Luk Chin-ming and Others v. The Queen
|
CACC000853/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 853 OF 1972
----------------- Coram: Pickering, Trainor, JJ. Date of Judgment: 22nd June, 1973. ----------------- JUDGMENT ----------------- Pickering, J.: 1. Certain premises on the 5th floor of 73 Canton Road, Kowloon, are combined domestic and business premises, the business carried on there being that of a manufacturing jeweller. Shortly after midnight on the 27th of October last year, a group of men - probably numbering four - who had obtained admission to the premises by a trick, tied and blindfolded the occupants and disappeared with a variegated assortment of jewellery. It is alleged that amongst those men were the 1st and 2nd appellants and that the 3rd appellant was keeping watch down below. The throe were eventually apprehended and brought to trial, when the 1st appellant pleaded guilty to the robbery and the 2nd and 3rd appellants pleaded not guilty. The 1st appellant, whom the learned trial judge regarded as the ring-leader, was sentenced to 4 years' imprisonment and the 2nd and 3rd appellants each to 3 ½ years' imprisonment. The 1st appellant now appeals against his sentence and the 2nd and 3rd appellants appeal against conviction. The 1st and 3rd appellants are unrepresented whereas the 2nd appellant has the advantage of representation by Miss Leong, upon whose application this morning we granted leave to appeal out of time in respect of sentence also. 2. Dealing first with the appeals against conviction, it was Miss Leong's first ground of appeal that the learned trial judge had erred, in relying upon a cautioned statement made by the 2nd appellant, as evidence before the court. The basis of this submission was that when the witness who had taken the statement sought to put it in evidence there was an objection to it and thereafter evidence upon this issue of admissibility was heard. At the end of the case for the prosecution, the learned trial judge ruled the statement admissible, but the witness proffering the statement was not brought back to the witness-box formally to produce it. The statement had previously been marked as a provisional exhibit. 3. It is Miss Leong's contention that the statement was never properly before the court in that the judge, acting as judge and jury, had the statement before him as a judge but never received it in evidence as jury. This is an ingenious argument, but one which we think too artificial to be sustained. It is true that in the case of a trial before a jury, the argument as to the admissibility of the statement would have taken place in the absence of the jury and, following it's being ruled admissible had the witness not subsequently been brought back to the box formally to produce the document, the jury might well have been unaware of its existence. However, a District Court judge acting as both judge and jury is not required, figuratively, to remove his wig and remind himself that he is now the jury and as such has no knowledge of the statement. It has been remarked that if a person is capable of thinking about something which is inextricably mixed up with something else without thinking about the thing with which it is inextricably mixed up, then that person has a judicial mind. But a District Court judge, sitting as judge and jury, is not required to perform that particular trick, to jump through that particular judicial hoop, to the exclusion of common sense. We think this ground of appeal, though, as we have said, ingenious, is without merit. 4. The second ground of appeal advanced on behalf of the 2nd appellant was that the learned trial judge erred, in assuming as evidence, matters which could and should only have been assessed by expert evidence. The reference was to the manner in which a thumb print of the 2nd appellant had come to be upon the blade of a knife, admittedly a knife used in the course of the robbery for the purpose of intimidating the occupants of the premises. It was the 2nd appellant's explanation that he took the police to the place where the knives had been hidden; that these knives, all of which were sheathed, were then produced whereupon one of the police officers unsheathed one of them and pointed it at the 2nd appellant who tried to ward off the knife. And in the court below, according to the learned judge's notes, the appellant demonstrated the manner in which he warded it off and that demonstration indicated the blade being pulled across his fingers. As a result of that demonstration, the learned judge came to the conclusion that the thumb print could not have found its way on to the blade at that time and in that manner. It was the evidence of all the prosecution witnesses that at that time the knife never left the sheath. In his Reasons for Verdict, the learned judge does not indicate whether or not he found that as a fact, but even if he did not, this was not a matter necessitating expert evidence. Such evidence is, of course, indispensable in regard to the identification of a print, but as to whether a sliding movement across the fingers could result in a very clear print such as appears in the photographs exhibited at the trial, is a matter of common sense upon which the learned judge was as well-equipped to pronounce as anybody else and we find no merit in the second ground of appeal. 5. The third and final ground of appeal was that the learned trial judge failed to place any sufficient weight on the evidence adduced by the appellant in his defence. We have studied carefully the learned judge's Reasons for Verdict, and are of the opinion that he gave full consideration to all the evidence for and against the 2nd appellant. In addition, it is not trite to observe that he had the advantage - no less real for being the subject of frequent allusion in courts of appeal - of observing the demeanour of the witnesses. We are unable to agree with the contention contained in Ground (3) of the Grounds of Appeal, and it follows that the 2nd appellant's application for leave to appeal against conviction is dismissed. 6. So far as the 3rd appellant is concerned, he addressed us this morning at length and with some eloquence on his own behalf. The vast preponderance of what he had to say, however, consisted of nothing more than matters which had been advanced in the court below. The learned trial judge was entirely satisfied upon admissible evidence, including a confession by the 3rd appellant, of his guilt. There were ample grounds for that finding and no ground whatever for our interfering with it. The application for leave to appeal against conviction of the 3rd appellant is also dismissed. 7. Turning to the matter of sentence, in sentencing the 1st appellant, the learned trial judge observed that he was making allowance for the fact that the 1st appellant had pleaded guilty. Now, the 1st appellant received a sentence of 4 years' imprisonment, whereas the 2nd and 3rd appellants received 3 ½ years each. The reason for this differentiation was that the learned trial judge found that the 1st appellant had been the ring-leader in this robbery. We think it follows, however, that accepting that the learned trial judge did make some allowance for the plea of guilty, had there been no such plea and had all 3 pleaded not guilty, the 1st appellant would have been sentenced to something in excess of 4 years' imprisonment, possibly 4 ½, possibly 5. We are not wholly satisfied that his degree of culpability in this robbery was so very different from that of the 2nd and the 3rd appellants as to merit a differentiation, assuming a plea of not guilty, of 12 or 18 months, and accordingly his application for leave to appeal against sentence succeeds to the extent that his sentence of 4 years' imprisonment will be set aside and replaced by a sentence of 3 ½ years' imprisonment, which is the same sentence as that imposed on the 2nd and 3rd appellants. 8. So far as the sentence of 3 ½ years' imprisonment imposed upon the 2nd and 3rd appellants are concerned, we consider that they are appropriate and that no reduction is merited. There is no appeal against sentence by the 3rd appellant but the application for leave to appeal against sentence by the 2nd appellant must be refused. Representation: 1st and 3rd appellants in person Miss J. Leong (J. N. Smart & Co.) assigned for 2nd appellant Polson, C.C., for respondent. |