The Queen v. Chan Chau-sang and Others

CACC000760/1982

IN THE COURT OF APPEAL

BETWEEN

________

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 2nd June 1983

__________

JUDGMENT

__________

Silke, J. A.:

1. On the 7th September 1981 at the Oi Man Commercial Centre in the Oi Man Estate there was an attempted robbery. That was perpetrated by persons, one of whom had a knife and others who carried firearms. These firearms were used.

2. There are before us two applicants who seek leave to appeal against conviction after trial upon the facts of  that robbery. We adjourned the matter of the application for leave to appeal against conviction of one of them, the 4th defendant at the trial, and we also adjourned the application for leave to appeal against sentence in respect of the 2nd defendant at trial on the 24th March 1983. Both the 2nd and 4th defendants had been indicted on counts of attempted robbery and of possession of arms.

3. The application by the 3rd applicant, who was the 5th defendant at the trial, for leave to appeal against his conviction was dealt with. He was indicted for the offence of attempted robbery only.

4. We shall refer from here on to the several applicants by their trial numbering.

5. The Crown's case in respect of the 5th defendant was that he was the driver of the "get-away" van. There was evidence that he was seen in the vicinity of the place of the robbery on the 4th September at a time when police surveillance was being carried out, that he was seen in the company of persons concerned with the robbery and that he was driving a van.

6. There was evidence that on the day of the robbery that same van was outside the Centre being driven by the 5th defendant and that he was there in order to facilitate the escape of the robbers.

7. The 5th defendant did not deny that he was at the scene on the 7th September but gave an innocent explanation for his presence. There were traces of glue upon his fingers as there were, be it noted, upon the fingers of other persons concerned with the robbery. In evidence his explanation for that was that the van which he was driving was a stolen one and he wished to avoid leaving his prints upon it.

8. The main ground of appeal argued by Mr. Pang, who appeared for the 5th defendant in this Court, was that the learned judge erred in that his defence had not been "adequately and fairly put to the jury".

9. In the course of his summing up the trial judge made reference to the case for the 5th defendant at several points. It is true that when he made reference to the glue being found on his fingers he said that it was for the purpose of avoiding fingerprints forming on the surfaces of the van but he did not make specific reference to the 5th defendant's case that the van was a stolen one.

10. He mentioned the 5th defendant's evidence that his association on the 4th September with those other persons was an innocent one and that his further association with them on the 7th September was also innocent. It is true, again, that he did not go into the details of this. But the issues were very clearly left to the jury in two passages in particular. As to the 7th September matter, the trial judge said:

"His evidence is to the effect that he was just driving the 4th accused to the Oi Man Commercial Complex in response to his request and that he has absolutely no knowledge whatsoever of what was to occur on the particular day."

11. As to the 4th September incident he suggested to the jury that they asked themselves this question in connection with the evidence:

"Why was he there on those two occasions and with exactly the same person driven to that complex and that person, on those two occasions, was photographed to be carrying a plastic bag, the same plastic bag on the two days in question?"

That was the issue the jury had to decide.

12. Emphasis upon the fact that the van was stolen could well have redounded to the discredit of the 5th defendant. The jury might well have asked themselves why should he be sitting in a stolen van next door to a Centre in which an armed robbery was taking place. In any event this matter, we would have thought, would have been clearly in the jury's mind having heard his evidence and they were reminded of the basic reason for the glue upon his fingers.

13. In the event we did not think the ground of appeal to have been made out. We considered that the defence was sufficiently put to the jury so that they were under no illusions as to the issues raised.

14. The application for leave to appeal was therefore refused.

15. The 4th defendant at trial, LUI Chi Wai, represented in this Court by Mr. Huggins, was seen by the surveillance team on the 4th September in the company of other defendants and carrying a plastic bag.

16. On the 7th September he was again seen also carrying the same bag. It was the evidence of Inspector Ying, who was in charge of the police team, that Chan Chau Sang, the 2nd defendant, was seen menacing a security guard either in or near to the Grand Harvest Watch and Jewellery Company in the Centre.

17. It was the evidence of Mr. Lee, the manager of the Jewellery Company, that a man holding a gun and wearing a sunshade came into the shop and shouted robbery. He was followed by another holding some thing like a gun and shortly afterwards a third man ran into the shop and ordered an employee to open a show case where there was some gold jewelry.

18. Before this order was obeyed the robbers were interrupted by the police and shots were fired.

19. Three men ran out of the shop and one, Chan Cheuk Hung, took up that which has been described as a "combat position" in the general area of the Centre. An exchange of fire took place between himself and the police. The police fired in all twenty six shots. Chan Cheuk Hung received wounds from which he died. There was, understandably, panic and confusion with bystanders fleeing for cover in all directions.

20. From the Inspector's evidence and that of the security guard the 2nd defendant had a gun. The 3rd defendant was holding a knife. Of the 4th defendant the Inspector says :

"As we have no place to hide ourselves, so at that time we noticed a man first come out - that is D4, I can say that - D4 comes out and runs away before we can make sure whether we should fire at him or fire at the man run away first. This is' the one D4."

21. He went on:

"D4 comes out from inside the Grand Harvest Jewellery Co."

22. Mr. Huggins makes the general point that the Inspector's evidence of who was where and when is somewhat confusing and is sufficiently unclear as not to denigrate from the 4th defendant's defence of disassociation of which more later. It is a point we bear in mind but the situation was not an easy one.

23. When the shoot out had finished Chan Cheuk Hung was mortally wounded, the 3rd defendant who had started to run away had fallen wounded, the 1st defendant and the 4th defendant who were seen running away were lost sight of. The 2nd defendant had disappeared in another direction via the staircase near the security office.

24. A little later at the Neighbourhood Police Unit the Inspector saw the 1st, 2nd, 4th and 5th defendants under arrest.

25. Mr. Hugggins now argues, having abandoned the rest, three main grounds. The first of these relates to the robbery and alleges a misdirection of law and fact by the trial judge - ground one. The next is the same ground but advanced on the arms possession count - ground six - and the third - ground seven - alleges a misdirection in law and relates solely to the arms count.

26. These grounds are:

27. Mr. Huggins submits in respect of his first and sixth grounds that one: there was a misdirection in fact and two: a misdirection in law - and this is really alternative to his ma n point - and he propounds a subtle argument that the evidence given by Inspector Ying was hearsay on the basis that he was going further than a mere identification required and that his subsequent evidence of a reaction by the 2nd and the 4th defendants was contrary to the law as it is set out in Christie^(l).

28. The sequence of the summing up was this: the trial judge had been dealing with the identification of the 2nd defendant by Inspector Ying and by others. Identification of all the defendants was an issue in  the case. He had said that he thought there to have been no evidence to indicate that Inspector Ying had ever seen the 2nd defendant before the 7th September.

29. Counsel then interrupted and told him there was such evidence. The trial judge went on:

"Now, his identification was made almost immediately after the arrest of the 2nd accused on the same day when you will remember when he appeared at the, I think, Oi Man Neighbourhood Policing Unit.  He went in and saw both the 2nd and the 4th accused and said, 'I identify them. These were the persons who had guns. And they have taken part in robbery.' That is what he said."

30. With the greatest respect to the trial judge it was not what Inspector Ying said.

31. The sequence of the Inspector's evidence was this:

32. Unfortunately this very proper question was not answered adequately for the evidence of the Inspector continues:

33. There was then led evidence of the clothing they were wearing. Later in the examination there occurred this passage.

34. Then he was asked did any of them react in any way but before he answered the question, and after Counsel at trial had conferred, there was a further series of questions and answers concerning what the Inspector actually did say in the Unit in the course of which it transpired that the 5th defendant was also present.

35. The "reaction" question was then asked.

36. We accept that the trial judge's directions were factually not correct on this aspect of the evidence. The "reaction" point was nowhere referred to in the summing up principally, we would have thought, because it was never the Crown's case that 4th defendant was in physical possession of a gun. This was made quite clear to the jury in other passages in the summing up and we assume that it was made equally clear in the submission of Counsel then appearing for the Crown.

37. Having said this we do not think it necessary on either count to go on to consider that which I shall call the Christie ⁽¹⁾ point. We note however one distinguishing feature between Christie^(l) and the present case. Here it was the evidence of the witness of that which he himself did and said and saw. In Christie^(l) the statements, the admissibility of which were in issue, were statements in evidence made by a Constable and by the mother of the boy as to what the boy said and as to Christie's reaction to it. It was not the evidence of the boy himself.

38. Dealing exclusively with the possession of arms count at this point it is necessary for us to go on to consider ground 7.

39. The passage in the summing up complained of reads:

40. With respect to the trial judge that direction was erroneous in law. If the jury did "find it to be so" that it was only when the guns were fired that knowledge of their existence came to the applicant when he would be entitled to be acquitted of possession - constructive or joint. It would have been open to the jury to find, on other evidence, that the applicant knew that guns were being carried by other participants in the offence  before ever they were fired. But if the jury based their finding of guilt on this direction alone, and we cannot say what were the reasons for the conclusions they reached, the conviction could not stand. The question of the proviso does not arise where a misdirection of this nature is concerned. Therefore on this ground alone, leaving aside the factual misdirection, we feel the conviction on the second count to be unsafe and unsatisfactory and it must be quashed.

41. Mr. Huggins has urged upon us that the effect of the factual misdirection is to take away from the 4th defendant his defence to the attempted robbery count.

42. That defence was succinctly set out by the trial judge in the following passage:

43. Mr. Huggins submits that if the jury were to accept the misdirection as to the apparent identification of D4 as a man with a gun then clearly it would follow that he was a participant in the robbery. Further he argues that even if, in the light of other evidence and the nature of the direction itself, we were to find the proviso applicable that we should not make use of it in view of the unclear evidence of Inspector Ying as to who did what in the course of the incident. Because if Inspector Ying were unclear as to who was where then the jury could not have been sure that the 4th defendant was really seen to run out of the shop. He reminds us that there were two persons wearing yellow shirts, D4 in a long-sleeved and D2 in a short-sleeved one. The 2nd defendant had however, as we have said, disappeared in another direction before the 4th defendant had emerged from the Centre leaving but one yellow shirt at the scene. He further reminds us that Inspector Ying was, not unnaturally, concentrating his attention upon the deceased who was firing both at him and generally at the police.

44. The direction, incorrect though it may have been, we think to have been a slip by the trial judge. It was, as we have said, made abundantly clear in other passages in the summing up that the Crown's case against applicant was one of joint or constructive - not actual possession of a gun.

45. There was clear evidence that the 4th defendant was seen associating, on the 4th September, with others concerned in the robbery. He had his yellow bag. There was clear evidence that he was seen hovering in the vicinity of the Centre on the 7th September again with his yellow bag. His presence there was not denied. There was evidence that he had arrived in the van with the 5th defendant; that he walked towards the Belgian Bank which was on the outside face of the Centre; that the 3rd defendant came out of the Centre and had a conversation with  the 4th defendant. The surveillance team saw the 3rd defendant to go back inside and they also saw the 1st defendant come out. It was   their evidence that the 1st defendant gave an "indication" to the 4th defendant and that they both then went inside the Centre the 1st defendant leading the way. Shortly after that the gunfire started.

46. This evidence, coupled with that of Inspector Ying as to the 4th defendant running out after the deceased - and by implication after the first shot had been fired - is strong meat.

47. There was evidence from the Government Chemist that the fingers of the 2nd defendant had protective glue on them as did those of the 5th defendant.

48. The 4th defendant's fingers were also examined and found to have a form of "plastic covering" upon them of which there was insufficient to provide a positive analysis.

49. Even had the jury been misled by the judge's factual slip and even if the "reaction" evidence should not have been before the jury there was more than ample evidence to justify their rejection of the defence of an innocent arrival at the scene and subsequent disassociation and to ground the conviction.

50. There has in our view been no miscarriage of justice and we would therefore apply the proviso and refuse the application for leave to appeal against conviction on the first count.

51. The applicant also sought leave to appeal against the sentences imposed upon him of 14 years on the first count and 3 years on the second count directed to run consecutively. We allowed Mr. Huggins to make submissions in respect of sentence to us upon the day of hearing and it was his point that these sentences should have been concurrent as both arose directly from the same incident.

52. The conviction upon the second count having been quashed the point no longer arises and he takes no point  as to the quantum of the sentence on the first count.

53. We see nothing wrong in the sentence imposed, indeed somewhat higher sentences had been upheld in cases not dissimilar to this since the imposition of this sentence.

54. The result therefore, in respect of the 4th defendant, is that the application for leave to appeal against conviction on count one is refused. The application for leave to appeal against conviction on the second count is granted, the hearing treated as the appeal and the appeal allowed, the conviction quashed and the sentence set aside. The appeal against the sentence on the first count is dismissed.

55. We are now dealing with the application for leave to appeal against sentence of Chan Chau Sang, the 2nd defendant at trial.

56. The sentences passed upon him were 14 years' imprisonment in respect of the first count - attempted robbery and 4 years' imprisonment in respect to the second count - possession of arms and ammunition. These sentences were directed to run consecutively thus arriving at the totality of 18 years. It is not necessary, I think, to reiterate the facts of this armed robbery which involved a shoot out between the police and the participants. They have been set out in the judgement just delivered.

57. The applicant has urged upon us that these sentences in their totality were too severe. He has made reference to a number of cases in which he said robberies occurred - armed robberies - and in which the sentences were lower.

58. The trial judge, in passing the sentences he did, made reference to the fact of this being an armed robbery in which guns were used and fired. He noted in respect of Chan Chau Sang that the pistol he had was a converted toy pistol. In passing sentence he considered the personal aspects and participation of each of the separate defendants. We think it worth making reference to those particular sentences.

59. The 1st defendant, who pleaded guilty to three counts - the third count relating to possession of arms at the time of his arrest the following day - was, upon that plea, sentenced to a totality of 17 years' imprisonment.

60. The 3rd defendant convicted of one count of attempted robbery - that is the man with a knife - was given a period of 13 years' imprisonment.

61. The 4th defendant with whom we have just dealt - Lui Chi Wai - was sentenced to a totality of 17 years' imprisonment which now, of course, becomes 14 as a result of the quashing of the conviction on second count.

62. The 5th defendant who has already been dealt with - To Sai So - who was the driver of the "get-away" van was sentenced to a period of 12 years' imprisonment.

63. In relation on to Lui Chi Wai, Mr. Huggins, who then appeared for him, referred us to Reg. v. French⁽²⁾ in the English Court of Appeal - the reasons being given by the Lord Chief Justice. It related to the bringing of two separate charges where there was an armed robbery - that is the robbery itself plus the possession of arms charge.

64. The legislation provides for an offence of carrying arms in the course of the robbery but that is not one with which we are directly concerned here.

65. The Lord Chief Justice thought it correct that two charges should be brought and we are in respectful agreement with him on that. He also thought it correct that two separate sentences should be passed. Again, we would be in agreement with him on that.

66. It is then of course a matter for the trial judge to decide whether or not those sentences should run consecutively or concurrently depending upon the totality he had in mind to cover the gravity of the overall offences.

67. The trial judge in this instant case made the sentences consecutive and the convictions were after a full trial.

68. We accept that the totality is high but we do not think the overall sentence to be in any way wrong or unjustified in the circumstances of this case.

69. We would therefore not disturb either the sentences themselves or the order that they run consecutively.

70. The application for leave to appeal against sentence is refused.

(1)     [1914] A.C. 545

(2)     (1982) L.S. Gaz. p. 535

Representation:

Applicant Chan Chau Sang in person.

A. Huggins, Esq. instructed by H.M. So & Co. for applicant Lui Chi Wai.

K.K. Pang, Esq. instructed by Messrs. Cheung, Chan & Chung for applicant To Sai So.

M. McMahon, Esq. for Crown/Respondent.