HKSAR v. Lin Jinhuang and Others

CACC 171/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 171 OF 2008

(ON APPEAL FROM HCCC NO. 269 of  2007)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Wright J

Date of Hearing in respect of the 1^st applicant: 8 July 2009 and 7 October 2009

Date of Hearing in respect of the 2^nd and 3^rd applicants:  8 July 2009

Date of Judgment in respect of the 1^st applicant:  7 October 2009

Date of Handing Down Judgment in respect of the 2^nd and 3^rd applicants:  13 October 2009

Date of Handing Down Reasons for Judgment in respect of the 1^st applicant:  13 October 2009

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JUDGMENT/REASONS FOR JUDGMENT

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Hon Wright, J. (giving the judgment of the Court):

 1.The applicants who, respectively, were the 1^st , 3^rd , and 5^th accused at trial, sought leave to appeal their convictions by a jury before Deputy High Court Judge Geiser: each was convicted, after trial, unanimously, of one joint charge of conspiracy to rob contrary to s. 10(1) and (2) of the Theft Ordinance, Cap 210, and s. 159A of the Crimes Ordinance, Cap 200; each of the 2^nd and 3^rd applicants was convicted further of a charge of possession of an offensive weapon in a public place contrary to s. 33(1) of the Public Order Ordinance, Cap 245. The 1^st applicant was sentenced to undergo imprisonment for 10 years 6 months on Count 1 whilst each of the 2^nd and 3^rd applicants was sentenced to undergo imprisonment for 7 years on Count 1 and 2 years on the other count, to be served consecutively. The 2^nd and 3^rd applicants also sought leave to appeal the sentences imposed upon them: the 2^nd applicant’s application was dismissed on 13 May 2009 consequent upon his filing a Notice of Abandonment.

2.The applicants were unrepresented when they appeared before us on 8 July 2009. We adjourned the 1^st applicant’s application in respect of conviction to a date to be fixed and requested the respondent to provide us with assistance in regard to certain particular matters which appeared to us to have relevance to  that application. That request generated almost 500 pages of additional paper but singularly failed to deal with the issues upon which we had sought assistance.

3.We also invited the 1^st applicant to apply for leave to appeal out of time as it appeared that the judge had imposed a higher sentence on him on the unsupported basis that he had been the “principal player” of the conspiracy to rob. He made that application which we granted. He was afforded Legal Aid in respect of that application and was represented on 7 October 2009 by Mr. Philip Ross of counsel.

4.On 8 July 2009 we reserved our decisions in regard to the applications by the 2^nd and 3^rd applicants, indicating that we would deliver judgment on a date to be fixed: this we now do. On 7 October 2009 we dismissed the 1^st applicant’s application for leave to appeal conviction but allowed his appeal against sentence, set aside the sentence of 10 years 6 months imposed by the trial judge and substituted therefor a period of imprisonment of 8 years and 6 months on Count 1. We indicated that we would hand down the reasons for our decision: this we do now.

THE APPEALS AGAINST CONVICTION

The evidence

5.The evidence may be shortly stated. On 11 July 2007 police, acting on information, conducted an operation which involved mounting surveillance on the 18th floor of a hotel in Mongkok. In due course, in the lift lobby on that floor they arrested the 1st applicant. The prosecution asserted that 1^st applicant was told that the police suspected that he, with other men, was engaged in a planned robbery and that he then said "Five of them come to Hong Kong to rob for Lung Siu", adding that others had gone to the Star Ferry pier in Tsim Sa Tsui. Later, police officers located  five males, four of whom were each carrying a bag, at the Tsim Sha Tsui Star Ferry pier: in each bag were located various items including the offensive weapons which formed the subject matter of the additional counts, namely, in respect of the 2^nd applicant, a hammer; in respect of the 3^rd applicant, a knife. No charges were laid against the fifth male.

6.The 1^st applicant was interviewed on two occasions by the police. In the course of the interviews he said that he had introduced two of the other arrested persons to Lung Siu "for coming to Hong Kong to do something"; he had been given $2000.00 as travelling expenses to travel to Shenzhen; he came to Hong Kong where he was met by one Ah Wai and was taken to the hotel room where the other arrested persons assembled; he saw one of the others open a bag and take out a hammer; he then "sensed" that they had come to Hong Kong intending to rob; they all slept in the hotel that night; the following morning Ah Wai wanted to tell the four men to go to the Star Ferry pier but was unable to communicate with them in Putonghua; he had translated Ah Wai’s instructions to them.

7.The 1^st applicant also told the police that he merely was passing through Hong Kong as part of a journey to Thailand. It was not in dispute that, amongst his possessions, was found an airline ticket for a flight from Hong Kong to Bangkok: the reservation was for the day following that on which the robbery was to have taken place. The 1^st applicant elected not to testify or call evidence at trial but relied upon his explanation to the police and produced the airline ticket.

8.The 2^nd applicant was not interviewed by the police nor did he testify or call evidence at trial.

9.The 3^rd applicant was interviewed. He denied knowledge of the beef knife and of any involvement in the conspiracy and further denied that he had been to the hotel room at any time. Similarly, he did not testify or call evidence at trial.

10.Other evidence adduced by the prosecution included: the four persons arrested at the Star Ferry pier had arrived in Hong Kong the previous day within a period of two minutes of one another; DNA and fingerprint evidence plus recordings made by the hotel's closed-circuit television established that all five of the arrested persons had been present in the hotel room at one or another stage; each of the persons arrested at the Star Ferry pier was found to have superglue smeared on his fingers, whilst a number of used superglue packages had been located in a rubbish bag in the corridor outside the hotel room; in addition to the offensive weapon, each bag carried by the arrested persons Star Ferry pier was also found to contain a baseball cap; each of two of the persons arrested at the Star Ferry pier, the 4^th accused and the present 3^rd applicant, had in his possession a torn piece of paper which bore the identical characters for “Tsim Sha Tsui Star Ferry”, which pieces of paper, so the government chemist opined, came from one sheet, and which appeared to have come from a notebook found in the same rubbish bag.

The grounds of appeal

11.Each of the applicants relied upon home-made written grounds of appeal. The first ground advanced by the 1^st applicant complained that the judge referred to the fact that other accused had no previous criminal convictions in Hong Kong: the 1^st applicant did have previous convictions and, he contended, that was prejudicial to him. The judge dealt with this particularly carefully and warned the jury not to draw any adverse inference against the 1^st applicant: there is no merit in this ground.

12.The second ground complained that the judge "apparently took the police side" during the trial relying for this assertion on claimed inconsistencies in the testimony of prosecution witnesses. We have examined this and how the judge dealt with it in his summing up: there is no merit in this ground.

13.The third ground complained that the judge was wrong to have implied that the air ticket to Bangkok, which the 1^st applicant describes as being the only evidence in his favour, could not represent anything. All that the judge said in this regard was that the possession of the air ticket of itself did not exclude the possibility that the 1^st applicant was a party to the conspiracy, particularly given that the departure date was subsequent to the day of the intended robbery. It is self-evident that this observation was correct.

14.Subsequent grounds raised a number of complaints, largely concerning the way the judge dealt with various aspects of the evidence, which we do not regard it as necessary to traverse, save for one. Suffice it to say that we have considered the others and see nothing in them, individually or collectively, which warrants allowing this application.

15.The 1^st applicant touched upon the issue of the pieces of paper bearing identical characters which had been found in possession of two of the four persons arrested at the Star Ferry pier. It was his reference to this issue which caused us to request the respondent to identify the evidential basis of the judge apparently having told the jury that the papers had been given by the 1^st applicant to the other two men. We were also concerned that it may have been that the jury drew from the 3^rd applicant's records of interview, which were before the jury, a conclusion that it was the 1^st applicant who had provided those papers.

16.As to the concern that the judge may have suggested to the jury that it was the 1^st applicant who provided the pieces of paper, it is clear from the summing up that when the judge explained the nature of the conspiracy and indicated to the jury what the prosecution’s contentions were, he says: "The prosecution say that it was D1 who gave D4 and D5 these notes...". He subsequently embarks upon a comprehensive summary of the evidence during which, at no stage, nor subsequently, does he suggest that it was the 1^st applicant who had provided the pieces of paper; when discussing the evidence against each of the persons in whose possession the pieces of paper were found, he merely relates the fact that a piece of paper with those characters on it had been found in that accused’s possession upon arrest; when he summarises the evidence against the 1^st applicant he makes no mention at all of the papers. In our judgment, the judge made it perfectly clear to the jury that it was simply the prosecution contention that it was the 1^st applicant who had provided the papers and does not suggest, in any way, that there is any evidence to this effect.

17.We are satisfied, now that we have been placed in possession of the 3^rd applicant's records of interview, that the jury could not have relied upon anything in those records to find that it was the 1^st applicant who provided the pieces of paper to the 4^th accused and the 3^rd applicant: first, the 3^rd applicant says in each statement that it was Ah Wai who gave the paper to him; secondly, there is nothing in either record of interview that suggests that the 1^st applicant was Ah Wai; thirdly, the four males arrived in Hong Kong together, some two minutes apart, almost 2 hours before the 1^st applicant arrived which precludes the person who met the 3^rd applicant upon arrival, whom he identified as Ah Wai, from being the 1^st applicant.

18.There is some limited merit in one of the oral submissions which the 1^st applicant advanced. He complained that the judge had failed to draw together comprehensively, in a discreet passage, all of the factors which might be said to be in his favour despite the fact that the judge had brought together a summary of the prosecution evidence. In our view, that certainly would have been a more appropriate manner of dealing with those matters which could be said to have been favourable to the 1^st applicant: we would have preferred to have seen that done. That said, we are satisfied that the essential issue for the jury to decide in his case was sufficiently put before them, as a consequence of which the summing up was not flawed.

19.We would add that we also noticed that in the course of the summing up the judge had indicated to the jury that if they considered that what the 1^st applicant had said to the police in his statement was true, namely that he had not conspired to rob but was merely en route to Thailand, they were not to draw an inference of guilt against him. The judge ought to have continued to the effect that an inference of guilt is not to be drawn even if the jury concluded that what the 1st applicant had said might be true. This is a formula which is easy enough to use it but appears, on occasion, to be overlooked. The omission is of no significance in the present matter because the judge reminded the jury upon a number of occasions of the requisite standard of proof.

20.There was nothing in any of the grounds of appeal against conviction advanced by the 1^st applicant: consequently the application was dismissed.

21.The 2^nd applicant complained in his written grounds of appeal, first, about the lack of directions on the burden and standard of proof; secondly, about directions concerning the drawing of inferences; and, thirdly, about the use by the prosecution of an "informer" to establish his guilt. The directions given by the judge in regard to the burden and standard of proof as well as the drawing of inferences were adequate. The prosecution did not seek to rely on the evidence of an informer: the fact that an informer may have been involved was adduced at the specific request of those conducting the defence and resulted in one police officer being tendered for cross-examination.

22.There was no merit in any of the grounds of appeal advanced by the 2^nd applicant: consequently, the application is dismissed.

23.The 3^rd applicant confined himself to two grounds of appeal: first, that the judge was wrong to point out the cumulative effects of the circumstantial evidence that suggested a conspiracy; secondly, that the judge erred in suggesting to the jury that they would have little difficulty in being satisfied that the 3^rd applicant had lied when being interviewed by the police.

24.The answer to the first ground is simply that the judge would have failed in his duty had he not pointed out the pertinent, and probative, effect of the circumstantial evidence.

25.We recognise that the comment by the judge about which complaint is made was in strong terms but it was one that was open to him to make on the facts of this case: the 3^rd applicant had positively asserted when being interviewed that he had not entered, at any stage, the hotel room which had been occupied by the men which, demonstrably, was untrue in the light of the forensic evidence which had been led. It was not, of course, an instruction to the jury to find that the 3^rd applicant had lied, it having been prefaced with the normal qualification that, as an issue of fact, it was a matter for jury. It is worth reiterating, however, that the phrase "it is a matter for you" is not a mantra which will save a comment by a judge if, in proper context, that comment goes too far.

26.There is no merit in either of the grounds of appeal advanced by the 3^rd applicant for which reason we dismiss his application.

THE APPEALS AGAINST SENTENCE

27.In sentencing, the judge said:

“It is clear from the evidence that the 1^st defendant was the principal player in this conspiracy. He was responsible, almost certainly, with others for the recruitment of D2 to D5 to actually come to Hong Kong and carry out a robbery. Judging from the weapons that D2 to D5 carried, considerable violence must have been envisaged as a foreseeable consequence by each of the defendants.

This was a sophisticated operation which was very well-planned. Room 1809 of the Royal Plaza Hotel in Mongkok was the defendant's headquarters and it was there that the 2^nd to the 5^th defendants put glue on their hands in an attempt to prevent fingerprints. Each was armed with the weapons that I have described and each had a baseball cap, once again, to prevent identification.

...

As far as the 1^st accused is concerned, I accept from Mr. Halley that it was he who informed the police as to the location of D2 to D5. This indeed was the evidence. I am satisfied that this does entitle the first defendant to a discount in sentence. I adopt as my starting point with regard to the 1st defendant, a sentence of 12 years imprisonment. I will discount this by 18 months to reflect the information that he gave to the police leading to the arrest of the 2^nd to 5^th defendants coming to 10½ years on count one in relation to 1^st defendant.

With regard to D2 to D5, whilst most certainly very much involved in the conspiracy, I am satisfied that they did not play a leading role. Their role was clearly to carry out the robbery.

On the first count with regard to D2 to D5, I adopt a reduced starting point of 7 years imprisonment...”

28.We do not share the judge’s view that the evidence establishes that the 1st applicant was any more culpable than the others arrested in Hong Kong. The evidence suggests, we accept, that he introduced two of the four persons to the person known as Lung Siu in the Mainland; he received some $2000.00 as, he said, travelling expenses to Shenzhen. Other than that his role in Hong Kong appears, on the evidence, to have been no more culpable than that of the persons who had intended to effect the actual robbery: he, like they, had been met by Ah Wai on arrival; as has been discussed earlier, there is no evidence that it was he who had provided the written notes found in the possession of two of the arrested persons - indeed the evidence is to the contrary.

29.The categorisation by the respondent of his acting as a translator for Ah Wai as being assistance "… in directing the other accomplices... to assemble at the Star Ferry pier..." is simply unjustified. We see no justification for drawing a distinction between the roles played by the various accused.

30.The appropriate starting point for the judge to have adopted in respect of each of the accused would have been one of 9 years imprisonment in respect of Count 1.  Mr Ross reminded us of the decision in MO Kwong-sang v R (1981) HKLR 610 which has provided guidance for over 25 years in respect of the offence of armed robbery involving a knife or any other dangerous weapon, excluding a firearm, which was displayed to the victim. He faintly suggested that the upper band of 7 years imprisonment would be appropriate in the present instance. We disagree. First, the offence of which the applicants were convicted was one of conspiracy to rob, not robbery: whilst there may be instances when it is of assistance to have reference to sentences imposed in respect of the substantive offence when considering sentence in respect of a conspiracy to commit that offence, the overriding principle remains that the sentence must be appropriate for the offence of which the offender has been convicted. Secondly, the evidence can have left no doubt that this was a well-conceived operation which had involved substantial pre-planning, specifically recruitment of a number of persons as well as provision of transportation, accommodation and equipment. Thirdly, the execution of the object of the conspiracy involved bringing people in from the Mainland to carry out the robbery in Hong Kong. Fourthly, there were a number of persons involved in preparing to execute the robbery. Fifthly, all were armed, one of them with an imitation firearm. Each of these is an aggravating feature which takes the sentence beyond the parameters suggested by MO Kwong-sang.

31.The respondent points out that the 1st applicant, unlike the other persons involved, did not have a clear criminal record. We appreciate that. He has three previous criminal convictions, in Hong Kong at least, being one for burglary and another for robbery both in 1994 and one for unlawful remaining in Hong Kong in 1997, which, the timing suggests, was an offence which would have been committed shortly after his release from custody for the previous two offences.  Those convictions are not of sufficient number to warrant an increase in sentence following the well-known principles set out in HKSAR v CHAN Pui-chi [1998] 2 HKLRD 830.  The judge, too, would have been aware of those convictions and the fact that the remaining accused had clear criminal records.

32.The judge allowed what, with respect, in our view was an extremely generous reduction in sentence for the 1st applicant's "cooperation" with the police. That amounted, in all, to telling the police where the other males were to be found. We note that, at trial, the 1^st applicant challenged having passed on this information to the police. However, the fact remains that he must have done so and that, as a result, the police were able to locate and arrest the other males before any robbery could be carried out. In our view, that is deserving of a reduction of 6 months. Consequently the 1^st applicant is to undergo imprisonment for 8 years and 6 months.

33.The 3^rd applicant was sentenced to undergo a period of 7 years imprisonment on the conspiracy charge and 2 years imprisonment on the possession of offensive weapons charge, the sentences to be served consecutively to one another resulting in an aggregate sentence of 9 years. Whilst we have no disagreement with the overall sentence imposed by the judge we are of the view that, as indicated, the appropriate starting point on the conspiracy charge was one of 9 years imprisonment. Although possession of the offensive weapon was appropriately charged as a separate and distinct offence it was committed in pursuance and as a consequence of the conspiracy to rob: it was so much a part of the conspiracy that the sentence imposed should have been ordered to be served concurrently with the appropriate sentence imposed in respect of the conspiracy offence, which would have adequately reflected the overall criminality. 

34.Nothing that the 3^rd applicant has said to us persuades us that he is entitled to any reduction from the sentence imposed. As a matter of principle it is important that appropriate sentences be imposed: consequently, we set aside the sentence of 7 years imprisonment imposed on Count 1 and substitute therefor a period of 9 years imprisonment whilst, at the same time, directing that the sentence imposed on Count 5 be ordered to be served concurrently with that on Count 1. The overall sentence which he is to serve remains at 9 years imprisonment.

Ms Winsome Chan, Senior Public Prosecutor, Department of Justice, for Respondent.

Applicants in person, in regard to application against conviction.

Mr. Philip Ross, instructed by Messrs. Lo, Wong & Tsui, for the first applicant in regard to the application against sentence.

3^rd Applicant, in person, in regard to the application against sentence.