Yu Tit-shing and Another v. The Queen
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CACC000695/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 695 OF 1971 -----------------
----------------- Coram: Huggins, Leonard & Li, JJ. Date of Judgment: 19th January, 1972. ----------------- JUDGMENT ----------------- Huggins, J.: 1. These two Appellants were two of four Accused charged before the District Court. There were in all ten charges before that Court. The 1st Appellant, YU Tit-shing, was charged on the 1st, 3rd, 4th, 5th 6th and 7th charges. The 2nd Appellant, TUNG Siu-ming, was charged on the first nine charges. The learned District Judge found there was no case to answer on a number of the charges and he found the 1st Appellant guilty on charges 1, 3 and 4, the 2nd Appellant guilty on the 2nd charge, in respect of which he had pleaded Not guilty: he pleaded Guilty to the other offences with which he was charged. The 1st Appellant appeals against conviction and the 2nd against sentence. 2. The charges against the 1st Appellant were two counts of robbery and one of assault with intent to rob, all of which offences are alleged to have been taken place within a period of about two hours. But the first point which is taken on the appeal is that on 5th August, some time before the trial took place, the 1st Appellant applied for bail pending the trial and that in the course of hearing that application the learned judge was informed of the Appellant's previous criminal record. The case came on for trial before the same learned judge and the 1st Appellant objected to his trying the case on the ground of possible bias. The learned judge rejected the suggestion that another judge should try the case, commenting that although he did know that there was a previous criminal record he could not remember the details. In our view there is no substance in this ground of appeal. It not uncommonly happens that in the course of a trial inadmissible evidence is put before the court. Where this happens the judge has to decide whether it is right to proceed with the trial or whether a fresh trial must be ordered. It has commonly been thought that different considerations apply when there is a trial by jury and when there is a trial by a professional judge. Whether that be right or not in the present case the learned judge was satisfied that he could proceed without bias and we see no reason to think that he wrongly exercised his discretion. We say only that it is, as no doubt the learned judge in this case realised, desirable where it can conveniently be arranged that a judge who has been informed of a previous criminal record on an application for bail should not try the case. subsequently. However, we think that the mere fact that a judge has heard an application for bail in such circumstances is not an absolute bar to his trying the case. 3. All three offences are alleged to have taken place, as I say, on the same night, and the first in time was Charge 4. A lady, who in fact is the wife of a police officer, stopped her car at Sun Tai Uk Village at 11:30 p.m. on 7th July. It appears that she intended to leave her car there by the side of the road and she was in course of locking the doors and putting up the windows when a young man with a knife approached her. He said that he had come to rob and ordered her not to shout. He then asked her to sit on the front passenger's seat and asked for the keys of the car, which the witness was sitting on. It would, therefore, appear that she was still sitting in the driver's seat and that she was told to move over to the passenger's seat on the near side. Another young man then came to the left door of the car, and he was not armed. He asked for the ignition key and the witness refused to give it to him. She then said that "the man on my right" insisted on having the key. This appears to have been the man with the knife who first come up to her. The witness protested that she must have the car tomorrow but agreed that she would follow them into Kowloon where they proposed to steal another car. Another young man boarded the car and sat in the rear seat and the man "originally on my left" also got into the rear seat. That, at first sight anyway, would appear to be the man who was not armed and who first asked for the ignition key, and that is the person, who was subsequently identified by the witness as the 1st Appellant. However, the witness said quite clearly.
The witness said that the car was driven into Kowloon, where the driver got out and stole another car. She was then allowed to drive away in her own car. (It is perhaps an unfortunate commentary on the present state of our society that the witness in the course of her evidence remarked:
The witness reported the robbery to the police - I should perhaps have mentioned that property of hers had been taken from her - and she subsequently identified the 1st and 2nd Appellants as two of those who had taken part in the robbery, this identification being made at a formal identification parade. She mentioned expressly that the 1st Appellant had a scar on his face. The 2nd Appellant she said, was the man who in the first instance sat on her left but later sat in the rear seat of the car, and he was armed with a knife. 4. The next offence in time was Charge 3, as to which TAM Hin-lee said that he was walking in Shatin at Kang Hau Road - which we understand is quite a short distance from the scene of the first robbery, so that the robbers are alleged to have gone into. Kowloon and back again by the time of this second offence. The time of the second offence is said to have been 11:45 p.m. A car pulled up near him and two persons alighted from it. Each had a knife and pointed it at him and ordered him to board the car. Inside the car he was robbed. However, he did not disclose the presence of all his money and when they found that he had $100 more than he had at first disclosed, he says, one of them struck him with an elbow. He was driven in the car in the direction of the Che Kung Temple and eventually allowed to alight. He identified two persons as having alighted and come up to him in the first instance: the 1st Appellant was one of them and he was the driver of the car. He said in cross-examination that he recognised the 1st Defendant "from his outline" and that the outline of the 1st Defendant was "similar" to that of the man who was there. 5. The conduct of the identification parade at which this witness identified the two men and at which the other witnesses also made identifications has been vigorously attacked and in cross-examination of this witness, Mr. TAM Hin-Lee, it was suggested to him that witnesses attending the parade could see the people on the parade before they started. He said there was no curtain in the room where the identification parade was held and that there was a window through which those inside could see out and those outside could see into the room. He did not notice if the door was kept open. 6. The third offence was that charged in the 1st charge, which was an assault with intent to rob alleged to have been committed at about 1:00 o'clock on the following morning in Fat Kwong Street, Kowloon. Mr. CHENG Ah-kan, an elderly man, was going home from work when three youths attacked him and, when he resisted, one of them punched him on the face. He said that his nose began to bleed, the significance of this being that there was medical evidence of an examination made about half an hour later when the doctor found no sign of bleeding within the previous hour, although the patient complained of tenderness in the nose. One of the three men took out a knife and threatened him with it and he was pushed into the car. This was the car which was said to have been stolen when the witness in the 1st charge was driven into Kowloon. While they were in the car another car came along, which in fact was a police car, and before the witness could be robbed the occupants of his car ran away. He, the victim in this case, identified the 1st and 2nd Appellants, identifying the 1st Appellant as the driver and the 2nd Appellant as the man who was holding a knife. 7. In cross-examination there was a contradiction in his evidence about the colour of shirt worn by a third man, for he said that he could see very clearly that there were a blue shirt, a white shirt and a yellow shirt, but when cross-examined by the 2nd Appellant he said that he saw the shirts to be green, white and yellow. It was not in dispute that the 1st Appellant was wearing a yellow shirt. The learned judge in his judgment suggested that the discrepancy was due to a mistranslation. That was not suggested at the time and it was perhaps dangerous ground, but it cannot directly affect the conviction of the 1st Appellant. 8. As I say, the identification parade was attacked. We see no reason to believe that the identification parade was not carried out with complete propriety. The 1st Appellant suggests that he was forced to take part but he agrees that he made no objection at the time, saying that he was frightened of the police. The evidence was that the witnesses were kept in another room until the time they were called to the scene. The 1st Appellant tells us they were in the corridor outside, but that was never suggested in the course of the trial. He complains that the Superintendent in charge of the parade did not personally feach each witness from that other room, but we see no reason to think that he was under any obligation to do that or that the witnesses had an improper opportunity to see the parade before they were called. 9. It was then suggested that there was another impropriety in the course of the trial. During an adjournment in the middle of the evidence of a police detective constable, that witness was alleged to have spoken to the prosecutor and was also seen to write something on his own hand. There was a third allegation that the witness took up a document from counsel's bench and consulted it. Objection was made at the time of the trial and the learned judge made inquiry into these matters. He accepted the assurance of the prosecutor that all that had happened was that he himself had spoken to the interpreter about a matter of translation in the presence of the witness, the implication being that nothing had been said directly to or by the witness. It is obviously desirable to avoid any possibility of allegations of this kind but we see no reason to believe that the judge came to a wrong decision when he accepted the explanation tendered. When questioned the witness frankly admitted that he had written on the palm of his hand the figures 8 and 7, indicating 8th July, which was the date on which the 2nd Appellant had led the witness to an apartment in Yaumati. It is complained that the judge did not himself examine the hand of the witness but he was obviously satisfied that he had been told the truth and it is indeed unlikely that the witness would have lied on a matter which could so obviously be checked at any moment. The judge no doubt had in mind this improper conduct on the part of the witness, but it did not affect the conviction of this Appellant directly. The judge did not think he was called upon to try any issue about whether the witness had consulted a document and we think he was right. He would, no doubt, however, have had this allegation in mind when considering the weight to be attached to the whole of the evidence of the witness. 10. It was then alleged that the witness in the 1st charge could not have been telling the truth when he said that the occupants of the car went out from two doors and ran away. We were shown two photographs which were produced in evidence (and which most improperly were not included in the record put before this Court) and he suggests to us, as he suggested in the court below, that it would have been impossible for anybody to get out of the near side door because of its proximity to the police car. We are unable to say that it was impossible and, in any event, the evidence does not show clearly that persons are alleged to have got out on both sides although it is said that the doors on both sides were opened. 11. It was suggested that the time alleged for each of these charges made it quite impossible physically for the Appellants to have taken part in all three. It is enough to say that these times were no doubt not precise times and that even if they were a few minutes out there was just time for the car to be driven from Shatin into Kowloon and back again. An error of five minutes on each of the 3rd and 4th charges would allow ample time for the car to have travelled in and out. 12. There were two points at which the 1st Appellant challenged the record and in particular he denied ever having mentioned a "telex". We must accept the record as we find it and we see no reason to believe that it is not accurate. 13. The Appellant has relied very strongly on the medical evidence that there was no bleeding of the nose of the old man in the 1st count, but the learned trial judge expressly said that he did not rely upon that as the assault, which was necessary to be proved on the 1st charge, and the fact that there was a contradiction does not mean that he was bound to disbelieve the whole of that witness's evidence. 14. The 1st Appellant in a very forceful and fluent submission to the court made other allegations of contradictions in the evidence of police witnesses but these were based on misunderstandings and we do not find the contradictions which he alleges. He also relied upon the fact that cautioned statements which were submitted by the Prosecution were not admitted in evidence by the judge, but this is not relevant to the issues we have to try. 15. In the result we see no reason to say that the conviction of the 1st Appellant on any of these charges was wrong and his application for leave to appeal is dismissed. 16. The 2nd Appellant was sentenced to seven months' imprisonment on each of the 1st, 3rd, 4th, 5th, 6th, 7th and 8th charges, that is 49 months; to five months on the 9th charge, which was a charge of theft, and to two months concurrent on the 2nd charge, which was possession of an offensive weapon, namely a fruit knife. 17. The only reason that he has advanced for our interfering is his family circumstances: he says the family is poor and that if he goes to prison for this period the position of the family will be oven worse. It has been said over and over again that the times for people to start thinking about their families is before they commit offences. It is quite impossible to say that the sentence on any one of these counts by itself was excessive and, in our view, having regard to the nature of this whole series of offences, it is impossible to say that the sentences were too long in sum. 18. The application of the 2nd Appellant is likewise dismissed. 19th January, 1972. Representation: Appellant is Person. Carolan for Respondent |