Chong Siu-leung and Others v. The Queen
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CACC000802/1978
Coram: Roberts, C.J., Huggins, J.A. and Cons, J. Date of Judgment: 15 June 1979 ----------------- JUDGMENT ----------------- Roberts, C.J.: 1. We have already dismissed the application of CHONG Siu Leung (the 1st Appellant) for leave to appeal against sentences of six years' imprisonment imposed on him in this case. 2. The second appellant, CHAN Tat Hung, was charged before Mr. Justice Zimmern with four counts of robbery, numbered Counts 1, 2, 3 and 4 in the indictment. On Counts 2 and 3 the Crown offered no evidence. On Counts 1 and 4, the second appellant was acquitted of robbery by 5 to 2 and convicted of the lesser offence of handling stolen goods by the same margin. 3. The third appellant, WONG Hang Tai, was originally charged with three counts of robbery, being Counts 1, 2 and 4 of the indictment. No evidence was offered by the Crown against WONG on Counts 2 and 3. On Count 1, he was acquitted of robbery unanimously but convicted of handling stolen goods by 5 to 2. 4. The second appellant CHAN seeks leave to appeal against sentence only not against his conviction. 5. The third appellant, WONG, earlier sought leave to appeal against sentence but subsequently filed a notice of abandonment of this application. However, he also sought leave to appeal against his conviction and this application has not been withdrawn. WONG Hang Tai - Appeal against conviction 6. Since only the third appellant (who was the third accused at the trial) has appealed against conviction it is necessary to deal in any detail only with the evidence on the first Count, the only one on which the third appellant was convicted. 7. The statement of facts on this Count, agreed before the trial between the Crown and counsel for the defence, was as follows:-
8. The particulars of offence in Count 1 in the indictment, however, do not include the last two items referred in the agreed statement of facts - i.e. one car key and one pen holder set. 9. It is clear that, throughout the trial, counsel for the Crown, counsel representing the accused and the trial judge overlooked the fact that there was a discrepancy between the list of items contained in the indictment and the list contained in the agreed statement of facts. 10. There was no dispute at the trial (a) that Mrs. LI was robbed on the 19th August, 1977, (b) that some of the goods stolen from her were later identified by her, (c) that some of these stolen goods were discovered on 3rd November in the premises occupied by the three persons charged in Count 1. 11. The main issue at the trial was where, in the premises occupied by the three accused, the particular items were discovered. As against the third appellant, the prosecution evidence was that both the clock and the pen holder, to which I have already referred, were found in his room at 328 Jaffe Road. 12. The second prosecution witness (D.C. 1034 LAI Chiu-hoi), testified that he carried out a search of the third appellant's room on 3rd November, 1977. Among the articles which he found in that room was a stone clock, which he saw at the head of the bed on a shelf. He also found in that room, near the end of the bed, near the window, a metal pen holder set. 13. The witness, under cross-examination, agreed that he might have made a mistake as to when he seized the clock and the pen holder and that he might have done so a week later on 10th November, when he returned to the flat. But he insisted that he had seen the two articles on the 3rd November in the third appellant's room as he had described. 14. The third appellant's defence, which was dealt with by the judge at p.96 of the record, was to the effect that (a) the clock was never in his room, (b) it belonged to the first defendant, (c) he had seen it in the first defendant's room after the latter had moved into the premises in September, 1977 and later on the top of the refrigerator in the corridor, (d) he did not know where the first accused got it nor that it had been stolen. 15. The second accused, however, a co-tenant of the premises, gave evidence that he had never seen the clock before, whether on top of the refrigerator or anywhere else, though had it been on top of the refrigerator it is unlikely that he would not have seen it. 16. With regard to the pen holder, the third accused gave evidence that (a) he had never seen it until the police searched the premises for the second time, when he saw a policeman holding it, (b) it was never in his room and (c) it was only when he asked the first accused about it that the latter told him it was his, (i.e. the first accused's). Thus, there was a complete denial by the third accused that either the clock or the pen set was ever in his room - or that he knew that either had been stolen. The first accused, who pleaded guilty to robbery on this Count (and was sentenced to 6 years' imprisonment), gave evidence that neither the second nor third accused took part in the robbery at Mrs. LI's premises on the 19th August. He admitted that he had stolen the clock and pen holder and said that he kept the clock in his room till a week before his arrest, when he put it on the refrigerator in the corridor. He put the pen holder on a cupboard in the kitchen. He did not give either to the third accused, nor did he tell anyone that either article had been obtained by robbery. It is clear, by their verdict, that the jury disbelieved the first accused. 17. The main point taken by counsel for the third appellant was that the failure of the judge to distinguish in his summing-up, in relation to the first Count, between the stolen articles found in the Jaffe Road premises and those listed in the indictment may well have misled the jury into believing that the third appellant had been charged with the robbery of both the clock and pen holder whereas, in fact, he had only been charged with the robbery of the clock. Therefore, she submitted, the conviction should be quashed. 18. The first question is whether, if several articles are stolen at the same time, the Crown is obliged to include all of them in the particulars of an indictment for robbery of those articles, or may make a selection? We are satisfied that it is within the discretion of the Crown to decide what to include in an indictment. 19. Secondly, may the Crown adduce evidence in a charge of robbery which tends to show that the accused was guilty of robbery not only of articles listed in the indictment but of articles not so listed? 20. In this instance, the defendant's counsel had agreed to a statement of facts which included an admission that six articles stolen from Mrs. LI were discovered in premises occupied by the three accused. There is, however, no admission that they were found in the possession of any of the accused. 21. The admission of the agreed statement in evidence cannot, even if the list of articles found in the flat does not agree with the articles listed in the indictment, have prejudiced the third accused, since the first accused gave evidence to the effect that he stole all six articles and that they were on the premises, and under his control. 22. A reading of the judge's summing-up leaves no doubt that a distinction was not drawn by him at that stage, nor by anyone during the trial, between goods found in the flat and goods charged in the indictment. So far as the third accused is concerned, the clock, which was so charged, and the pen holder, which was not, are treated in the same way. The jury must, in our view, have been left with the impression that they could properly convict the third accused of robbery, or of the lesser charge of handling, if they were satisfied of his possession of either the clock or the pen holder. We have therefore examined the evidence to see whether the jury, if the distinction to which I have referred had been drawn in the summing-up, would necessarily have come to the same conclusion. 23. The Crown evidence in relation to the clock, which was listed in the indictment, and the pen holder which was not, can be summarized as proof of theft, identification by the owner and possession by the third accused two and a half months' later. 24. The third accused's defence in relation to both articles was, in essence, that he did not know they were stolen, that he thought they belonged to the first accused and that they had never been in his room. He had never seen the pen holder till he saw a police officer with it, though he had previously seen the clock on a refrigerator in the corridor of the flat. 25. On this evidence, could the jury, taking into account the terms in which they were directed, have convicted because they were satisfied that the third accused had been in possession only of the pen holder and not of the clock? If this is reasonably possible, it would be unsafe to uphold his conviction. 26. To answer this question, it is necessary to consider whether the jury must have accepted the prosecution evidence. If they were not prepared to disbelieve the third accused's explanation as to either of the items, that would of necessity mean that they were not satisfied beyond reasonable doubt that the police witnesses were telling the truth. 27. The prosecution evidence as to both items was identical in effect. If the jury thought that the police officer concerned might be lying as to one, they could hardly have been satisfied beyond reasonable doubt that he was not lying as to the other. 28. That leaves the possibility that the jury might have thought the police officer was mistaken as to one or the other. In our view, this is a case where the possibility of a mistake can safely be ignored. Either the police officer found both items in the third accused's room or he could not safely be believed at all. 29. Basically, the defence as to both items was the same, namely that they were not in the third accused's possession at all and that he did not know they were stolen. 30. By virtue of their verdict, the jury must have disbelieved the third accused in relation to either the pen holder or the clock. This disbelief necessarily involves a rejection of whatever evidence is applicable to both. Thus they must have disbelieved the first accused's evidence that he had stolen the articles but not handed them to the third accused. They must have rejected the third accused's evidence that he did not know the goods were stolen, that he had never had possession of either of them and that they had never been in his room where the prosecution says they were found. 31. The third accused gave evidence that he had seen the clock on a refrigerator in the corridor, but this is no more than an admission that he had seen it and does not really add to his denial in relation to that item. 32. It is true that the first accused testified that he himself had put the clock on the refrigerator and that the third accused did not know it was stolen. That evidence also had to be disbelieved before the jury could reject the defence as to the clock. We think it must have been disbelieved. 33. Consequently, we are satisfied that although there was a material irregularity in the course of the trial, there has been no miscarriage of justice. 34. It is also submitted on behalf of the third appellant that the trial judge had not sufficiently warned the jury that each count and the evidence against each accused must be separately considered. The judge concluded his summing-up in the following terms:-
35. Certainly, this was a short direction on the point but in our view it was an adequate one and certainly appears to have been effective, as demonstrated by the manner in which the jury returned its verdicts. 36. For these reasons, we refuse the third appellant leave to appeal against conviction. CHAN Tat Hung (Appeal against sentence) 37. The second appellant, CHAN, was born in 1952. He had two previous convictions, one for membership of a triad society, for which he was put on probation, and one for robbery in November 1973, for which he was sentenced to four years' imprisonment. 38. This would have meant his release from prison about July 1976. In his judgment at page 81, the Judge makes a slip by saying that the second appellant had been sentenced to six years, but we do not think that this is a material mistake such as would affect the proper penalty to be imposed on the second appellant for the two offences of handling of which he was convicted. 39. In view of his record, we do not feel a sentence of three years' imprisonment concurrent on each of the two counts on which he was convicted is excessive and therefore refuse him leave to appeal against sentence. Representation: Miss J. Leong (D.L.A.) for 2nd appellant Miss J. Leong (T.Y. Lee & Co.) for 3rd appellant Dick for crown |