Tang Ping and Others v. The Queen

CACC000552/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 552 OF 1973

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Coram: Trainor and Cons, J.J.

Date of Judgment: 11th February, 1974.

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JUDGMENT

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Judgment delivered by Trainor, J.

1. On the 24th of October last a robbery took place in a jewellery shop. Subsequently four persons were charged with that robbery. Two of them pleaded guilty and the third pleaded not guilty but was subsequently found guilty by the jury. The fourth was acquitted. Tried with the four involved in the robbery was a 5th accused called Lam Kam Chuen. He was charged with assisting in the realization of portion of the goods stolen. He was also charged with dishonestly assisting in the disposal of another portion of the goods stolen. On that last count, the third, he was found not guilty but was found guilty of assisting the realization of the first portion of the property stolen, the subject of the second count. There is now before this court, an application by the 1st accused for leave to appeal against sentence; by the 3rd accused there is an application for leave to appeal against conviction; and by the 5th accused there is an application for leave to appeal against conviction and sentence.

2. It was decided this morning that we would deal with the application of the 5th accused first. The grounds of his application, substantially, are that the learned judge misdirected the jury in respect of the charge of handling the stolen goods. I said "substantially" that was the ground of appeal, in fact it was the only one. Mr. Yu, who appeared for the applicant, Lam Kam Chuen, in dealing with the summing-up of the learned trial judge conceded that in the early stages of the judge's address to the jury the summing-up was unexceptional. In the opinion of the court in that early stage the summing-up was full and adequate; the learned trial judge correctly directed the jury as to what the onus of proof was and where it lay.

3. Mr. Yu's principal objection to the summing-up was to the effect that having disposed of the case against the 3rd and 4th accused, in which the learned trial judge repeatedly emphasised that the onus of proof lay on the Crown, he proceeded to deal with the 5th accused but omitted to deal again with the same or, indeed, with any particularity as to the onus of proof in his case. Mr. Yu would contend that in the final part of the summing-up dealing with this accused the learned trial judge repeatedly told the jury that they had to make a choice between what was said by the prosecution witnesses and what was said by the appellant when he gave evidence, without reminding them of the possibility that neither might be reliable.

4. It is correct to say that the trial judge did on about six occasions tell the jury that they had the evidence of the prosecution, and the evidence of the defence and that they should decide between them. But on each occasion the Judge was dealing with one partioular and individual item in respect of which the jury were offered only two alternative forms of evidence. It was essential that the jury should decide which they would accept before they could go further and consider the evidence as a whole. In that respect the jury, at the beginning, were very carefully warned that if they entertained any doubt the benefit thereof must be given to the accused. The warning was repeated by the Judge when dealing with the 3rd and 4th accused. We cannot believe that the jury would have thought that the 5th accused should be treated any differently.

5. The court is satisfied that the early direction given by the learned trial judge to the jury was impeccable and that its effect could not have been in any way dissipated by the time he came to deal with the 5th accused, Lam Kam Chuen. For this reason we can find no substance in this application for leave to appeal and the application is refused.

6. So far as the sentence imposed is concerned, the court is of the opinion that any person who assists in the realisation of stolen property cannot expect anything other than a severe sentence. It is the fames and the person who helps to dispose of or realise stolen goods who makes robberies and thefts profitable. The penalty of four years imposed is not, in the court's opinion, too severe and the application is dismissed.

7. The 3rd accused Leung Charn also appealed against this conviction. The grounds of the application for leave to appeal are that his conviction was against the weight of the evidence. He has said that although the evidence against the 4th accused and himself was, to a certain extent the same nevertheless the 4th accused was acquitted and he was convicted. He further made the point, after suggesting that perhaps the jury had been bribed by the 4th accused to acquit him, and stating that he, the applicant, was not in a position to bribe the jury, that the learned trial judge erred in telling the jury that they should in assessing the evidence take into consideration the demeanour and behaviour of the witness in the box. The applicant wants to know if eloquence and good behaviour in the box are grounds for an acquittal, and a less polished behaviour grounds for a conviction. Of course the answer to that is that what the learned trial judge was saying to the jury was that when they came to assess the veracity or the reliability of the witness they would take into consideration how the accused appeared to them when he gave evidence. He was not giving points for eloquence or otherwise. He was merely telling the jury that they were to form their own opinion from seeing and hearing a witness whether that witness was telling the truth. The applicant has referred us to certain discrepancies that there were between the evidence of the owner of the jewellery shop, Mr. Fung, and one of his employees, a Mr. Mak, with regard to the identification. He also made reference to discrepancies with regard to what took place when sergeant Lam Kit went to recover certain fountain pens from the owner of a mahjong school. These were pens which were stolen during the robbery and which the applicant said he received from one, Tang Ping, and subsequently pledged them with the owner of a mahjong school as a security for money advanced to pay his losses in the school.

8. These differences or discrepancies were all matters for the jury to consider. They having considered them, and all the evidence that was before them found the accused guilty as charged. It is not the function of a court of Appeal to reconsider the evidence that was offered below and try to decide where the truth lay; that was a matter for the jury. They had the opportunity of seeing the witnesses hearing what they had to say, and coming to a conclusion on what was before them. This court having considered all the evidence.

9. Cannot say that the jury behaved in any way improperly. The conclusion they reached was one that was clearly available to them on the evidence and this court cannot say it was wrong. The application is dismissed.

10. Tang Ping, the 1st accused applies for leave to appeal against the sentence imposed on him for the robbery to which he pleaded guilty.

11. It was a robbery in which 4 men entered the jeweller's shop armed with large knives. They tied up persons in the shop, forced them to lower their heads and generally, it would appear, terrified them. This was not an offence that was committed on the spur of the moment. It was a carefully planned affair. In fact this appellant had visited the premises on the previous day on the pretext of buying a ring.

12. Those convicted of robbery need not expect any sympathy from courts in Hong Kong. The offence of robbery and the methods with which it is perpetrated in this Colony are notorious and a sentence of eight years imprisonment for this particular offence and for offences like it is not at all too severe. The court sees no reason why it should interfere with the sentence and the application is dismissed.

Representation:

Patrick Yu instructed by W.K. Poon & Co. for 4th appellant.

1st & 3rd appellants in person.

Duffy, c.c. for Respondent.