HKSAR v. Chan To
Read the full judgment text of CACC 221/2006 on BabelCite. This Court of Appeal judgment.
1. On 19 May 2006, following a trial before Deputy High Court Judge Line and a jury, the applicant was convicted on four counts of an amended indictment (counts 3, 4, 5 and 6) and was acquitted on two others (counts 1 and 2). His co-defendant, Shing Man-ping (D2), pleaded guilty at the outset of the trial to four of the counts on the original indictment (including the offences in counts 3, 4 and 6 to which the applicant pleaded not guilty) and received a total sentence of 14 years’ imprisonment
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CACC 221/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL criminal APPEAL NO. 221 OF 2006 (ON APPEAL FROM HCCC NO. 275 of 2005) ____________________ BETWEEN
____________________ Before : Hon Stuart-Moore VP, Stock JA and Wright J Date of Hearing : 5 October 2007 Date of Judgment (re: sentence) : 5 October 2007 Date of Judgment (re: conviction) : 8 January 2008 ______________________ J U D G M E N T ______________________ Stuart-Moore, VP (giving the judgment of the Court) : Background and facts 1.On 19 May 2006, following a trial before Deputy High Court Judge Line and a jury, the applicant was convicted on four counts of an amended indictment (counts 3, 4, 5 and 6) and was acquitted on two others (counts 1 and 2). His co-defendant, Shing Man-ping (D2), pleaded guilty at the outset of the trial to four of the counts on the original indictment (including the offences in counts 3, 4 and 6 to which the applicant pleaded not guilty) and received a total sentence of 14 years’ imprisonment. 2.The applicant was sentenced to 27 years’ imprisonment in totality. He now seeks leave to appeal against conviction. His application for leave to appeal against sentence was not pursued and we have, therefore, dismissed it. 3.The facts of the case can be shortly described. The offences covered by counts 3, 4 and 5 were all committed on 9 June 2005 and alleged, respectively, an attempted robbery of, amongst others, Au Ka-lei, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200, possession of a homemade self-loading pistol at the time of attempting to commit a robbery, contrary to section 17(2) of the Firearms and Ammunition Ordinance, Cap. 238 and shooting at Au Ka-lei with intent to do her grievous bodily harm, contrary to section 17(b) of the Offences against the Person Ordinance, Cap. 212. 4.The offences were allegedly committed by the applicant and D2 when they burst in on a number of people who were playing mahjong in a hut near Fanling. The applicant’s face was covered by a mask and he was alleged to be carrying a handgun. D2, who had no mask, was holding a spanner. The prosecution’s case was that the applicant took a bag from one of the mahjong players. He then turned to Madam Au whose bag was being worn across her body. There was a struggle during which Madam Au pulled down the applicant’s mask and they had eye contact for some few seconds. She then ran as the applicant shouted out: “In that case, I fire”. He then allegedly extended his hand, pointed the gun at Madam Au and fired. The bullet fortunately struck her handbag so that by the time it exited on the other side, it made only a small mark in the region of her navel. 5.One of the others present stated out loud that, as Madam Au had not apparently been injured, the gun must have been a fake. He then put up resistance as did a second man who threw a chair at the applicant. This had the result that the robbers fled empty-handed. Remarkably, as no one had suffered a loss or physical injury, the mahjong players then continued with their game. They treated the cartridge case and the bullet as “toys” until, next morning, Madam Au discovered that the bullet had gone right through her bag, tearing the edge of some banknotes which were inside. At that stage, a report was made to the police. 6.At 5.35 pm, on 10 June 2005, armed police went to the vicinity of Flat 111, Lai Tin House, at the Pak Tin Estate where the applicant was shown as the tenant. He was arrested in possession of the keys as he attempted to leave the flat. D2 was arrested inside the flat. 7.Also inside the flat, police discovered a homemade self-loading pistol and three live rounds of ammunition which formed the subject matter of count 6, namely, possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance. Amongst other items, the police also found a tear-gas aerosol can, a pair of handcuffs, a box containing ten masks and a spanner. 8.On 16 June 2005, Madam Au identified the applicant as the person whose face she had briefly unmasked and who had fired at her. 9.Important evidence in support of Madam Au’s identification of the applicant was later provided from the results of a forensic examination of the pistol found at the applicant’s address and the bullet found at the scene of the attempted robbery. In short, the pistol had fired the bullet which hit Madam Au. It was also established that although the applicant’s firearm was homemade, ammunition fired from it was capable of achieving similar velocity to ammunition fired from a pistol which had been manufactured. Defence case 10.The applicant’s defence at trial was that he had not been concerned in any of the offences. He testified that although D2, who was someone he had known for some time, had been at the flat where the gun and the other items were found by the police, they were there without his knowledge. Grounds of appeal against conviction 11.The first ground of appeal advanced by Mr Percy on the applicant’s behalf, with its eight subdivisions, amounted to an allegation against the applicant’s trial counsel of flagrant incompetence in the conduct of the defence. The particulars advanced were as follows:
Direction that co-defendant’s guilty pleas must not be regarded as evidence against the applicant not given 12.Taking some of the points raised in the 1st ground, the first complaint, set out at (i), related to paragraph 17 in the Admitted Facts which reads:
13.A closely related point arose under the 3rd ground of appeal which alleged a non-direction on the part of the judge to the effect that the jury were never informed that D2’s guilty pleas to those offences also faced by the applicant (counts 3, 4 and 6) could not be regarded as evidence against the applicant. 14.Mr Percy’s submission was that because these counts on the indictment were before the jury, they would have been able to read that in each count the allegation was against the applicant as well as D2. In other words, both were alleged to have participated in the offences together. Mr Percy argued that, from the way counsel for the defence had framed the admitted facts, the jury might have concluded that D2 had pleaded guilty to committing these offences with the applicant. This was, in our opinion, an extremely artificial argument. In the context of this case, there was no reason at all for the jury to have thought, any more than defence counsel who made the admission on behalf of the applicant, that D2 had pleaded guilty to the commission of these offences with the applicant. D2 was a separate individual who, charged with the offences against him, had pleaded guilty to them. The sole important issue before this jury, in the full knowledge that D2 was a guilty party, was whether the prosecution could prove that the applicant was also guilty of having played a part in these offences. 15.A moment’s consideration makes it clear that, far from constituting an admission that should not have been made, the admission assisted the applicant’s case. It helped his case in that it explained how the gun used in the crime came to be in his flat. It was brought there by the man who had since admitted his part in the robbery. Furthermore, establishing D2’s culpability in the crime was said by Mr Percy to have helped the applicant in the way the case was presented to the jury because Madam Au had been unable to identify the self-confessed criminal, D2, at an identification parade. Although we were not referred to this court’s decision in HKSAR v Lo Wai-ming [2007] 4 HKC 174, we merely add for the sake of completion that the factual situation in that case was entirely different and has no application to the present case. There, unexpectedly and without justification, the prosecutor had introduced evidence of a co-defendant’s plea of guilty to trafficking in dangerous drugs which included the words ‘together with’ the appellant who was then on trial. Prosecuting counsel asked the appellant whether the co-defendant was not being called because he knew “he pleaded guilty to taking part ‘with you’ in this drug transaction”. 16.Defence counsel in the present case dealt with D2’s guilty pleas in his final speech by saying, amongst other things:
17.The judge later echoed these sentiments in the summing up by stating:
Although the italicised passage (above) was not specifically criticised by Mr Percy in the perfected grounds of appeal, the written submissions or in oral argument, we took it upon ourselves to formulate a direction which, in all the circumstances, might, with respect, have better suited the situation, namely:
18.The circumstances will be rare in which it will be unnecessary for a judge to direct a jury that a co-defendant’s plea of guilty must not be regarded as evidence against the defendant but we have concluded that, in this case, to hold that the failure to do so constituted a material irregularity would be to favour form over reality. The whole defence case was that D2 had admitted committing the attempted robbery and that he in fact had committed it. For this reason, the defence had insisted on the addition in the agreed facts of the words: ‘Shing Man-ping committed the crime …’. The clear implication arising from this is that this supported the applicant’s case. For the judge to have said to the jury that D2’s plea should not be used to prove the applicant’s guilt ran the risk of undermining how the applicant was asking the jury to treat the plea. Moreover, the judge’s comment in his summing up that Shing’s guilty pleas did not mean that the applicant “cannot also be guilty of [these offences]” carried with it the necessary implication that the applicant might not be the culprit. We do not consider in the circumstances that the jury might have assumed that Shing’s plea could be used to prove the applicant’s guilt. Miscellaneous criticisms of trial counsel 19.All the remaining points raised by Mr Percy, which amounted to serious allegations levelled at a long-experienced member of the Bar, were wholly without substance. This is a conclusion we were able to reach even without the explanations given by trial counsel in his affirmation. There was not a semblance of merit in the suggestion of incompetence, let alone flagrant incompetence and the allegations should never have been made. 20.The contention at (ii) that counsel should have suggested to Madam Au not merely that she was mistaken but might also be “lying” when she identified the applicant as the gunman is nothing short of absurd and counsel did quite enough in his cross-examination to leave open the question of a mistaken identification for the jury to resolve. 21.The criticism at (iii) was an aspect of the case that trial counsel had very sensibly dealt with in the Admitted Facts. Mr Percy’s suggestion of incompetence on the part of defence counsel because of a failure to cross-examine Madam Au about her inability to identify D2, presumably to bring the point home more forcefully, bordered on the ludicrous. In the course of argument, Mr Percy put forward an example of the way in which he suggested trial counsel could have cross-examined Madam Au to demonstrate how she had mistakenly identified D2. He submitted that a comparison could have been made between D2’s photograph and the identification parade photograph showing the actor who was mistakenly picked out by Madam Au. Such cross-examination would, he suggested, have shown how wrong Madam Au had been. In making this submission, Mr Percy conceded that he had no knowledge as to whether defence counsel had been supplied with the identification parade photograph showing the actor in question although he was ready to suggest that trial counsel may not have done his duty in this regard. More significantly, Mr Percy admitted that he had himself not even bothered to make any photographic comparison between D2 and the actor so that he was not in any position to state whether there was any likeness between these two individuals, the very thing he was accusing trial counsel – without any basis for the suggestion – of having failed to do. 22.In fact, it is apparent from defence counsel’s closing speech that he had adduced ample evidence on which to address the jury about the possible unreliability of Madam Au’s identification of the applicant as the gunman. Defence counsel addressed the jury as follows:
23.The suggestion at (iv) that trial counsel had failed to cross-examine Madam Au on her witness statements is simply wrong (see: pages 105-109 of the appeal bundle) and the assertion at (v) is answered by the account Madam Au gave to the jury that, as soon as she had entered the identification parade room, she recognised the applicant but “wondered if there would be anyone who would look similar to him”. 24.In the context of this ground, Mr Percy also made the submission that there could have been “no better case” in which to have made an application of no case to answer at the conclusion of the case for the prosecution. The suggestion that trial counsel was fragrantly incompetent in failing to have made such an application was astounding having regard to the finding of the gun which was used in the attempted robbery at an address where the applicant was the tenant, coupled with Madam Au’s identification of him as the culprit. 25.The alleged failure by counsel in (vi) to attempt to cut out the passage in the applicant’s interview where he had referred to D2 as an illegal immigrant to whom he gave a place to stay, caused no prejudice to the applicant. On the contrary, it was an essential part of his defence which, if believed, would dispel the suggestion that D2 was his partner in crime. 26.The complaint in (vii) is better dealt with under the 2nd ground of appeal and there is nothing in the suggestion in (viii) that other eye-witnesses to the attempted robbery should have been cross-examined in the way suggested by Mr Percy. Experienced counsel who conducted the defence at trial, wisely chose not to adopt such a course. Directions on the approach to evidence about weaponry found at the applicant’s flat 27.In the 2nd ground, it was submitted that the judge was wrong, in relation to the pistol, the aerosol can of tear gas and the handcuffs, to have directed the jury in the following terms:
28.However, this single line in the judge’s directions which is criticised followed a passage which explains precisely why he gave this direction. Immediately beforehand, the judge had said:
29.These directions also put into their correct perspective “the relevance and probative value of the presence” of these items as to which Mr Percy sought to attack trial counsel’s tactics when failing to object to their production in ground 1(vii). The judge continued by saying:
Conclusion 30.The case against the applicant was strong and the verdicts were neither unsafe nor unsatisfactory. 31.The application is dismissed.
Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent. Mr Duncan Percy, instructed by Messrs Simon C W Yung & Co. for the Applicant. |
Cases cited in this judgment