R. v. Li Kwok

CACC000074/1994

IN THE COURT OF APPEAL

1994, No. 74
(Criminal)

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Coram: Hon. Nazareth, V.-P., Litton and Bokhary, JJ.A.

Dates of hearing: 28 October 1994 and 21 February 1995

Date of judgment: 21 February 1995

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J U D G M E N T

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

1. The applicant was convicted on 2nd February 1994 by Duffy J, sitting with a jury, on counts 4, 5, 6 and 7 of the following 8 counts:

(1) Li Kwok, on the 11th day of July 1990, at 467 King's Road, North Point, Hong Kong, together with other persons robbed YU Dao-ming of one gold 'Rolex' watch, one diamond ring, cash $7,000 Hong Kong currency, one portable telephone, one Hong Kong Identity Card, one Hong Kong Bank Credit Card, one China Entry Permit and one briefcase;

(2) Li Kwok, on the 7th day of September 1990, outside the lift of 11, Wai Yan Street, Tsz Chong Lau, Tai Po, New Territories, Hong Kong, together with another person robbed CHENG Yin-ma of cash approximately $3,000 Hong Kong currency, one gold 'Rolex' watch, one Nanyang Commercial Bank Mastercard, one Hong Kong Identity Card, one string with three pieces of jade and a piece of string with two jade, one copper and one gold ornament;

(3) Li Kwok, on the 7th day of September 1990, outside the lift of 11, Wai Yan Street, Tsz Chong Lau, Tai Po, New Territories, Hong Kong, together with another person, had in his possession a firearm at the time of committing a robbery;

(4) Li Kwok, on the 10th day of September 1990, near Shatin, New Territories, Hong Kong, together with other persons robbed TAM Ka-hei and YIU Catalina of one 'Rolex' watch, cash $7,000 Hong Kong currency, one 'Dupont' lighter, one necklace and one walkman;

(5) Li Kwok, on the 10th day of September 1990, near Shatin, New Territories, Hong Kong, together with other persons, had in his possession a firearm at the time of committing a robbery;

(6) Li Kwok, on the 11th day of September 1990, in the New Territories, Hong Kong, together with other persons robbed WONG Hon-ping of cash $100 Hong Kong currency, one 'Rolex' watch and credit cards;

(7) Li Kwok, on the 11th day of September 1990, in the New Territories, Hong Kong, together with other persons, had in his possession a firearm at the time of committing a robbery;

(8) Li Kwok, on the 11th day of September 1990, at Tsing Yi, Hong Kong; had in his possession a 7.62 calibre pistol and 14 rounds of 7.62 calibre ammunition, without a licence.

He was sentenced to a total of 18 years imprisonment. He now seeks leave to appeal against conviction.

2. He came to the attention of the police in the following way. On 11th September 1990, a Toyota Corolla sedan was driven out of a private car park without paying the parking fee. It returned later in the day. The police were called. The applicant was driving it. Along with three passengers in it he was escorted to the Tsing Yi Police Station. When the car got to the car park of the police station, the applicant fled. He was not arrested until he returned to Hong Kong some 18 months later from Taiwan. By that time none of the victims were able to identify him. So virtually the only evidence against him consisted of his confessional statement made to the police on 18th February 1992 when he was arrested upon his return.

3. The applicant relies upon three grounds in support of his application to appeal against conviction. His first ground is that the verdicts of not guilty on counts 1 and 2 are inconsistent with the verdicts of guilty on counts 4 and 6. The law in point is conveniently set out in para.7-66 of Vol. 1 of Archbold 1995 in this way:

"An appellant who seeks to obtain the quashing of a conviction on the ground that the verdict against him was inconsistent with his acquittal on another count has a burden cast upon him to show not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference by an appellate court. The court will interfere if it is satisfied that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion which was reached: R v Durante, 56 CrAppR 708. In Durante, the Court of Appeal approved the decision in R v Hunt [1968] 2 QB 433, 52 CrAppR 580, in which Lord Parker CJ said the principle in every case is whether the inconsistency is such that it would not be safe to allow the verdict to stand. The fact that two verdicts are logically inconsistent does not, however, make the verdict complained of unsafe unless the only explanation of the inconsistency must or might be that the jury was confused or adopted the wrong approach: R v McCluskey, 98 CrAppR 216, CA; R. v Segal [1976] CrimLR 324, CA".

4. Turning then to the evidence, there is no question here that the offences took place. The question is rather whether it was the appellant who was involved. None of the victims was able to identify him, as we have said. They each gave evidence of being held up by more than one person and made to hand over the property specified in the various changes. When the applicant fled from the car in the Tsing Yi Police Station car park on 11th September 1990, he left two female passengers and one male passenger named PANG Chun-wai in it. The police later searched the boot and found an air pistol and 14 rounds of 7.62 calibre ammunition. The statement he made contained detailed admissions of how he obtained the pistol and ammunition and had taken part in several robberies.

5. Reverting then to the 1st applicant's first ground, it is pursued by Mr John Hemmings who appears for him in the following way. He compares the evidence on counts 1 and 2 upon which the applicant was found not guilty with those of counts 4 and 6. In substance his point is this, that the verdicts on all these grounds are founded upon the applicant's statement to the police. As we have already said, there is no evidence of identification and, essentially, that statement is the only evidence. Mr Hemmings submits that implicit in the jury's verdict of not guilty on counts 1 and 2 must be a rejection of the statement. But, he submits that it was necessary for the jury to accept that statement to found the verdicts of guilty on counts 4 and 6. Therefore, he adds, plainly, the verdicts are inconsistent to a degree upon which they cannot be sustained. He concedes, however, that the applicant's admissions as regards count 1 is vague, which they clearly are. The jury might well have been in doubt as to whether it was the first count that the applicant had in mind in the admissions concerned, and found him not guilty for that reason. The verdict, therefore, on this count would not afford Mr Hemmings a viable foundation for his submission if the admission in the applicant's statement clearly relates to counts 4 and 6. We will come presently to those.

6. Turning to count 2, there was in reference to it evidence additional to the admissions in the applicant's statement, in that articles stolen in the count 2 robbery were found in the possession of the two girls who were in the Toyota Corolla sedan on 11th September 1990. However, those items could have found their way to the girls through PANG Chun-wai who was a participant in at least some of the offences, a friend of the applicant and clearly involved in these succession of offences. There is immediate superficial similarity in one of the robberies described by the applicant with that in count 2, primarily in regard to the location, i.e. Tai Po. On the other hand, the applicant's counsel at his trial, Ms Remedios, eloquently questioned whether the victim, CHENG Yin-ma, was talking about the same robbery. As she pointed out, the applicant in his statement denied that he was armed in that robbery. The victim testified that one of the two robbers was holding a gun. Ms Remedios also pointed to other differences. She asked if it was the same robbery. Understandably the jury might well have accepted her point and on that basis concluded that count 2 was not proved.

7. But that is far from being the case with respect to counts 4 and 6. Notwithstanding Mr Hemming's analysis of the relevant evidence, those were distinctive offences. One, the ramming of one vehicle by another and the other, a firearm being used to strike the victim in relatively petty circumstances. It seems to us that the jury were not likely to have had any difficulty in clearly relating the admissions to counts 4 and 6. We therefore reject the submission that there was an inconsistency of verdicts of the sort that would be necessary to allow the appeal.

8. We turn then to the second ground which was that despite proper directions to the jury as to the evidential effect of previous convictions, unfairness may have resulted from the exercise of discretion to permit the applicant to be cross-examined as to his previous conviction for two robberies and sentence to 9 years imprisonment in 1982. The point Mr Hemmings makes in support of this ground is that the revelation of these convictions, their nature and the sentence would have had such an effect upon the minds of jurors as to render the present conviction unsafe. He submits that the prejudicial effect of those convictions totally outweighed their probative value. Also, he submits that the applicant could not have mounted a defence to the admissions in his statement without attacking the conduct of the police. However that may be, it seems to us that there was clearly an attack on the police.

9. Mr Hemmings also contends that the applicant did not put his character in issue by claiming to be a "caring family man". On the other hand, we think it fair to say that what the jury was intended to conclude and what they could have concluded, was that the applicant was a respectable, caring family man with all that implied. It is not in dispute that a judge has unfettered discretion under s.54(1)(f)(ii) of the Criminal Procedure Ordinance. That position was made quite clear by the House of Lords in R. v. Selvey [1970] AC 304 as summed up in the headnote at 305:

"... that a judge had an unfettered discretion under section 1(f)(ii) of the Act of 1898 [the English equivalent of s.54(1)(f)(ii)] to admit or exclude the previous record or character of an accused and to allow cross-examination on it; and there was no general rule that the discretion should be exercised in favour of the accused, even where the nature of his defence necessarily involved his making imputations on a prosecution witness."

The judge dealt with the matter in the following way in his summing-up:

"In the course of cross-examining the defendant, Mr Schapel asked him to concede that he had previous criminal convictions. Remember that he had two convictions for assault occasioning actual bodily harm, one in 1980 and one in 1982, and that in 1982 also he had convictions for 2 robberies for which he was sentenced to 9 years' imprisonment. Now, for the purpose for which he was cross-examined on these matters was not to show that the defendant had a tendency to commit offences such as the one charged and a disposition towards criminal activity. You must not say he has committed criminal offences in the past, therefore he must be guilty. These previous convictions are not evidence of guilt. They do not go to proof of guilt in this case."

This was a meticulous direction, which, Mr Hemmings conceded, fully deal with the matter.

10. At the end of the day we are not persuaded that the judge dealt with the matter in any way that was objectionable. We find no merit in this ground.

11. We turn to the third and final ground. This relates to a passage in the summing-up which deals with lies and their use as evidence of guilt:

"If you come to the conclusion that these allegations against the police are not true and that the defendant has been telling you lies on that and/or other matters or telling the police lies or telling lies in the statement he made to the police, you are entitled to ask yourselves: Why is he telling lies?

But you must not convict him simply because he is telling lies. People tell lies for reasons other than that they are guilty, perhaps because they do not believe the truth will be very convincing, or because they want to hide the truth from family or friends, or for other personal or tactical reasons, or to protect someone. That is not an exhaustive list of reasons for people telling lies but merely some examples of why they may tell lies other than because they are guilty.

Of course, if, having considered all of the evidence, you come to the conclusion that the defendant has told you lies and you are satisfied, having considered all other possible motives for lying that he's told you lies out of an awareness of guilt, then that is a factor you can take into account when considering the evidence in the case that points to the guilt of the defendant. Lies are not themselves evidence of guilt. They do not prove guilt themselves. You must not convict simply because you conclude he's lied. But if you conclude that he has lied out of an awareness of guilt, then you could use that to strengthen any inferences of guilt you draw from the other evidence in the case. If you think any one of these other possible motives for lying is equally or more compelling than an awareness of guilt, then the fact that lies have been told loses significance."

Plainly the direction in that last sentence is flawed. Mr Reading, for the Crown, does not seek to support it.

12. However, taking the summing-up as a whole, we are satisfied that the jury were not misled. Moreover, if we are wrong in that view, we have no doubt that even if that direction had not been given, or if a full Lucas direction had been given, the jury would have come to the same conclusion. This can plainly be seen to be a case where the jury quite simply had no cause or occasion to rely upon lies. The direction was unnecessary. It is perhaps unfortunate that the judge came to give it. But that observation is not intended to be any criticism of the summing-up as we are not aware of the precise nature of the submissions and addresses made before him. In this ground, also, we find no merit and reject it.

13. In the result, we do not find the conviction unsafe or unsatisfactory either upon the individual grounds or upon their cumulative effect. We would accordingly refuse leave to appeal against conviction.

Representation:

Mr John Reading (Crown Prosecutor) for Respondent

Mr Desmond Keane Q.C. and Mr John Hemmings (M/s Anthony Kwan & Co.) for Applicant