitled if you see fit, to feel sure that she was indeed robbed by two men as alleged in Count 1. The precise amount of cash taken is immaterial to your verdict, so the real question, you may think, is whether you are sure that the 1st accused was the first man, as the prosecution alleges and which the 1st accused denies." (Tr. pp 12S-13D)

17.The particulars of the offence of Count 1 state that the 1st applicant, on 20 September 2001, at an address in Wanchai, together with another person unknown, robbed Madam Lam, of one "Asus" laptop computer, one "Motorola V66" mobile phone, two watches, cash $1,930 Hong Kong currency, one passport holder, one jewel box and one gold pendant. All these items were enumerated by the judge in her summing-up (see paragraph 6 above), and it was only relating to the cash that had been stolen that there was a difference between the amount stated in Count 1 and the amount Madam Lam told the court. In the circumstances, it is correct for the judge to say "the precise amount of cash taken is immaterial to your verdict", especially where the crux of the issue, as the judge clearly stated, was whether the 1st applicant had taken part in the robbery. In our view, this had caused no prejudice to the 1st applicant.

18.Point 7 under Count 1 raised by the 1st applicant relates to the evidence of two doctors on the existence or otherwise of a bead implanted in the penis of the culprit who committed the robbery in Count 1. The evidence also involved the question whether the removal of the bead from the penis would leave any noticeable mark on the penis. The judge dealt with the evidence in some detail:

"Finally, there is the evidence about the bead. Madam Lam says that the robber who had sexual intercourse with her before robbing her on 20 September last year had a bead embedded in his sexual organ. Defence counsel pointed to her police statement, suggesting that she had told the police officer who took the statement of three beads. You remember that cross-examination. Madam Lam says that she had told the statement-taker of one bead, and the statement-taker, Constable Sin, that is PC1252, supported her in this. He says that the character which defence counsel suggest was 'three' in English was in fact the character '3' in Chinese. You will remember the whole of that cross-examination and take it into account, as you see fit, in considering this piece of evidence.

Then there is the medical evidence Dr Cho Kok-liang who gave evidence saying that when he examined the 1st accused at Lai Chi Kok Reception Centre on 8 January this year. Dr Cho said that upon such examination, he found a foreign body, what he says is called a bead, in the 1st accused's penis. Members of the jury, the 1st accused denies that he ever had a bead in his penis, and he denies that Dr Cho ever examined his private parts. Continuing with Dr Cho's evidence, Dr Cho said that the implanting of such a bead would normally be done by an operation, but that its removal could be done by an ordinary person, and did not require a doctor.

At one stage in Dr Cho's examination by defence counsel, Dr Cho used the expression 'not sure'. In re-examination, Dr Cho seems to have said that what he is not sure about is whether there is a bead in the 1st accused's penis now. Asked in re-examination whether there was a bead in the 1st accused's penis on 8 January this year, Dr Cho replied that there was. Further cross-examination followed. Defence counsel put it to Dr Cho that he had to rely on his notes. Dr Cho agreed. Defence counsel put it to Dr Cho that there was no bead in the 1st accused's penis on 8 January this year. Dr Cho disagreed. In his speech, defence counsel spoke about Dr Cho having to rely on what other people wrote. But on this part of his evidence, what Dr Cho said was that he was relying on his own notes.

The 1st accused called Dr Kwong Ngar-ming. Dr Kwong said that on 29 January this year, the 1st accused refused to be medically examined by him. The 1st accused gave evidence to the effect that the medical examination which he refused was an intrusive one which he found objectionable and therefore refused. Dr Kwong also said that he eventually examined the 1st accused on 23 September this year. The 1st accused told you that that was at his own request. Dr Kwong said that on 23 September this year, no external injury was seen, and there was no foreign body or swelling on the 1st accused's penis.

In cross-examination, Dr Kwong said that a bead implanted in a person's penis can be removed by the person himself. When Dr Kwong was being cross-examined, I asked him this question: 'If a bead had been implanted in the man's penis, so that the bead was there on 20 September last year, could the bead have been removed thereafter so as to leave no trace of it having been there which could be detected upon examination which you conducted on 23 September this year?' Dr Kwong answered to the effect that if the 1st accused had had a bead in his penis but then removed it himself following his refusal of a medical examination on 29 January this year, the probability is that no scar would be visible to the naked eye. Mr Murray [prosecution counsel] then asked Dr Kwong how long the healing would take. Dr Kwong answered that it would depend on the age and health of the skin, and that complete healing would normally take roughly two weeks. There was no re-examination of Dr Kwong by defence counsel." (Tr. pp 17F-19D)

19.The 1st applicant complains that the full recovery without leaving a mark in about two weeks mentioned by Dr Kwong is a mere presumption or a conjecture and it was unfair of the judge to mention this evidence to the jury. The opinion evidence of a doctor, as an expert on medical matters, is always adduced as expert evidence. Dr Kwong was a medical expert called by the 1st applicant himself and there is no reason to relegate the doctor's opinion as to the time of healing and the leaving of no traceable mark on the body as merely a presumption or a conjecture, as the 1st applicant would like us to hold for his benefit in this appeal. This point 7 also has no substance whatever.

Counts 2 and 3

20.The 1st applicant only raises one point against his conviction of Counts 2 and 3, robbery and attempted rape. His complaint is that while the judge warned the jury that they had to consider each of the counts separately, she was self-contradictory to tell the jury that if they found the 1st applicant guilty of Count 6, they should find him guilty of Counts 2 and 3 as well. The judge did not contradict herself as alleged or at all. Counts 2 and 3 relate to events that took place on 10 November 2001, while Count 6 relates to a robbery on 4 January 2002. The victim was, however, the same person, Madam Pong. What the judge said was this:

"As to the prosecution's evidence that the 1st accused was the man who robbed Madam Pong and attempted to rape her on this occasion, being the occasion of Counts 2 and 3, this evidence has to be seen in the context of the evidence relating to the robbery charged under Count 6 against both accused." (Tr. pp 25T-26A)

21.We do not see anything wrong with this direction of the judge. The two applicants were arrested by the police on 4 January 2002 in the lobby of the building in an upper floor of which the robbery in Count 6 had taken place. Madam Pong's evidence is that she recognised the robbers that had been at her flat earlier on that day and also recognised the 1st applicant as the robber who committed robbery and attempted rape on her on 10 November 2001. It was therefore proper for the judge to have directed the jury to look at Madam Pong's evidence regarding Counts 2 and 3 in the context of her evidence relating to Count 6. The judge had said nothing that amounts to a contradiction, as alleged or at all. This point fails.

Counts 4 and 5

22.On Counts 4 and 5, the 1st applicant raises five points.

23.In point 1 under this head, the 1st applicant mentions the discrepancy between the evidence of Madam Chan and the evidence of the exhibit officer as to the circumstances in which a condom alleged to have been used by the 1st applicant, was recovered. Madam Chan said that there were eight used condoms inside the litterbin, whereas the exhibit officer only seized five condoms from the litterbin. The 1st applicant's complaint is that the judge did not mention this discrepancy for the jury's consideration.

24.Indeed, the judge did not mention this piece of evidence at all in her summing-up. It is trite that a judge does not need to mention all items of evidence to the jury in a summing-up. Otherwise the burden on the judge would be too onerous. But it does not mean that the jury is not entitled to consider any or all evidence that had been adduced before them. In the present case, the judge did ask the jury to have regard to all the evidence before them. She said:

"... if I omit to mention evidence which you think is important, you must take it into account even though I have omitted to mention it." (Tr. p 1S)

25.This item of evidence was adduced by the prosecution, which if accepted by the jury, would be incriminating to the 1st applicant because it would tend to prove his presence in the flat of Madam Chan when Counts 4 and 5 were committed there. The failure to mention this item of evidence would not be prejudicial to the 1st applicant, whose case was that he was not the culprit; his case was not that he was framed by the police and the victim. This point does not assist him.

26.Point 2 on Counts 4 and 5 taken by the 1st applicant relates to the DNA matching of the saliva found on the bite mark on Madam Chan's back (her left shoulder), which she said was made by the culprit when raping her, against the DNA of the 1st applicant. The complaint is that the judge did not mention to the jury that Dr Lam Wai Man's testimony, "when gathering saliva sample of the bite mark on the back of the victim, if there were more than one person's saliva within the bite mark, all of them would be gathered".

27.Indeed, the judge did not mention this testimony of Dr Lam. This testimony is, in our view, mere commonsense. On the other hand, the judge did remind the jury of the 1st applicant's defence:

"The 1st accused said that he had patronised a prostitute around Christmas last year, and that he did not exclude the possibility that he had patronised Madam Chan on 1 February this year." (Tr. p 23J)

28.In view of the evidence of the forensic pathologist, Dr Lai, that the DNA of the saliva recovered from the bite mark matched the 1st applicant's DNA, we do not think the reliability or truthfulness of the DNA matching could have been weakened by this commonsense remark. The evidence of Dr Lai was that the DNA of the saliva and the DNA of the sample swapped from the 1st applicant matched by 12 systems. He also said that the random match probability in the local Chinese population would only be 1 out of 84 trillion. Point 2 has no substance.

29.Point 3 complains that the judge did not mention to the jury that Madam Chan, the victim of Counts 4 and 5, did not make an identification of the 1st applicant in the formal identification parade on 10 January 2002. This point has been dealt with before in paragraphs 9 and 10 above, and has no merit.

30.Point 4 on Counts 4 and 5 relates to an ATM card. The complaint is that the judge did not mention this item of evidence to the jury in her summing-up, especially when the quality of the evidence as to where the card had been recovered was not too definite. This is not so. On this card, which according to the prosecution's evidence was found in a green jacket inside the 1st applicant's home, the judge said very fairly:

"But you must also bear in mind that the 1st accused was not the only person living there. He said in the witness-box that that green jacket in which the police says that that card was found was not his but belonged to another brother of his, not the 2nd accused. He said that he had never been in possession of that card. He does not accept that the police found it where they say that they found it." (Tr. p 21P-S)

Count 6

31.The 1st applicant raises five points on Count 6. The first point relates to the discrepancies between the evidence of Madam Pong and that of the police witnesses as to the position of Madam Pong when she identified the 1st applicant and the 2nd applicant at the lobby of the building in which Madam Pong's flat was situated.

32.The judge dealt with the evidence of the event that took place on 4 January 2002 as follows:

"I turn now to the evidence on the question of whether the two accused were those two robbers. The prosecution's evidence that the 1st accused was one of the men who robbed Madam Pong, it being the prosecution's case that he was the man who entered the flat later, may be summarised as follows. There is Madam Pong's evidence that when she went downstairs after the robbers had left, and she had put on some clothes, she saw the two robbers in custody. There is no dispute that the two men arrested on that occasion are the two men in the dock. So this evidence is evidence against both accused. It is evidence of identification and therefore you will approach it bearing in mind the warnings which I have earlier given you in regard to identification evidence. You will also bear in mind the discrepancies in the evidence on this occasion making up your own mind on whether such discrepancies are significant." (Tr. p 27J-R)

33.The judge had also said:

"She [Madam Pong] then put on some clothes, left the flat, and went downstairs to the lift lobby. Then she saw the two men who had been up at her flat. She told the police officer that these were the two men who had just robbed her. She saw in the possession of the police her mobile phone which the robbers had taken. She identified the telephone to the police to be hers." (Tr. pp 26T-27C)

34.The judge is not obliged to repeat what defence counsel had said regarding any discrepancy between Madam Pong's evidence and that of the police officers, especially in view of the fact that she had right from the beginning directed the jury adequately as to how they should approach discrepancies found in the evidence of witnesses in assessing their reliability. She said:

"You have had the advantage of seeing and hearing all the witnesses. Assess their reliability in the light of what they said and the way they said it. Do that in context, using you common-sense and your experience of life. Whenever there is any discrepancy between what a witness says at one stage and what that witness says at another stage, you should take such discrepancy into account when you consider that witness's reliability. Also, where there is any discrepancy between what different witnesses on the same side say about the same matter, you should take such discrepancy into account when considering those witnesses' reliability. What counsel have said to you about discrepancies will be fresh in your mind, so I need not repeat what counsel said. Bear it carefully in mind and give it such weight as you think fit." (Tr. p 4P- 5C)

35.Point 2 on Count 6 raises the point that one of the officers in the lobby, i.e., PC33535, admitted that he had collaborated with PCs58060, 51489, 54777 and 56284 as to the facts and time of the case. Point 3 states that there was a problem in the relationship between Madam Pong and PC54777. The 1st applicant complaint is that the judge did not mention all these things in her summing-up. It is true that the summing-up was silent on these two matters, but as shown in the passage cited in the preceding paragraph, the judge had asked the jury to take into account discrepancies in the prosecution's evidence mentioned by defence counsel. Moreover, there may not be anything sinister where police officers check with each other regarding events and timing to ensure accuracy of entries in their records. It is pertinent to note that in R v Bass [1953] 37 Cr App R 51, at p 59, the English Court of Criminal Appeal said:

"This court has observed that police officers nearly always deny that they have collaborated in the making of notes and we cannot help wondering why they are the only class of society who do not collaborate in such a matter. It seems to us that nothing could be more natural or proper when two persons have been present at an interview with a third person than that they should afterwards make sure that they have a correct version of what was said."

36.As we said before, it is unnecessary for a judge to mention all items of evidence and all discrepancies to the jury, for otherwise, his task would be too onerous. He only needs to ensure that the defence case is fairly put to the jury. In the present case, at various parts of her summing-up the judge had made it abundantly clear to the jury that the defence of the 1st and 2nd applicants was that they were not a party to the crimes with which they were charged.

37.These three points on Count 6 have no merit whatever.

38.Point 4 under Count 6 is that in her summing-up to the jury the judge criticised part of the defence counsel's submission but did not criticise any part of the prosecution's submission.

39.The only place where the judge can be said to have criticised defence counsel's submission is in relation to Dr Cho's evidence. The relevant part of the summing-up is as follows:

"At one stage in Dr Cho's examination by defence counsel, Dr Cho used the expression 'not sure'. In re-examination, Dr Cho seems to have said that what he is not sure about is whether there is a bead in the 1st accused's penis now. Asked in re-examination whether there was a bead in the 1st accused's penis on 8 January this year, Dr Cho replied that there was. Further cross-examination followed. Defence counsel put it to Dr Cho that he had to rely on his notes. Dr Cho agreed. Defence counsel put it to Dr Cho that there was no bead in the 1st accused's penis on 8 January this year. Dr Cho disagreed. In his speech, defence counsel spoke about Dr Cho having to rely on what other people wrote. But on this part of his evidence, what Dr Cho said was that he was relying on his own notes." (Tr. p 18A-H)

40.The judge was merely pointing out that the defence counsel made a mistake in his speech about the evidence. It was perfectly correct and proper for the judge to have done that. There was no criticism as such, as alleged by the 1st applicant now. This point has no substance whatsoever.

41.Point 5 under Count 6 states:

"When directing the jury, the trial judge mentioned over and over again that if the prosecution evidence was adduced 'properly', I should be found guilty. But how on earth was 'properly'? What is meant by 'properly' in legal definition? The jury did not know it, neither did the trial judge explain it. This direction was made irresponsibly and unsafe."

42.The judge had used the expression when summing-up to the jury that "you are entitled if you see fit, to feel sure ..." on a few occasions. One of the said occasions is in the last passage cited in paragraph 12 above. Two other occasions are as follows:

"Members of the jury, it is open to you on the whole of the evidence before you to feel sure, if you see fit, that the 1st accused was the first man of whom Madam Lam spoke, and that he robbed her as charged under Count 1. If so, then you are entitled to convict him on Count 1." (Tr. p 19D-G)

"Members of the jury, it is open to you, on the whole of the evidence before you, to feel sure, if you see fit, that the 1st accused was one of the men who robbed Madam Chan. If so, you may convict him on Count 4. It is also open to you, on the whole of the evidence before you, to feel sure that the 1st accused was the man who raped Madam Chan. If so, you may convict him on Count 5." (Tr. p 24N-R)

43.In each of the passages cited above, the judge merely told the jury that if they saw fit, namely, consider it proper, to feel sure about the evidence implicating the accused person, they could convict accordingly. There is nothing wrong in the passages complained of, and there is no substance in this point raised by the 1st applicant.

Other grounds

44.In the conclusion in the written grounds of appeal raised by the 1st applicant, he complains that the judge did not explain to the jury about the standard of proof and the meaning of "beyond reasonable doubt". There is nothing farther from the truth. The judge said:

"Turning to the standard of proof, it comes to this. Before you can convict, you must be satisfied so that you feel sure of the accused's guilt. In other words, you must be satisfied beyond reasonable doubt of the accused's guilt before you can convict. In respect of any count, if you are not so satisfied, then you must acquit. But if you are so satisfied, then you are entitled to convict." (Tr. p. 3Q-U)

45.This point has no substance.

46.In his letter dated 13 March 2003 to the court, the 1st applicant also raises four matters relating to the judge and his own counsel in the conduct of the trial on his behalf. The first matter is that a Police Constable Fung Sze Hop was permitted to stay in court throughout the trial, to assist the prosecutor to call all the prosecution witnesses. The 1st applicant says that that was unfair to him.

47.In the affirmation of Mr Chan Siu-ming affirmed on 3 April 2003, counsel acting for both of the applicants at the trial, Mr Chan gives an account of what happened:

"6. As in item 1A, Mr Choi [the 1st applicant] alleged that I failed my duty by not following his opinion to object to a witness, Mr Fung Sze Hop to leave the court but allowed him to stay throughout. As far as I can remember, the prosecution relied on the evidence of positive identification of Mr Choi by the victim, the forensic identification of Mr Choi's semen in condoms found in the victim's premises and the stolen properties allegedly found on Mr Choi's rucksack to implicate the guilt of Mr Choi. Mr Fung Sze Hop was a police officer who took a subsequent video-taped interview of Mr Choi. He was not involved in the arrest of Mr Choi. His evidence which was detrimental to the defendant was limited to his conduct of the video-taped interview of the defendant. The defence challenged the video-taped interview to be admitted as evidence. The prosecution decided not to produce the video-taped interview of Mr Choi after the voir dire. Therefore Mr Fung's evidence was not crucial to the prosecution nor damaging to the defence case. The prosecuting counsel at one stage decided not to call Mr Fung and asked the defence after the voir dire if Mr Fung could remain in the court to assist on the procedural matters for the prosecution. I saw no harm of Mr Fung's remaining in the court and I told Mr Choi that time. Mr Choi's initial worry was that if Mr Fung remained in the court he would reveal the evidence of the testified officers in court to other officers. I explained to him that if police chose to do that, police officer other than Fung could also pass such information. Mr Choi agreed and did not raise further objection to Mr Fung's remaining in the court. During the trial proper Mr Fung occasionally remained in the Court to assist the procedural matters. There was no issue of making any objection to Mr Fung's leaving the court."

48.It is therefore clear that counsel had consulted with the applicant about Mr Fung's remaining in court to assist the prosecution in procedural matters. As a result, with the agreement of the 1st applicant, counsel did not raise any objection to Mr Fung remaining in court. Since counsel did not raise any objection, there was no occasion for the judge to consider the matter. There was no issue before the judge as to the propriety or otherwise of Mr Fung's staying in court. This complaint has no substance.

49.The second matter raised in this letter is that the judge had asked Dr Kwong some questions which were totally speculative and unfair to the 1st applicant. This point has been dealt with in paragraphs 18 and 19 above.

50.The third matter raised in the letter is about a telephone SIM card, which the 1st applicant alleges was wrongly shown to Madam Pong when she was giving evidence. It was wrongly shown because it was admitted by the exhibit officer that he had never seized the SIM card. The complaint against the judge is that she did not make any enquiry about this matter in order to fairly protect the 1st applicant's interests. The complaint against counsel was that he did not make any enquiries about this matter upon the applicant's instructions.

51.Counsel's response is contained in paragraphs 7 and 8 of his Affirmation which read:

"7. As to item 1C, Mr Choi's allegation was that the prosecutor made a mistake to show a sim card to the witnesses. As far as I can remember, there were a number of exhibits seized in the case. Several mobile phones were also involved. The prosecutor made a mistake in showing the exhibit to a witness did not weaken the prosecution's case nor advance the defence case. As far as I can remember, Mr Choi did not give me any specific instruction for me to cross-examine on that mistake, although he himself might have some comments on that. However, the issue of not following his instructions did not arise.

8. Throughout the trial, Mr Choi did not make any protest that his instructions were not complied with. He was content at that time with the performance of his counsel and solicitor. On 8th October 2002, Mr Choi and the other accused Mr Choi Yau Ming signed a document confirming that the counsel and solicitor representing them had defended their case in accordance with their instructions. There is now produced and shown to me a copy of the document signed by Mr Choi Kuk Shek and Mr Choi Yau Ming and Marked 'SMC-1'. In the premises, the issue of not following the instructions of Mr Choi does not exist."

52.The exhibit SMC-1 is a Chinese document dated 8 October 2002 and signed apparently by both the 1st and the 2nd applicants, and it states as follows:

"We, Choi Kuk-shek and Choi Yau-ming, hereby confirm that the solicitor and counsel have acted fully in accordance with our instructions to defend us."

53.As his counsel has pointed out in his Affirmation, the mistake made by the prosecution on the SIM card did not weaken the prosecution's case nor advance the defence case, especially in view of the strong evidence in this case against the 1st and 2nd applicants. We will refer to this strong evidence later.

54.The last point raised in the letter repeats his complaint about the judge's dealing with the amount of monies stolen from Madam Lam. That has been dealt with before in paragraphs 16 and 17 above.

55.When appearing before us, the 1st applicant raised two additional complaints:

(1) the judge was prejudiced against him by repeating the prosecution's evidence and case against him in the summing-up which might well have misled the jury into a wrong verdict; and

(2) the judge did not point out to the jury that as the three victims were offering sex services to people, their flats were just like a public place, and therefore the jury should have taken this into account when considering the DNA evidence of the semen found in the condoms.

56.One of the purposes of a summing-up is to summarise the evidence to the jury, including both the evidence of the prosecution and of the defence and draw attention of the jury to the important aspects of such evidence. In the whole of her summing-up, the judge has fairly dealt with the evidence and has fairly put the defence raised by the accused to the jury. Complaint (1) has no substance at all.

57.The fact that the three victims were prostitutes each operating alone in their own flat was made abundantly clear by the judge to the jury. This fact does not in any way reduce the strength of the evidence of the DNA matching between the semen found in the condoms and the 1st applicant's DNA. Complaint (2) is as nonsensical as the complaint raised in respect of the DNA matching of the saliva found in the bite mark.

The second applicant's grounds

58.The 2nd applicant raises only a few grounds of appeal in his notice of application. He complains that the judge unfairly criticised and rejected some important elements in the submissions of defence counsel, while not criticising prosecuting counsel's submissions. We have dealt with the judge's comments on defence counsel's submissions in paragraphs 38, 39 and 40 above.

59.He also complains that the judge had failed to direct the jury that he was entitled to the benefit of the doubt, especially in view of a number of fundamental doubts concerning the charge, Count 6, against him. Before us, he identified such alleged "fundamental doubts" to be the discrepancies between Madam Pong's evidence and the police officers' evidence relating to where she was in the lobby of the building at which the applicants were arrested and where her mobile phone was seen by her when she arrived at the lobby. What we say in paragraphs 31 to 34 above applies. There is no substance in any of the grounds raised by the 2nd applicant.

The strength of the prosecution evidence

60.Now we turn to examine the strength of the prosecution's evidence against both applicants.

61.Regarding Count 6, a robbery committed on 4 January 2002, the circumstances as to the involvement of the two robbers were testified to by Madam Pong, who had in the course of the robbery signalled to a friend over the telephone that something wrong was going on in her flat. After she had made an understanding with two robbers that the whole thing would be forgotten, the robbers returned the money taken from her and left the flat. She then telephoned to report the matter to the police. After putting on some clothes, she went downstairs to the lobby, where she found that the two applicants had been arrested by the police. She identified them and she also identified the mobile telephone that had been taken by the two robbers from her being in the possession of the police, who had recovered it from the two robbers. This is very strong evidence against both applicants.

62.Madam Pong told the court about what had happened to her regarding the robbery and the attempted rape committed by the culprit, whom she recognised on 4 January 2002 to be the 1st applicant, in respect of Counts 2 and 3 that took place on 10 November 2001. The jury must have been sure about this evidence when they convicted the 1st applicant of Counts 2 and 3.

63.Regarding Counts 4 and 5, apart from Madam Chan's oral testimony, there were various items of evidence before the Court to link the 1st applicant to these robbery and rape charges. They consisted of the adhesive tapes produced in court, the bite mark with saliva DNA matching the 1st applicant's DNA and the address paper found on the 1st applicant.

64.We have already referred to the evidence of the bite mark. Regarding the adhesive tapes, the judge summed up the evidence as follows:

"Then there is the prosecution's evidence relating to the adhesive tapes (Exhibits P15 and P16) seized by DSPC To, that is DSPC19120, in Madam Chan's flat after the incident on 1 January this year, and the roll of adhesive tape (Exhibit P43) found by Constable Leung, that is PC46284, in the rucksack which the 1st accused was carrying when he was arrested. In the witness-box, the 1st accused denied that any adhesive tape was found in his rucksack. His evidence is to the effect that that roll of adhesive tape, that is Exhibit P43, was found by the police on the floor in the lobby where the police arrested him. He denied having anything to do with that roll of adhesive tape. Members of the jury, the evidence about adhesive tapes becomes significant if you feel sure that that roll of adhesive tape was indeed found in the 1st accused's rucksack.

Madam Chan identified the adhesive tapes (Exhibit P15 and P16) seized in her flat as the tapes which have been used to blindfold and gag her. You will remember the chain of evidence which the prosecution led for the purpose of establishing that these adhesives tapes, Exhibit P15 and P16, seized in Madam Chan's flat and this roll of adhesive tape (Exhibit P43) which the police say was found in the 1st accused's rucksack were delivered to the forensic scientist, Dr Wong Koon-hung. Dr Wong gave scientific evidence to the following effect. Exhibit P15 was in a clump which unravelled into six segments. Exhibit P16 consists of a single segment. Exhibits P15, P16 and P43 agree in appearance, overall dimension, the chemical composition of the adhesive material, mesh size and the chemical composition of the backing material.

The six segments which together are Exhibit P15, the one segment which is Exhibit P16, and the roll of adhesive tape which is Exhibit P43 join to form one continuous strip with just one open end, being at Exhibit P16. In his opinion, the segments forming Exhibits P15 and P16 had originated from the roll of adhesive tape which is Exhibit P43.

Members of the jury, you will remember defence counsel's cross-examination of Dr Wong and take all of it into account. Dr Wong agreed with defence counsel that this sort of tape is mass produced and widely available. Members of the jury, it is not part of the prosecution's case that this sort of tape is rare. The prosecution's reliance on these tapes is for the purpose of showing that tapes used to blindfold and gap Madam Chan on 1 January this year were found to have come from a roll inside a rucksack which the 1st accused was carrying at the time of his arrest on 4 January this year. You will remember defence counsel's cross-examination as to whether all the segments or the roll formed one continuous strip. And you will remember Dr Wong's evidence in cross-examination reiterating that they did form a continuous strip." (Tr. pp21T-23G)

65.Regarding the address paper, the judge said:

"Finally there is the evidence that Constable Leung, that is PC46284, found a piece of paper in the pocket of the pair of jeans which the 1st accused was wearing at the time of his arrest, and that this piece of paper (Exhibit P88) contained 21 addresses including Madam Chan and Madam Pong's addresses. The 1st accused denied that this piece of paper was found on him. He says that the police found it on the floor of the lobby where he was arrested. He denies having anything to do with that piece of paper." (Tr. p 24I-M)

66.These items are very strong evidence linking the 1st applicant to Counts 4 and 5.

67.Regarding Count 1, apart from the testimony of Madam Lam, there was the evidence of the condom containing the semen the DNA of which matched the DNA of the 1st applicant, the evidence about the Cartier watch stolen from Madam Lam, the jewellery items worn by the 1st applicant that were identified by Madam Lam and also the evidence of the bead in the penis of the 1st applicant. We have referred to the details of all these before.

Conclusion on conviction

68.This is a case where the evidence adduced by the prosecution is very strong implicating the 1st and 2nd applicants on the offences with which they were charged, which can aptly be described as proving their guilt beyond a reasonable doubt. We have examined all the grounds of appeal raised by both applicants very carefully and found them to have no substance whatsoever. Their convictions are neither unsafe nor unsatisfactory. The applications against conviction must be dismissed.

Application against sentence

69.The 1st applicant says that the sentence on each count imposed on him was excessive, in comparison with similar cases, and that the order of the judge in making part of the sentences consecutive was also wrong because the total sentence was excessive.

70.On the other hand, the 2nd applicant, who is the brother of the 1st applicant, raises the age and health of their father and the undesirability of leaving him alone as the basis to seek mercy from this Court to reduce sentence.

71.According to the guidelines laid down by Mo Kwong-sang v R [1981] HKLR 610, an armed robbery should attract a sentence of five years' imprisonment, and aggravating factors should be taken into account to adjust the sentence upwards. In the present case, the robberies were committed on prostitutes operating one-woman brothels who were alone in their respective flats. The 1st applicant or his accomplice posed as customer so as to entice the victim to open the door. After entry was gained into the flat, when the woman victim was all alone, either the robber would obtain her sexual service before committing the robbery, or the robber would perpetrate the robbery straight away, and had sex or attempted to have sex with her against her will in the course of the robbery. In most cases, a knife or a paper cutter was produced to threaten and subdue the woman. The woman was always bound, gagged and blindfolded. All these were aggravating factors which the judge was fully entitled to take into account in imposing the sentences.

72.In our view, none of the sentence imposed by the judge was manifestly excessive, either on each single count or in totality. There is nothing wrong in principle in the way the judge dealt with each of the applicants.

73.While we sympathise with the father of both of the applicants, being 78 years of age and suffering from various illnesses, we do not feel that our sympathy with his condition and predicament justifies our reducing the sentence for either of the applicants, which they well deserve.

Conclusion on sentence

74.In the result, the applications for leave to appeal against sentence are also dismissed.

Representation:

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Applicants in person