The Queen v. Low Kim Hung and Others

IN THE COURT OF APPEAL

1986, No. 618
(Criminal)

BETWEEN

THE QUEEN

and

LOW KIM HUNG

KUNG KAM HUNG

LEE SHUN KAM

_________________

Coram: Silke, J.A., Power & Penlington, JJ.

Date of Hearing: 3rd March 1987

Date of Judgment: 3rd March 1987

_________________

J U D G M E N T

_________________

Silke, J.A.

1. Three men were indicted for robbery. The 1st Defendant, Low Kim Hung, was additionally charged with an offence contrary to section 90 of Criminal Procedure Ordinance - assiting offenders. On that count, he pleaded guilty and the robbery count was not proceeded with. He gave evidence for the Crown at the trial of the 2nd and 3rd Defendants, Kung Kam Hung and Lee Shu Kam, before His Honour Judge Leong, sitting as a Deputy High Court Judge, and a jury.

2. The Crown called evidence to show that a robbery had taken place at the Fu 1ao Nightclub in Argyle Street at about 3:40 a.m. in the morning of the 5th of July 1986 when a gang of men armed with knives entered the Club, tied up the occupants and robbed them.

3. There was evidence that a taxi had picked up four men near the Club at about 4:00 o'clock that morning and had taken them to the premises where Low Kim Hung lived. There they got out and went inside the building two at a time. There was carried by them a red travelling bag.

4. The accomplice Low said that he had been approached by an ex-employee of the Club with a view to robbing it - a man called Chan Keung. There was evidence that such a person had been employed previously by the Club. Low refused to take part but he was present when others, and this included the 2nd and 3rd Defendants, planned it. There were two meetings, one of the 4th of July and the other on the 5th of July. Low allowed his premises to be used as a place to which the robbers could return and share their loot. He knew knives would be carried.

5. After the 2nd Defendant had received a telephone call, the group left their meeting place and Low returned to his flat. At about 4;00 a.m., two of the group arrived back in the flat, included was the 2nd Defendant, and a few moments later, two others including the 3rd Defendant arrived. One of the group had with them a red travelling bag and it contained the knives and the property stolen. There was a share-out and Low received a small amount of money, and some cigarettes which had been stolen in .the robbery.

6. Later, Low led the police to a place where the red bag was hidden. The knives were still in it. At trial, somewhat surprisingly, only one of the knives was identified as the sort used in the robbery - surprising in that two of those knives were large bladed, shining knives of the type used in Kung Fu.

7. There was no corroboration of Low's evidence and the jury was so directed as they were properly, and in full, also directed on the dangers inherent in accomplice evidence. Neither the 2nd nor the 3rd Defendants gave evidence nor did they call witnesses. The issue was their attachment to the robbery and the credibility of Low's evidence in connection with this.

8. In cross-examination, Low was asked if he had given a full and true account of all the matters which had taken place. His attention was directed to a statement he gave to police after his arrest and then to something which appeared therein but of which he had not spoken in the course of his evidence at trial. He acknowledged the statement and he identified his signature upon it. He agreed that in the statement he had said that he himself attempted to recruit one “Ah Kei” as a participant. He agreed he had made no reference to this in his evidence, giving as an explanation that he had not been asked about it.

9. There was an application, not very strongly made, by the Crown to have the statement admitted in evidence. That application also concerned a Summary of Facts. This summary had been accepted by Low at the time of his pleading guilty to the count which concerned him in this Indictment. He was cross-examined on matters in it which were said to be inconsistent with his evidence at trial. The trial judge ruled both admissible and they were with the jury when they retired. No point has taken on the admission of the Summary of Facts but the admission of the statement is the first main ground of appeal argued by both Mr. Laskey for the 2nd Defendant and Mr. Hoosen for the 3rd Defendant.

10. It was submitted first that, as there was no inconsistency or denial between the statement and Low's evidence, the trial judge should not have acceded to the Crown's application. Second, that the only purpose of the statement could have had was to confirm the evidence already given by Low and that this was unfair. The admission was a wrong exercise of the trial judge's undoubted discretion. Further, that in directing the jury as to how they should treat the statement and the summary, the trial judge misdirected them.

11. Low was clearly being cross-examined on his omission to mention his part as the recruiter of prospective robbers. This went to credibility on two points: (1) inconsistency in the sense that he had not, in Court, told the whole truth and (2) the apparent attempt to minimize his role. While two of us might well not have admitted the statement, we are not persuaded that, in the overall context of the trial and by allowing the jury to see the disputed portion in relation to the rest of contents of the statement, the trial judge wrongly exercised his discretion or acted upon wrong principles. It was a risk the defence took in approaching the statement in the manner which they did.

12. The direction which the trial judge subsequently gave was:

"You will recall, members of the jury, that during his evidence in cross-examination it was pointed out to LOW Kim-hung that he had in a statement to the police shortly after his arrest said in answer to a question that he had assisted CHAN Keung to find a person called Ah Kei to see if the latter would agree to take part in the robbery and that he had not mentioned this in his earlier verbal evidence in this court. It was also demonstrated in cross-examination that he had left out in his evidence earlier matters which he had admitted in the summary of facts put before the court on his plea of guilty to the second count.

Members of the jury, you have that statement and the summary of facts before you and you will be in a position to judge if there are these inconsistencies. You have heard the explanation given by LOW on these inconsistencies. If you do not accept the explanation, these inconsistencies merely go to the witness's credibility and the contents of the statement and the summary of facts before you are not evidence of truth. If you accept this explanation and provided you act with caution, you may give such weight as you deem fit to his verbal evidence in this court. (Emphasis supplied)

13. While this passage might have been more happily and more explicitly put, we do not think that it could have been anything but clear to the jury that neither the statement nor the summary were evidence of the truth of their contents. Nothing on this ground causes us to feel that we should interfere.

14. The second main ground is that the defence were not aware of two convictions Low had at the time of his giving evidence. Low, who had been on bail up to trial, did, on the very morning upon which he was to give evidence, plead guilty to an offence of burglary and one of forgery which had occurred subsequent to the date of the robbery. He had gone into a room in the premises in which he lived, taken a bank passbook, forged the signature of the depositor and had obtained $10,000 from the account.

15. It had been assumed by all at trial that there would have been a plea of not guilty by Low. Mr. Hodge, who appears for the Crown in this Court, with him Mr. Dale, who appeared for the Crown in the Court below, accepts that the Crown has a duty to inform the defence of all the warts upon an accomplice who was giving evidence on behalf of the Crown. Here, and it is accepted that there has been no bad faith by Mr. Dale, there was a misunderstanding and the defence was not so informed.

16. It is obvious that the defence would have made use of those pleas to test the credibility of Low. They were deprived of that opportunity.

17. There was an irregularity, however inadvertant, and that was, in the context of this case, a material one. What is its effect?

18. Low was not put 'forward as a witness of probity. This was not a case, such as Paraskeva[1], of two witnesses of character one against the other. As we have said, neither of the Defendants gave evidence. The jury had, for their consideration only the evidence given by the prosecution. There was circumstantial evidence which was in line with but, of course, did not corroborate Low's evidence. The jury knew of the general nature of the witness Low and of his participation on the periphery of the robbery and his attempt to minimize his role.

19. In Paraskeva¹, the matter was of much greater moment for there there were two conflicting accounts given by two men of ostensible good character. One had a spent conviction for theft. That was not in evidence. O’connor L.J. in giving the judgment of the Court of Appeal referred to the "head-on collision between the complainant on the one hand and the appellant and his father on the other” Somebody, he said, was not telling the truth. It could not be said that it was n6t a relevant matter for the jury to be told that one man had been dishonest in the past. The Court of Appeal held the lack of knowledge of the defence to be a material irregularity. It went on to consider the only question which followed: Was that a case for the application of the proviso? It felt that the story as a very strange one and it could not think that the conviction was safe.

20. This point has concerned us but we do not think that the failure to inform the defence of the facts as we have set them out occasioned here any miscarriage of justice or rendered the conviction unsafe or unsatisfactory.

21. We would grant the application for leave to appeal, treat the hearing as the hearing of the appeal and dismiss the appeal.

Wesley Wong, Esq. (D.L.A.) for D1.

Edward Laskey, Esq. (D.L.A.) for D2.

A.A. Hoosen, Esq. (D.L.A.) for D3.

A.S. Hodge, Esq. & P. Dale, Esq. for Crown.

[1]  [1983] 76 Criminal Appeal Reports p.162