R. v. Yu Pik Shan

CACC000646/1994

IN THE COURT OF APPEAL

1994, No. 646

(Criminal)

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Coram: Hon Yang CJ, Mortimer and Liu JJA

Date of hearing: 10 August 1995

Date of judgment: 10 August 1995

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was the 2nd defendant in the court below. He was convicted after trial of arson and sentenced to three years' imprisonment. He now seeks leave to appeal against his conviction and sentence.

2. The only evidence against the applicant was his cautioned statement which was admitted after a voir dire, during which the applicant gave evidence. The applicant did not give evidence on the general issue.

3. The first ground of appeal is that the judge erred in admitting the cautioned statement made by the applicant. It is submitted before us that in considering the admissibility of the cautioned statement, the judge looked at the evidence of the police officers in vacuum without considering that they were experienced witnesses for whom it was easy to make any denial of allegations of police misconduct.

4. It is further argued that the medical evidence showed that the applicant had a small bruise and a small abrasion on his person, thereby supporting his complaint that he had been badly assaulted by the police.

5. The learned trial judge considered the question of admissibility with care and he came to the view that the evidence of the police officers was trustworthy and he did not accept the evidence given by the applicant. In ruling that the cautioned statement was admissible, he had, in our view, considered all the matters that ought to be considered and did not consider matters which he ought not have to consider. We do not think his ruling after the voir dire could be flawed in any way. We therefore dismiss the first ground of appeal.

6. The second ground of appeal reads :

"The learned District Court Judge erred in finding that notwithstanding the Appellant's passivity and efforts to restrain the 1st Defendant from committing the crime, he was guilty as an accomplice."

7. It is suggested by counsel for the applicant in his submission this morning that the issue arising from the facts disclosed in the cautioned statement is: Are the positive acts of the applicant, in the context of his urging the 1st defendant to refrain from committing the offence, sufficient to constitute him an accomplice ?

8. To answer this question, it is necessary to look at the cautioned statement in some detail. In the cautioned statement, the applicant was clearly talking about an arson case. He said that the 1st defendant had asked him to assist him "to set a fire". He said, "No", but the 1st defendant urged him to assist him. The reason why the 1st defendant wanted to set fire to the premises in question was, according to the applicant on the basis of what he was told by the 1st defendant, that the 1st defendant had been falsely accused of stealing by those who occupied the premises in question.

9. Upon the 1st defendant's urging, the applicant followed the 1st defendant to go and buy a travelling bag and ten bottles of turpentine. They then returned home and wrapped up the "mouths of the bottles", then they took a taxi to the premises in question ( - a factory in Hunghom). There, the 1st defendant poured the turpentine on the fabrics and the floor. The applicant again said to the 1st defendant that he must not do so. He then walked outside the door, followed shortly by the 1st defendant. He could smell the turpentine on the person of the 1st defendant. They then went downstairs together, hired a taxi and went home. When they were at a rubbish dump near home, they threw away the bottles and the travelling bag. The 1st defendant also handed the applicant a key and asked him to throw it away. He hid the key inside a flower bed.

10. It was on the basis of this cautioned statement summarised above that the judge came to the conclusion that the applicant was an accessory of the 1st defendant.

11. In his judgment, the judge said this:

"He admits assisting the 1st defendant buy a bag and going with the 1st defendant to buy the turpentine. He admits going with the 1st defendant to the victimized premises and seeing the 1st defendant set fire to them. Furthermore, he admits returning from there with the 1st defendant, and, at the 1st defendant's request, throwing away the keys to the premises, in short, concealing or destroying evidence. Those acts are more than sufficient to make the 2nd defendant an aider and abetter, or as it may be put, an accessory to the 1st defendant's offence."

12. With this conclusion we agree. For the reasons stated, we dismiss the application for leave to appeal against conviction.

Sentence

13. It is argued that the sentence of three years imposed upon the applicant is too severe. The 1st defendant was sentenced to a term of imprisonment of four years. We are of the view that having regard to the role played by the applicant, the sentence imposed upon him is entirely proper. The application for leave to appeal against sentence is also refused.

Representation:

Mr C Grossman, QC and Mr Anthony K O Kwok (Messrs Jesse H K Kwok & Co) for Applicant

Mr A A Bruce of the Attorney General's Chambers for Crown