The Queen v. Tung Ching Tao and Others

IN THE COURT OF APPEAL

1987, No.298
(Criminal)

BETWEEN

_______________

Coram: Court of Appeal (Hon. Silke, V.-P., Hunter & Power, JJ .A.)

Date of Hearing: 30th December 1987

Date of Judgment: 30th December 1987

_______________

J U D G M E N T

_______________

Power, J .A. :

1. The three applicants faced two charges - one of robbery and one of possession of a firearm and ammunition. The first charge was that on 27th day of October 1986 at Tung Chau West Street, Cheung Sha Wan, Kowloon, they robbed Cheung Kuen-kwong of a quantity of gold ornaments and jewellery. The second charge alleged that on the same day they had in their possession a revolver and six rounds of .38 special calibre ammunition. They were found guilty after trial by jury of both charges.

2. The Crown's evidence was that on the day in question, at about 9:45 in the morning Mr. Cheung the victim who was employed as a courier by the Chow Sang Sang Goldsmith Co. went to his company's factory premises in the Hong Kong industrial Centre in Castle Peak Road. He then collected a quantity of gold ornaments and jewellery valued at about $230,000.00 for delivery to the company's retail branches. Having signed the receipt and placed them in a black briefcase, he left the premises and at about 9:55 a.m. proceeded towards his car. When he was a few paces from the entrance he was struck a blow on the chest with a clenched fist, the briefcase was snatched from his hand, a gun was pointed at him and he was told not to move or make any noise. The two men who had assaulted him then escaped with the briefcase up Tung Chau Street West in the direction of Castle Peak Road. Mr. Cheung then returned to the company's factory premsies, raised the alarm and the police were summoned. The briefcase was later recovered but none of the jewellery has ever been recovered. It was the prosecution case that the two men who attacked Mr. Cheung were the 1st and 2nd defendants and that the 3rd defendant was involved as a get-away driver.

3. The case against the 1st defendant was summed up by the trial judge as follows:

"The prosecution against the 1st defendant was simply Exh.27 (which was a statement he had made to the police) and the words alleged to have been used by the 1st defendant when the clothes were being recovered from Ma Tin Village in the late evening of the 21st of December. The prosecution say that Exh.27 the statement contained within it unequivocal admissions to the count of robbery and of being in possession of a gun in the course of the robbery. They say that the words - 'These were the clothes I wore at the robbery' spoken in the hut at Ma Tin Village merely confirmed what is contained in Exh.27".

4. Exhibit 27 contains a clear admission of participation in the robbery in that the defendant was alleged to have said:

“Well, sir, since they have told you everything, I am not afraid of telling you frankly. The gun and the axe belong to me. One should assume responsibility for what one has done. Ah Fai, Sam Kok Chor and I also robbed a male of a briefcase of gold bangles in Wing Hong Street and Castle Peak Road. Now I will tell you everything in the hope that I could be given a lenient sentence by the court. That is all I want to say.”

5. The case against the 2nd defendant was summed up by the learned trial judge in the following way.

"The prosecution say that the 2nd defendant also decided to confess after being shown the statements of the 3rd and 4th accused and that Exh.P29 (his statement) is a full, frank and unequivocal confession by the 2nd accused to the counts of robbery and being in possession of a gun while committing the robbery.

The prosecution say that the recovery of these clothes of the 2nd accused and his verbal admission that they were the clothes he used while committing the robbery merely confirms the confession contained within Exh.P29."

The statement made by the 2nd defendant is, as the trial judge said, a detailed description of his participation in the robbery.

6. The case against the 3rd accused was outlined by the learned trial judge in the following way:

"The evidence against the 3rd defendant is contained in the records of interviews, Exhibits P.31 and 32, and the account of the 3rd accused leading the police to Un Chau Street to recover the gun from the premises of the 4th defendant. Once again, that evidence of recovery of the gun could not by itself be sufficient for you to convict the 3rd accused, but may be support or confirmation only of the facts stated in Exhibits P.31 and 32."

The material part of Exhibits P31 and 32 reads as follows:

“One day, Ah To asked me to go out to have tea. When I had come out I saw Ah To who was at that time with Liu Fai. Ah To then asked me and Liu Fai to go to look for Wong Chi-cheong together. After we had found Wong Chi-cheong Ah To asked Wong for the bag. Then Wong Chi-cheong gave back the bag to Ah To. Ah To then turned around and took something out from the bag; then very quickly he put it at his waist band. I knew that it was a gun. Then the three of us went down to the street. Ah To boarded my goods (vehicle) and said to us, 'let's have tea together.' When I had driven to somewhere near Wing Hong Street, Ah To asked me to stop. He and Ah Fai then alighted.

Ah To told me he had to buy something and asked me to wait for a while. About 10 minutes later, I saw Ah To and Ah Fai come back together. At that time I saw Ah Fai carrying a briefcase in his hand. After the two of them had boarded the vehicle, Ah To said to me, '(We) have just pulled the job' Ah Fai then opened the briefcase. Inside the briefcase were gold ornaments. At that time I knew they had done a robbery.”

7. The 1st accused and the 2nd accused in their Grounds of Appeal raise a number of identical points.

8. Each asks, first; whether the search warrant was correct and whether the clothes were legally seized. The warrant to which they referred is the warrant which was used at the time when the premises in which they were sleeping were entered by the police. The evidence in voire dire proceedings conducted by the trial judge revealed that a search authorization had been obtained and that it was taken with the officers when they went to the two houses in Ma Tin Village. No question was ever raised at the trial to suggest that this warrant was not a proper and valid warrant. There having been no issue taken at the trial with regard to the validity of the warrant it is not a matter which can be raised on appeal.

9. There were, further; no objections at the trial upon the basis that the clothes had been illegally seized. The police officers gave evidence that the accused had; when giving statements; described the clothes which they wore at the time of the robbery and had later, on the evening of 21st December, taken them to the premises and pointed out the clothes. It was the case of the defence that this had never happened but that the police officers had simply gone back and selected some clothing from among that which was found in a wardrobe. This was a straight issue of fact which was for the jury to determine. The jury clearly, by their finding of guilt, determined it against the accused. There is nothing in our view in this ground.

10. Both the 1st and the 2nd accused urged this court to look again at the circumstances in which the statements were taken from them. Both alleged in their written Grounds of Appeal and before this court that there was maltreatment leading up to the signing of the confessional statements and that there was a refusal to allow them to have medical treatment. The statements were, as has already been indicated, crucial to the Crown case. Objection having been made thereto a voire dire was held after which the trial judge ruled in the case of the 1st defendant as follows:

"The 1st defendant objected to the admissibility of Exhibits 27 and 28 on the basis that he was assaulted, that the inculpatory parts of Exhibit 27 were fabricated by the police and that he was induced to sign Exhibit 28 by a misrepresentation. The prosecution called D.P.C. 13038 KWONG Bing-kwong, Detective Station Sergeant KUNG Chi-tim, Detective Sergeant 12862 WAN Hok-sing; Dr. K.H. Tan and Detective Senior Inspector LEUNG Tat-yung. The defendant neither called any evidence nor gave any evidence, a factor which I did not allow to adversely affect my assessment of the evidence.

There was evidence of two bruise marks on the knee of the 1st defendant which could have been consistent with an assault round the time of the defendant's arrest and the recording of Exhibit 27. I carefully assessed all of the evidence and gave anxious consideration to those matters raised by Mr. Wright in his final submission. I am satisfied that the statements, Exhibit 27 and 28, were given voluntarily and I am satisfied of that beyond a reasonable doubt. However, while I admit Exhibit 27 as part of the evidence in this case, I am going to exercise my discretion to exclude Exhibit 28. It was recorded some six days after arrest and so after six days when the defendant had been in police custody. I regard it as oppressive and unfair that the police should still be seeking at that stage to obtain evidence from the defendant to support their case against him."

11. In the case of the 2nd defendant he said:

“The 2nd accused objected to the admissibility of Exhibits 29 and 30 on the grounds that he had been assaulted and threatened by police officers and that in relation to Exhibit 30 he was tricked into signing it.

The prosecution called Detective Constable 16774 YIP Chi-fai, Detective Station Sergeant WONG Shu-ki, Chief Inspector Peasley, Detective Sergeant 12862 and Dr. K.H. Tan.

The defendant gave evidence and copies of pages of the Tsz Wan Shan Occurence Book were also agreed to be part of the evidence.

I considered all the evidence including the medical evidence to the effect that the 2nd defendant complained of tenderness to the back but no signs of external injury were found nine days after the alleged assault. I paid heed to Mr.Tang's final submission in which he raised many matters requiring careful consideration. I found myself satisfied beyond a reasonable doubt that Exhibits 29 and 30 were made voluntarily by the 2nd defendant and I admit Exhibit 29 into evidence. I regard Exhibit 30 in the same light as Exhibit 28 and exercise my discretion to exclude it for the same reason.”

12. The trial judge was satisfied beyond reasonable doubt that both statements were made voluntarily. It was then a matter for the jury, properly directed, to give the weight they considered due to the statements. Were the jury properly directed in this regard? The trial judge when summing up said in relation to the statement of the 1st accused:

"You saw the witnesses for the prosecution: D.P.C. 13038 KWONG Bing-kwong, Detective Station Sergeant Kong Chi-tim and Detective Station Sergeant Wan 12862. Did they satisfy you that this interview was conducted and recorded in the way they said? And even if you think the 1st accused is exaggerating or lying, are you satisfied so that you are sure that the statement is true and so are prepared to rely on it as evidence to prove the 1st defendant is a robber who robbed with a gun and convict him on the first 2 counts on the indictment? Any doubt you have about that, you must give to him and acquit him.

So far as the recovery of the clothes is concerned, I suggest that you regard that evidence as being in the same category as the statement. I suggest that if you do not believe the police about the statement, it is most unl1kely you will believe them about the recovery of the clothes though the contrary is not necessarily the case. So, if you reject the cautioned statement, Exh. 27, you should acquit the 1st accused."

He returned then later to make further observations in this regard saying:

"Give the submissions of Mr. Gerber and Mr. Wright your serious consideration. If they or any of them cause you to doubt the truth of the 1st defendant's statement, that is Exh.27, then acquit him. If you think there is anything in the allegations of impropriety against the police or question the police evidence about these statements, then be extremely careful about accepting them and placing reliance upon them. But if you are in no such doubt, if you are satisfied so that you are sure that Exh.27 is true, then if you are prepared to rely on it, you will convict the 1st accused on counts 1 and 2."

As far as the 2nd accused was concerned the trial judge said:

“Make up your own minds about that and all the other matters put to you by Mr. Gerber and Mr. Tang. Give their submissions to you what weight you think they deserve. If you have a doubt about the truth of Exhibit P.29 because of your assessment of the police evidence or what the 2nd accused told you or a mixture of both, then acquit the 2nd accused, because you could not convict him on the evidence of the buying of a watch alone. I suggest also that if you reject P.29, you will probably also reject the evidence about the recovery of the clothes and what is alleged to have been said.”

These were proper and fair directions. The matter was left squarely to the jury. They clearly resolved it, as they were entitled to do as judges of fact, against the accused. They accepted that the statements were true and convicted upon the basis of the facts admitted therein. Nothing has been raised in this ground of appeal that calls for interference by this court.

13. Both the 1st and 2nd accused also complain in their addresses and in their written grounds of appeal that their conviction was wrong as no stolen goods had been discovered and as there was no identification of them by the victim. This is, of course, quite true. The jury were, however, perfectly well aware that no stolen goods had been recovered and that there had been no identification but these matters clearly did not occasion them any doubt as to guilt.

14. A further matter about which they complained is that the victim said that the pistol produced at the trial was not the one used in the robbery. The trial judge dealt with this in his Summing-up saying:

"Mr. Wright says that you cannot even be sure that the gun produced by the prosecution is the gun used in the robbery because Mr. Cheung's description of it differs quite significantly from what you see in Exh.P27. Mr. Wright reminds you that Mr. Cheung has been robbed before and so should, as it were, be used to it. Well, Mr. Cheung told you he was rather afraid at the time, and you might think that armed robbery is not something you ever get used to. Make up your own minds whether Mr. Cheung's evidence makes you doubt that the gun produced in this case was the one used."

This was a matter of fact. It was squarely left to the jury for them to make a determination as to whether it left any doubt in their mind. It clearly did not.

15. A further matter raised by these two accused is that the alleged escape lorry had, according to the evidence of the 3rd accused, been sold some 20 days before the occurence of the robbery. Again this was a matter left by the trial judge to the jury. In this regard he said:

“The 3rd accused says that on 27th of October, he no longer had his own goods vehicle which he had sold earlier that month and he produced the record of transfer of ownership to substantiate that. In fact, his wife came to give evidence to testify that she was the registered owner of the vehicle and indeed that it was sold in early October.”

The jury must have had this matter sqauarely in their minds when they were considering the evidence, it was a matter of fact for their decision and it, also, clearly did not occasion them any doubt as to guilt.

16. There was nothing in any of the matters raised by the 1st and 2nd defendants which would require interference by this court.

17. The 3rd accused has raised a number of matters both in his oral submission and in his written Grounds of Appeal. There are a number of matters of fact which he says indicate that the statement was fabricated by the police and was signed by him because of assaults and threats. He referred particularly today to the taking of the statement which was said to have been taken at the Shumshuipo Police Station and he pointed to what he asked us to regard as irregularities and inconsistencies in the police evidence surrounding the taking of that statement.

18. The trial judge after the voire dire proceedings ruled as follows with regard to that statement:

"The prosecution seeks to have Exhibits 31, 32 and 33 admitted into evidence; 32, excluding that part that I have already mentioned, and the 3rd defendant objects to their admissibility on the grounds of threats and assaults by police officers and offers to the 3rd defendant that he would be a prosecution witness if he cooperated.

It was further alleged that Exhibit 31 was recorded not at Shumshuipo as the statement alleges but at Wong Tai Sin and at a later time. The prosecution called Detective Sergeant 12862 WANG Hok-sing, Detective Senior Inspector LEUNG Tat-yung, Chief Inspector Peasley and Detective Station Sergeant WONG Shu-ki. The 3rd defendant gave evidence but called no further evidence.

Mr. Lee raised some interesting points in his final submission and I gave these careful thought when I assessed all of the evidence. At the end of the day I was satisfied beyond a reasonable doubt that Exhibits 31, 32 and ,33 were given voluntarily by the 3rd defendant and I rule that 31 and 32 will be admitted into evidence but that Exhibit 33 should be excluded on the same grounds as I excluded Exhibits 28 and 30."

19. The trial judge was, having given consideration to all of the evidence before him in the voire dire, satisfied that the statements were voluntarily made. It was then placed before the jury for their consideration. We turn to what the trial judge told the jury in this regard:

"Well once again, members of the jury, weigh these matters in the balance and give them what weight you think they deserve. If you have a doubt about Exhibits P.31 and 32, acquit the 3rd accused. If you have no doubt and find that the conversation he had with the 4th accused when he led the police to Un Chau Street confirms the confessions, and if you are satisfied that you can rely upon them, then you must convict the 3rd accused. If you are satisfied beyond a reasonable doubt that he was involved in the robbery, you must convict him of the robbery and of possession of the gun."

20. This was an impeccable direction and the jury clearly were, at the end of the day, satisfied upon the evidence that the accused had participated in the robbery.

21. This accused also complains that the victim did not identify him, that no stolen goods were recovered that the gun was not identified by the victim and that his lorry had been sold before the robbery. The remarks I have already made with regard to these matters when dealing with the appeal of the 1st and 2nd accused apply equally in the case of the 3rd accused. Nothing that has been raised occasions us any doubt as to the propriety of the directions to the jury v as to the sufficiency of the evidence or as to the proper consideration by the jury thereof.

22. The application for leave to appeal against conviction of all three accused is dismissed.

Mr. A.P. Duckett, Q.C. & Miss Evena Chan (Crown Prosecutors) for the Respondent

All Applicants in person