The Queen v. Lee Shun Chung and Others

IN THE COURT OF APPEAL

1986 No. 359
(Criminal)

BTWEEN

THE QUEEN

and

LEE Shun-chung

LAM Kwai-ping

LAM Shek-hung

HO Kwok-shing

LAM Pah-hung

Coram: Kempster, J.A., Penlington, J. & Barnes, J.

Date of Hearing: 14th January 1987

Date of Judgment: 14th January 1987

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J U D G M E N T

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Kempster, J.A.:

1. On 1st July of last year Lee Shun-chung and Lam Kwai-ping were convicted on the verdict of a jury of a number of serious crimes and duly sentenced by Wong J. Lee Shun-chung was convicted on one count of robbery and one count of rape. Lam Kwai-ping was convicted on one count of robbery, one count of rape and one count of attempted robbery. Against those convictions each seeks the leave of this court to appeal.

2. Lee Shun-chung was convicted of the two relevant offences on the basis of identification evidence. Both were alleged to have taken place at about the same time and on or about the same premises on 22nd August 1985. Wong J. reminded the jury of the material evidence in his summing-up.

3. On the day in question a number of men entered premises at No. 22 Kimberley Street, Kowloon, and there robbed Chan Ming-yiu of $300, a watch and a ball-point pen and robbed Leung Suk-yee of a ‘Rolex' watch, some rings, a necklace and a bracelet. A 17 year old girl, Lui Siu-kam, was raped by three men but she was unable to identify anyone of them.

4. Subsequently this applicant had given to his grandmother in Macau a bangle the property of one of the women robbed. Further, and perhaps more importantly, he was identified by two of tile persons in the premises when the robbery took place. One of them said:

I had seen him before in my flat on the night in question when he was ransacking my home. It was quite some time - as long as several hours. He was ransacking in front of me and I was able to see him without his notice.

We should add that this lady had been tied up, gagged and blindfolded but had been somehow able to shift the towel over her eyes to enable her to see.

5. The other identification witness also described how he been tied up with wire from coat-hangers and his head covered with a bed-sheet. But he too had been able to shift the blindfold and to see the first applicant for several minutes.

6. In our view that was evidence upon which the jury were entitled to act and, subject to further matters which have been urged on his behalf by Mr. Mackenzie-Ross, to find the first applicant guilty of robbery.

7. The application in relation to the charge of rape; is less easily disposed of. Again as the learned judge reminded the jury there was - no direct evidence in a substantial number of counts - who actually raped these women.

8. Now the girl who was the subject matter of the rape charged in the second count was not challenged in her evidence describing what had taken place. The issue at trial in relation to both counts was that of identity. But in the absence of evidence directly connecting the first applicant with the rape the jury were directed that they could consider what lawyers describe as -a joint enterprise whereby someone who assists in the commission of rape by furnishing such encouragement as is to be derived from assenting presence or by some active role as, for example, holding the victim down or keeping a look-out, may equally be guilty. Again to quote from the summing-up:

On the question of assistance and encouragement, you may think that a rapist would be aided or encouraged by the knowledge that he had friends present not objecting to what he was doing, or they were in fact acting as his look-outs.

9. There was evidence enough that the first applicant, together with others, had entered the flat and taken part in the robbery. There was no evidence showing whether or not he was still present in the flat or that part of the flat when or where the rape or rapes took place or as to his attitude to what transpired.

10. The circumstances are gravely suspicious. Both counts may have constituted a single planned enterprise. In similar instances where a course of conduct had been established there was evidence enough to entitle the jury to find all the robbers also guilty of rape. After anxious consideration and only by a majority we take the view that there was an essential lacuna in the prosecution evidence and that the conviction of the first applicant on the charge of rape was unsafe and unsatisfactory.

11. So much for the conviction for rape. There remains the conviction for robbery and in that regard it has been submitted that this applicant was prejudiced by frequent references to him in statements made by other accused which the jury had before them when they retired. It is said that either the counts should have been severed so as to avoid such prejudice by providing for separate trial or that these statements should so have been edited as to eliminate references to the first applicant. It is conceded that no application was made on his behalf at trial either for a severence of the indictment or for editing. He was represented by counsel.

12. We were referred to a passage from the judgment of Lord Goddard CJ in R v Sims[1] dealing with the effect of prejudice in a case involving homosexual behaviour with boys. We have duly taken it into account as did Lord Pearson when giving the leading judgment in Ludlow v Metropolitan Police Commissioner[2]. He said:

I think the experience of judges in modern times is that the verdicts of juries show them to have been careful and conscientious in considering each count separately. Also in most cases it would be oppressive to the accused, as well as expensive and inconvenient for the prosecution, to have two or more trials when one would suffice. At any rate, in my opinion, - charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the judge has a discretionary power to direct separate trials. - The judge has no duty to direct separate trials unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice.

13. Having considered the trial judge's impeccable summing-up which, in our view, provided every safeguard for the first and other applicants we do not think that the conviction of the first applicant for robbery can be vitiated on the footing that, particularly in the absence of application, Wong J. wrongly failed to exercise his discretion to order separate trials. By the same rationale we do not think that the conviction can be vitiated because parts of prejudicial statements, which he directed the jury did not constitute evidence against the first applicant, were put before them.

14. We allow Lee's application for leave to appeal against conviction, treat this is the hearing of the appeal and quash the conviction for rape. The conviction for robbery stands.

15. Lam Kwai-ping, the second applicant, is unrepresented. The circumstances of the charges of robbery and rape and then of attempted robbery again were summarised to the jury by the learned judge. Apparently on 16th October 1984 on the 3rd floor of an address in Lai Chi Kok Road, once more in the early hours of the morning a number of men forced an entry and robbed the occupants. One man raped a girl then aged 16.

16. The second applicant was identified by one of those in the flat. The witness saw him as he awakened him and tried to tied him up. There was sufficient light to make an identification possible. Further, the finger-print of this applicant was found on an orange can which, subsequently, the police found at the scene of the crimes.

17. On 2nd October 1984 the occupant of premises in Laichikok Road awoke to find a man attempting to remove his wrist watch. He was assaulted, chopped and tied up with wire. The second applicant's fingerprint was found on a ceramic tile in the kitchen.

18. As in the case of the first applicant we are satisfied that there was evidence enough to entitle the jury to convict the second applicant of robbery and attempted robbery but, still by a majority, find that there was insufficient evidence to render the conviction for rape safe or satisfactory. There is no evidence which establishes the presence of this applicant at the place in the flat where or at the time when the girl was raped. There is no evidence to demonstrate his attitude to it.

19. We allow Lam Kwai-ping's application for leave to appeal and treat this as the hearing of that appeal. The convictions for robbery and attempted robbery are upheld and the conviction for rape will be quashed.

D. Mackenzie-Ross (Kwan & Kwan) for D1

Paul Dinnan (Kwan & Kwan) for D4

A.W. Sedgwick Q.C. & A. Souyave (Kwan & Kwan) for D5

Lam Kwai-ping (D2) Applicant in person

A. Wilton for Crown

[1]  1946 KB 531

[2]  1970 54 Cr. App. R. 233 at p.245