Lai Kin-man and Others v. The Queen
Read the full judgment text of CACC 545/1970 on BabelCite. This Court of Appeal judgment was delivered on 28 December 1970.
1. This was a case where two young attendants in a petrol station were attacked in the middle of the night when asleep, threatened, overpowered and trussed up with wire, after which a safe was stolen. That was the basis of Count 1 in respect of which each appellant was sentenced to 3 years' imprisonment.
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CACC000545/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 545 OF 1970 -----------------
----------------- Coram: Mills-Owens, Huggins and McMullin, JJ. Date of Judgment: 28 December 1970 ----------------- JUDGMENT ----------------- Huggins, J.: 1. This was a case where two young attendants in a petrol station were attacked in the middle of the night when asleep, threatened, overpowered and trussed up with wire, after which a safe was stolen. That was the basis of Count 1 in respect of which each appellant was sentenced to 3 years' imprisonment. 2. Counsel has made the point that they were all given the same sentence notwithstanding the facts that the first appellant pleaded guilty and that the third appellant surrendered to the police and pleaded guilty. He asked us to say that this was wrong and that in any event three years' imprisonment was manifestly excessive for the second appellant, because there was no cogent evidence that offensive weapons were used, the only evidence being that oral threats involving reference to a gun and to stabbing were made. The appellants are aged 26, 22 and 24 years respectively and have clear records. In spite of their comparative youth and of their being first offenders we think a sentence of 3 years was a minimal sentence for the offence. It follows that any differentiation which ought to have been made should have appeared in the imposition of a greater sentence on the second appellant and the fact that the learned judge did not differentiate redounds to the advantage of the second appellant but does not bind us to take the view that the minimal sentence should not have been imposed on the other two appellants. For these reasons the applications of all the appellants for leave to appeal against the sentences on Count 1 are dismissed. 3. In respect of the sentences passed upon the second appellant in respect of Counts 2 and 3 we are of the opinion that it is undesirable that any sentence of corporal punishment should be imposed until a judge or magistrate has obtained a medical certificate of the convicted person's fitness to receive corporal punishment. We therefore think it would be wrong for us to dispose of this appeal until such a certificate has been made available to us and accordingly we adjourn this part of the appeal to a date to be fixed so that such a certificate may be obtained. Representation: A. Zimmern for Appellant. Evans for Respondent. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 545 OF 1970 -----------------
----------------- Coram: Mills-Owens, Huggins & McMullin, JJ. Date of Judgment: 28 December 1970 ----------------- JUDGMENT ----------------- Huggins J.: 4. On the 27th April, 1970 a petrol filling station in Kowloon was raided and a safe stolen. The police were called and shortly afterwards a detective constable was in the vicinity when he heard a banging noise. Upon investigation he found two men trying to open the safe. According to him they rushed at him and he fired his revolver at one of them. Thereupon they ran away but one had been wounded. He next saw them lying on the ground some distance apart in an excavation by the side of a new road. He handcuffed them together and told them to climb back out of the excavation. As they did so the uninjured man appeared to slip back. He knocked over the constable and at the same moment a third person started attacking the constable from behind. The handcuffed men also hit him and he received substantial injuries. Eventually all three persons escaped with the safe after taking the key of the handcuffs from the constable's pocket and stealing his revolver and ammunition. On the appeal it was accepted that the handcuffed men were the first and secor appellants, the first appellant being the one shot and wounded by the constable. 5. The three appellants were jointly indicted for robbery and theft of the safe, for robbery and theft of the revolver and ammunition and for wounding the constable with intent to do him grievous bodily harm. The third appellant pleaded guilty to the first count and a nolle prosequi was entered in his favour in respect of the other counts. The first appellant pleaded guilty to the first count. Upon their trial the first appellant was found guilty on Counts 2 and 3 and the second appellant was found guilty on Counts 1, 2 and 3. The first and second appellants appeal against conviction and all the appellants appeal against sentence. 6. The first point argued upon the appeals against conviction - and the only point raised on behalf of the second appellant - was that the learned judge misdirected the jury as to the meaning of reasonable doubt. We have already given our reasons for holding that there was no substance in that contention. 7. On behalf of the first appellant it is further submitted that his defence to the second and third counts was insufficiently put to the jury. This appellant did not give evidence but it appeared from the cross-examination, and from the address of counsel, that the defence was that although present he played no part in the robbery or wounding of the constable. There were two limbs to the defence. It was said first that the constable's evidence of the alleged robbery of his revolver and ammunition was wholly beyond belief and secondly that, even if it were capable of belief generally, it could not be true as against the first appellant because the first appellant had been shot and wounded so seriously that he was physically incapable of doing what was alleged. We confess to some surprise that the medical evidence was left as it stood at the end of the testimony of Dr. Lo Yin-fat. He had examined this appellant some twenty hours after the alleged offences and found a foreign body (generally accepted to have been a bullet fired by the constable) which had passed through the right buttock and lodged in the posterior wall of the hip socket. At the time of the examination "the hip was stiff and he was unable to move at all"; he would not have been able to walk. The doctor agreed that "the slightest movement on his part will worsen the pain" and the doctor was then clearly talking of the time of the injury. Finally, in re-examination he was asked whether the limitation of movement of the hip would have been immediate or would have arisen later and he replied "immediate". The only other material part of his evidence was that the injury would not have affected the movement of the upper trunk. 8. The details of that evidence were not referred to by the learned judge in his summing-up. Indeed the only express reference to the medical evidence was made when the judge was contrasting the story of the constable that the two appellants made a frontal attack upon him in the course of which he fired at one of them with the doctor's evidence that the bullet must have entered the first appellant's body from the back. However, the material question is not whether the judge sufficiently summed up the medical evidence but whether he sufficiently put the defence: it might or might not in a particular case be possible to put the defence adequately without an express reference to the medical evidence. The only passage which counsel for the Crown can point to as purporting to put the defence of incapability reads as follows:
In the first place the judge alludes to the contention that the constable's evidence of the attack was wholly false and that the shot must have been fired while the first appellant was running away from him and he appears to combine with that a reference to the first appellant's incapacity to move after he had been shot. The constable admitted that he could not be explicit that the first appellant actually laid a finger on him but the suggestion was that he had joined in a "rush" at the constable and that was reasonably to be inferred that he at least was present aiding and abeiting This inference could not be drawn if the appellant was so incapacitated that could not rush at the constable, although it should be added that on the medical evidence he might have been able to bring the upper part of his body into the attack if the constable was close enough. 9. It is argued that the judge's reference to the sergeant's evidence would bring to the mind of the jury the contention that the first appellant was not so incapacitated that he could not join in any attack or robbery. Counsel for the appellants submits that it was insufficient for that purpose and that, even if it was sufficient, that made it all the more incumbent on the judge to balance the reference to the sergeant's evidence with a reference to the doctor's evidence. 10. It must be added that counsel for the appellants took his argument a step further because there was evidence that the first appellant took the police to a spot some 300 yards from the nearest vehicular access and showed them where the safe had been subsequently dumped. If the doctor was right, counsel argued, it was at least unlikely that the first appellant could have known where the safe had been dumped. This point was not mentioned in the summing-up. 11. We agree that it might have been better had the learned judge made a brief reference to the medical evidence since it was the foundation of one limb of the defence, but it has been well said that the perfect summing-up has yet to be delivered. We have to look at the summing-up as a whole and in the light of the case as it had been presented by counsel. The burden of the passage cited is a statement of two conflicting possibilities, that the first appellant was involved in a combined rush upon the constable or, alternatively, that all that he wanted was to run away. The third possibility, that he was unable to do either because he was totally incapacitated, was never mentioned expressly and the only implicit reference to it was incidental to a consideration of the first two alternatives. Although we have hesitated in the matter we have come to the conclusion that it really was not sufficient to dismiss what in truth was a corner-stone of the defence with only a passing reference. Looking at the summing-up as a whole, together with the address of counsel for the appellants, we cannot say that the issue whether the first appellant was physically capable of doing what was alleged against him was clearly left with the jury and accordingly the appeal of the first appellant must be allowed upon the second ground. His convictions upon Counts 2 and 3 are quashed and the sentences thereon set aside. Representation: Zimmern (Lo & Lo) assigned for Appellants. Astin c.c. for Respondent. |