The Queen v. Wong Siu-chung

Case No.

Court

Date07 Jun 1995

Judge—

Case Document

100%

CACC000571A/1994

IN THE COURT OF APPEAL

	1994, No.571
	(Criminal)

BETWEEN
	THE QUEEN
	and
	WONG SIU-CHUNG

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Coram: Hon. Yang, C.J., Power, V.-P. & Mortimer, J.A.

Date of Hearing: 7th June 1995

Date of Judgment: 7th June 1995

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JUDGMENT

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter WONG Siu-chung faced five counts of robbery and two of theft. The theft involved amounts of money that were stolen by using stolen credit cards. He pleaded not guilty to all counts and was found guilty after trial before Saied J. and a jury on the 5th count of robbery and on the two counts of theft. He was sentenced to imprisonment for six years on the robbery count and to two years on each of the theft counts, those sentences were ordered to be concurrent but consecutive to the robbery sentence. The robbery count upon which he was found guilty was as follows - that he on the 20th day of October, 1993, inside a lift of Tak Lung House, Tak Tin Estate, Kwun Tong, together with Ip Chun-leung and Yeung Chun-kin, robbed Cheng Yuk-kam of a 24K gold necklace with a diamond pendant, a wallet in black colour, a Hong Kong identity card, a driving licence and the next three items are of importance in the outcome - Superease Card, a Moneylink Card, a Jetco Card, two MTR stored valued tickets, $100 cash, a pager and a bundle of six keys. The two thefts counts were counts which involved the use of these stolen credit cards to withdraw in one case $1,000 and in the other case $600 from the Hongkong and Shanghai Bank and the Chartered Bank respectively.

2. The robbery offence occurred at 3:30 a.m. on 20th October 1993. The victim Miss Cheng Yuk-kam said that she was robbed by three men in a lift in Tak Lung House. She said that one had a knife and that she was menaced with this knife and that she was forced to not only part with the property but also to hand over her PIN number which of course could be used in an automatic teller machine. Immediately after the robbery she called the police. They arrived at about 4 a.m. and she was then taken around automatic teller machines in the Kwun Tong district. While doing so the police arrested a man who was wearing yellow glasses in connection with a commotion that occurred nearby. She identified him as one of the robbers and later at the Kwun Tong Police Station when another man came to bail the arrested man, she identified him as the second robber. This man was found to be carrying a withdrawal slip from an ATM which bore the account number of the victim and he also had two $500 notes.

3. Evidence came also at the trial from PC52052(PW6) who said he was on patrol with three others at about 4 a.m. and he saw three men or a group of three men at an automatic teller machine. The men ran off but were intercepted. PW6 said that he questioned and then released a man named Yeung Chun-kin, that was the man who was later arrested in the report room. PW7 said that he had questioned and released the applicant. There was evidence that the third man was the man with yellow glasses.

4. The applicant was not arrested until two days later on 22nd October at 9:50 p.m. He was not identified as being one of the robbers who participated in the offence on the evening of 20th October.

5. We will deal firstly with the second ground argued by Mr. Loughran, who appears for the applicant today. In this ground it was that the convictions were unsafe and unsatisfactory as the jury having rejected the cautioned statements relevant to the counts upon which the defendant was acquitted, either acted unreasonably by giving weight to other cautioned statements from the same source and/or wrongly found sufficient proof of guilt in evidence other than that in the cautioned statements, whereas such evidence amounted to no more than mere suspicion.

6. The evidence against the applicant, apart from his cautioned statements, was that a very short time after the robbery he was seen at an ATM with two persons who were identified as participants in the robbery. We deal firstly with the submission that the jury acted unreasonably by giving weight to the cautioned statement. It is clear that the jury were not prepared to act upon the cautioned statements in which admissions were made as to the other four offences. It is suggested that it would have been unreasonable and indeed irrational for the jury to act upon the statement as the fifth count, having rejected the other four, as all were taken sequentially by the same officer and that the verdict is therefore unsafe and unsatisfactory.

7. It must, however, be remembered that with regard to the 5th cautioned statement the applicant told of a knife which he said had been used in the offence and then led the police to the place where the knife was hidden. Might it be suggested that the jury would have been entitled to say: "We have a doubt as to the correctness of any cautioned statement that is unconfirmed but where we have independent evidence which confirms the correctness of a cautioned statement then we are prepared to act upon it."

8. It must also be borne in mind that the applicant gave no evidence. If there were any doubt as to the evidence of the prosecution they must have been raised in the course of cross-examination.

9. The trial judge said:

	"The evidence upon which I may comment may have left in your minds a very different impression from the impression it has left on my mind. As I have said, you are the judges of fact, I am not. What I say in my summing up is to assist you in reaching your verdict. It is not designed to take over your function and responsibility. Equally, if I stress in my summing-up matters which you think on due consideration are unimportant, you go on thinking that they are unimportant. If I leave out material that you think is important, you go on thinking that it is important.
	It is your duty to exercise the same independence of judgment in weighing my comments as you are entitled to exercise in weighing the testimony and the addresses of counsel. If after giving due consideration, you take the contrary view or a different view, then you are not only entitled to, but you are obliged to adhere to your own views of the facts. It is your duty to place your own interpretation upon the evidence. It is your duty to weigh the evidence and come to your own conclusions about what you believe and what you do not believe."

The trial judge, however, later in his summing-up, and particular reliance was placed upon this by Mr. Loughran, when dealing with the cautioned statements, said to the jury:

"If, after having considered the evidence as a whole, you reject even one of those interviews, you may find it difficult, I suggest, to accept the others as well because the rejection of one will so tarnish the veracity of P.W.8 that it will contaminate his entire evidence, so that you will have to reject the other statements too."

This was an observation of the judge upon the evidence. The evidence, however, as he had earlier clearly reminded the jury, was a matter for them.

10. Were the jury irrational in accepting the evidence and in refusing to follow the indication given by the trial judge which I have just read. I refer to The Queen v. Cheng Man-to (1986) Criminal Appeal No.542 in which (at p.13) Silke, V.-P. said when dealing with the test to be implied in circumstances such as this:

	"It all depends on the facts of the case that the test we pose ourselves is, to paraphrase Edward Davies L.J., in Durante ([1971] 56 Cr. App. R.104) at p.1617: 'Are we satisfied that no reasonable jury, who had applied their minds properly to the facts of the case, could have arrived at the two differing conclusions that this particular jury did?
	These verdicts are, on the face of them, inconsistent but we do not think this jury to have been an unreasonable one. The two sets of verdicts can stand together. They are not so irrational that the reasonable jury, which we think this to have been, could be said to have failed to apply their minds to the evidence before them. It is not, in our judgment, a question of lurking doubt but, whether the two differing conclusions are so unreasonable as to warrant our interference. The Applicant has not discharged the heavy burden laid upon him."

What we must ask ourselves applying the considerations enunciated there is whether the applicant in this matter has discharged the heavy burden laid upon him. A decision as to a matter of evidence is essentially a matter for the jury. What they had to ask themselves, as the judge told them, was whether they were sure as to the truth of the statement made by the applicant on count 5.

11. The applicant can only succeed on his ground if he can demonstrate to us that in accepting the admission of complicity in Count 5 that the jury acted irrationally. Having considered the matter, we are satisfied that we cannot say that they did. We are quite unable to see how it can be said that these verdicts cannot stand together. The jury clearly, given the surrounding circumstances which they were entitled to take into account and the admission by the applicant as to the knife, were sure as the judge told them they had to be, of the truth of the confessional statement made in relation to count 5. We are satisfied that there is nothing in this ground and we proceed then to the first ground. It is suggested further and in the alternative that the jury wrongly found sufficient proof of guilt in evidence other than the cautioned statement.

12. In the first ground it was urged that:

The learned Trial Judge erred in law in that at the close of the Prosecution case and in the presence of the jury, when advising the Applicant as to his election, he used a form of words the effect of which was to convey to the jury:

	(a)	that the Applicant's prior election not to give evidence may have been so as to avoid cross-examination and/or
	(b)	that the advice already given by Defence Counsel was to such effect and/or
	(c)	that it was the opinion of the learned Trial Judge that such avoidance of cross examination may have been the reason for the election."

What the trial judge said at p.147 of the transcript, and I refer only to the words to which objection was taken, he having explained that the applicant was entitled to give evidence or to remain silent, he said:

"The difference is that if you stay where you are and elect to say nothing, then there is no question of any cross-examination taking place but if you give evidence from the witness-box, then you will be liable to cross-examination."

This remark was made in the presence of the jury and was made after Mr. Loughran, who was then appearing for the applicant, announced that the applicant understood the position, had been advised and elected not to give evidence and not to call witnesses. Mr. Loughran suggested firstly that it was unnecessary for the judge to make the remarks which he did. This may well be so. Whether or not it was necessary however is not the real issue. Complaint is made by Mr. Loughran that, given the sequence, i.e. his announcement followed by the observations of the court, the trial of the applicant was prejudiced. It is argued that the jury may well have been given the impression that the judge thought that the applicant was avoiding cross-examination. Any applicant who does not give evidence does avoid cross-examination and whatever the trial judge may or may not have said the jury would have been well aware that that was the case. The observations of the judge while they may have been unnecessary cannot in our view have acted in any way to the prejudice of the applicant. The trial judge made a remark which was no more than common case as to a matter which would have been clearly in the jury's mind the moment it was indicated the applicant was not going to give evidence.

13. The trial judge furthermore gave a direction in which he said: -

	"The defendant elected to remain silent in his defence. You must understand that the defendant does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence.
	The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence before you from the defendant to undermine, contradict or explain the evidence put before you by the prosecution.

This was, in our view, a proper direction. Complaint, however, is made in relation to it that it was inadequate and particularly so in light of the earlier observations of the trial judge in that he did not say that no inference of guilt could be drawn from the silence of the applicant. We find nothing in this complaint. The direction was a clear one. It told the jury they must not assume that he was guilty because he had not given evidence. It told the jury that the fact that he did not give evidence proved nothing. The proper approach was clearly and fairly indicated by the words used.

14. The applicant in this matter was sentenced to a totality of eight years imprisonment. This totality was arrived at by imposing a sentence of six years on the robbery count and of two years concurrent on each of the theft count which were ordered to be consecutive to the sentence on the robbery count. He now seeks leave to appeal against those sentences on the ground that they were too severe. The trial judge when sentencing said:

"I have taken into account also the comments made in the case of Sun Sheung-chung Criminal Appeal 152 of 1993, where the applicant had pleaded guilty to one count of theft and one count of robbery."

He then cited from the judgment in that case which reads as follows:

	"The feature to which we now come is this. There was, as we have noted, the taking from the victim of her bank cash withdrawal card. Where bank account-operating material is extracted along with other property, then this is a position. First, the potential for loss of the victims increased, possibly very considerably. Secondly, the potential for gain to the criminal is correspondingly increased. Thirdly, the sense of violation suffered by the victim is, it is not difficult to imagine, heightened. And, fourthly, the period and scope of the criminal activity involved is extended.
	This 'bank account' feature, as we will term it, is appearing with amounting and alarming frequency in robbery offences against householders and others. And the time has come to warn malefactors - and this warning will become more and more firm as time passes if this sort of things continues unabated. Such a feature is a considerable element of aggravation; and it will attract additional punishment as a result."

The trial judge then went on to say:

	"Taking that into account and trying to reflect that in this sentence and looking at the sentence and its totality standing back as far back as I possibly can in considering the sentence, I think that a sentence of eight years will be appropriate for these offences.
	To achieve that result, I order that the sentences on counts 5(robbery) and 6(theft) will be consecutive."

We have considered the totality of eight years and are satisfied that the sentence was overall too severe. We think the appropriate method of sentencing in a case of this nature is to impose the major sentence on the robbery count and to make the other sentences concurrent therewith, that is not to say that the sentencing on the robbery count does not take into account of the aggravating feature whereby the information at knife point was extracted from the victim. That is, as pointed out in Shun Sheung-chun, a feature of considerable aggravation and that being so we are satisfied that the robbery count should have attracted a sentence of seven years and not of six years. We are satisfied that the sentences on the two theft counts were correctly fixed by the judge at two years on each and they were correctly ordered to be concurrent but we order that those counts also be concurrent with the sentence imposed on the robbery count making a totality of seven years.

15. The application for leave to appeal against sentence will be allowed and the sentences will be varied accordingly.

(T.L. Yang)	(N.P. Power)	(Barry Mortimer)
Chief Justice	Vice-President	Justice of Appeal

Representation:

Mr. Paul Loughran (D.L.A.) for Applicant re conviction.

Applicant in person re sentence.

Mr. A.A. Bruce, Deputy Crown Prosecutor (Ag.) for Crown/Respondent.