Choi Nai-yin v. The Queen

CACC000881/1981

BETWEEN

Coram: Roberts, C. J., McMullin, V. P. & Li, J.A.

Date: 24 March 1982

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J U D G M E N T

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[on retrial, more severe sentence than that imposed in first trial is permissible in law.]

Roberts, C. J. :

1. CHOI Nai-yin was convicted of robbery by a district judge and sentenced to seven years' imprisonment. A single judge refused leave to appeal against conviction, but granted leave to appeal against sentence.

Appeal against conviction

2. The Crown case depended wholly upon his identification by two persons, who were present in a jewellers' shop at 987 king's Road, North Point about mid-day on the 17th July, 1980, when two Chinese men entered the premises both carrying knives.

3. According to P.W.1, LEUNG Hin-to, a partner in the jewellery shop, one of the intruders, whom he later identified as the appellant, came to the counter near P.W.1 and scooped a number of gold ornaments worth about $80,000 out of a showcase, while the other man stood near the entrance to the shop, threatening those present with a knife. Both men left, taking the ornaments with them.

4. Also present in the jewellery shop was P.W.2, SIT Kam-nui; she gave evidence to a similar effect, though in some details the sequence of events which she described did not match that of P.W.1.

5. An identification parade was held at North Point Police Station on the 21st July, four days' later. The trial judge found, and we see no reason to differ from his conclusion, that the parade was fairly and properly conducted.

6. The appellant was identified at that parade as one of the robbers, by P. W.1 without hesitation. P. W.2 identified him hesitantly by pointing at him and saying "seems to be No.8".

7. It is apparent from the evidence of P.W.1, upon whom the judge relied, that his observation of the appellant amounted to a series of glimpses of him and that such testimony must be approached with great caution.

8. The judge considers the evidence of identification with the utmost care. Having referred to the guidelines set out in R. v. Turnbull⁽¹⁾, he reminded himself of the special need for caution before it is safe to convict where this must depend on identification. He also mentions the danger that a mistaken witness can be convincing and that several witnesses can be wrong. He concludes that he can safely rely on the evidence of P.W.1

9. However, in view of discrepancies in the evidence of P.W.2, as compared with her earlier statement to the police, he decides that he should not give substantial weight to her testimony, though he adds -

"I find in it evidence capable of adding a modicum of weight or strength - however slight - to an otherwise independently safe identification."

10. The judge has directed himself correctly in law. He has had the opportunity of observing and assessing the credibility of the witnesses and we cannot say that he was wrong.

11. The appeal against conviction therefore fails.

Can higher sentence be imposed after second trial?

12. In 1981, the appellant was convicted of the same offence and was sentenced to five years' imprisonment. On appeal, that conviction was quashed and a retrial was ordered.

13. We have been informed that the reason for the quashing of the first conviction was that, due to some confusion as to the law governing the need for alibi notices to be given in the District Court, the Crown objected to alibi witnesses being called by the defendant, when he had not given an alibi  notice in respect of them.

14. Miss Toh submitted on his behalf that it is not permissible in law to impose a longer sentence after retrial than had been imposed at the first trial, relying upon HO Cheuk-fun⁽²⁾ in which the Full Court ruled -

"It would be manifestly unfair if the appellant should suffer as a result of the misdirection on the first trial by receiving a heavier sentence on the retrial."

15. No authorities are quoted in the judgment in that appeal. We think it must be assumed that the Court's attention was not drawn on that occasion to the sixth Schedule to the Criminal Procedure Ordinance, paragraph 2(1) of which reads, under the heading "Sentence on conviction at retrial" -

"2. (1) Where a person ordered to be retried is again convicted on retrial, the court before which he is convicted may pass in respect of the offence any sentence authorized by law."

The remainder of that schedule appears to follow exactly the terms of the Second Schedule to the English Criminal Appeal Act, 1968, save that the words "not being a sentence of greater severity than that passed on the original conviction", which appear at the end of the equivalent subparagraph of the English Schedule have been deleted from paragraph 2(1) of the Hong Kong Schedule. We must assume that the omission was deliberate and that it shows that the Legislature did not wish to limit the courts in Hong Kong with regard to sentence on a retrial as they are in England.

16. Thus, under English law, the court is forbidden to pass a longer sentence at the second trial than that which was imposed in the first trial. However, in Hong Kong it is open to the court of second trial to pass whatever sentence it feels justified, on the basis of the facts which have been proved before it. HO Cheuk - fun⁽²⁾ should be regarded as a decision reached per incuriam and should not be followed.

Factors in this appeal

17. The sentence of seven years' imprisonment imposed on this appellant is perhaps on the high side. If this were a first trial, however, we would not be prepared to say that it was so excessive that we should interfere with it. This was an armed incursion by two men, involving the taking of a substantial quantity of valuable goods. The appellant is a man with an appalling record, including five previous convictions for robbery. He has been sentenced since 1967 to a total of 15 years' imprisonment, on 7 different occasions. We should thus have had no difficulty in dismissing the appeal against sentence were it not for the factor that a higher sentence was imposed upon him after the second trial than after the first.

18. Not without some hesitation, we have decided to reduce the sentence from seven years to five years, which was the sentence imposed in the first trial. Not because there are any other merits in the appeal, save that, by virtue of Ho Cheuk-fun⁽²⁾ the law in Hong Kong was that a longer sentence could not be imposed after a retrial and that the appellant therefore had reason to expect that the sentence would be reduced from seven years to five.

19. In future, it will be open to the courts, where there is a retrial, to pass whatever sentence they feel is justified by the facts which emerge before them. If, on the second trial, a longer sentence is imposed than on the first, this court would not interfere unless, in accordance with general principle, we think that the second sentence is manifestly excessive in any event.

(1)    (1976) 3 All E. R. 549.

(2)    Crim. App. No.635/75.

Representation:

Esther Toh (D.L.A.) for Appellant.

I.H. Polson, S.C.C., for Respondent