The Queen v. Siu Cheung
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CACC000993/1983
BETWEEN
______ Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A. Date: 29th May, 1984 __________ JUDGMENT __________ McMullin, V.-P. : 1. The applicant Siu Cheung was convicted by a jury upon a count of robbery and upon a second count, of an offence of being carried in a conveyance taken without authority under s.14(1) of the Theft Ordinance. 2. On the 1st of November 1980, at about 3:45 p.m., a robbery was carried out on the premises of the Mok Sang Kee Gold & Jewellery Shop, at No. 191, G/F, Queen's Road Central. A number of men took part. Mr. Mok Sang, the proprietor, told the court that four men entered the shop, two of them were carrying axes and one was wielding a pistol. Another stood at the door keeping watch. His son described seeing only tyro men. An employee in the shop, a Mr. Fung, gave evidence similar to that given by the proprietor. 3. A showcase containing a quantity of gold ornaments was broken by the men with the axes, and one of them emptied a quantity of the gold ornaments into a bag which he was carrying. At about that time, some members of the staff managed to set off an alarm and the robbers took flight taking with them the valuables which had been extracted from the showcase. 4. They escaped in a get-away car which had been parked outside the shop during the robbery. The departure of the car was seen by a young woman, Kwok Mei-oi, who was working in a shop on the other side of the street and who had actually seen the robbery taking place within the premises of the Mok Sang Jewelry shop. 5. The get-away car, a green four-door Sedan, bearing the registered number 3235, made its way through traffic, heading westward along Bonham Strand, and was next seen about half a mile away by a young woman, Lai Sau-chun, who was working in an electrical shop at No. 95, Queen's Road West. She told the court that she had seen this car parked at an unusual angle to the curb with its rear doors open. At the moment when she first observed it she had also seen five men running along the road from the direction of this motor car and saw them turning into a side street off Queen's Road West. She said that she had not seen them actually getting out of the car but formed the opinion that they had done so because the car was standing in this unusual position with the doors open and the engine running. They were about 30 feet away from it when she first saw them. 6. This witness was the only witness to mention five persons in connexion with the motor car. The other witnesses dealing with the robbery itself and its immediate sequel described the numbers variously. Mr. Mok said four, his son said three, his employee said four, Miss Kwok said two in the actual robbery and four persons in the motor car. The value of the stolen property was approximately half a million Hong Kong Dollars. 7. Subsequently, four men were arrested and charged with these offences and they pleaded guilty. Two years later, on the 21st of November, 1982, the present applicant was arrested in connexion with some other matter. Presumably the file on the present case had not been closed and there was in police possession information concerning the get-away car which was of primary importance in respect of the case made against the present applicant. At the trial, it was satisfactorily established that this car had been stolen at some time between the night of the 27th of October 1980 and the morning of the following day. It was the property of a Mr Chan Ping who told the court that the registration number 3235 was a false number, the proper number of his car being BB 4660. The car was found four days later, on the afternoon of the robbery, by a police officer in the position described by Miss Lai on Queen's Road West. Several gold rings were discovered within it which were later identified by Mr. Mok Sang as part of the proceeds of the robbery. 8. The police investigations included the lifting of two palm prints, one from the outer surface of the boot and one from the inner surface of the rear near window. Prints were taken from the lit applicant while he was in police custody which, upon examination, turned out to be identical with those removed from the care. This evidence was in effect the basis of the case against him. 9. The Crown also relies however upon certain material contained in several statements made by the defendant while in police custody. There were four such statements taken from him between the 1st of December, 1982 and the 6th of December 1982. In none of these statements did the defendant make any admission to having been a party to the robbery or to the use of a stolen motor car. The Crown relied, however, on the fact that when he gave a statement on the 2nd of December, and was apprised of the fact that the police suspected him of being connected with this robbery, he was asked whether he had ever driven or been driven in a car with either of the registered numbers associated with the get-away car. He denied that he had had anything to do with either vehicle. In that statement he had made an admission to knowing one of the persons who had pleaded guilty, Law Ka-wai, also known as "Tall Man Wai". 10. On the 6th of December when the last statement was taken from him, the police had by then established that the palm prints taken from the car were his. When he was apprised of this fact, he said at first that he could not account for it, but later in the same statement he went on to say "I can't explain it. But after my arrival from the mainland China in 1980, I always have tea with Law Ka-wai whose alias is Tall Man Wai in Sun Hing Restaurant, Nathan Road. Tall Man Wai had introduced some men to me, and we had made pleasure rides in private cars for about 10 odd times, there were four to five cars used. I can remember Law Ka-wai was with us in every pleasure ride. The men in the car were not always the same. I can't remember their names. It is possible that the car I took may be used by them for robbery. Therefore, I believe that my finger print was left on the car under such condition." He also said that these joyrides would have taken place sometime in October or November 1980. 11. The applicant did not give evidence at the trial and in the end the defence relied upon this explanation taken together with the fact that there had been some four to five days between the theft of the motor car and the carrying out of the robbery during which the palm print, according to the rather confused evidence of the fingerprint expert called by the Crown, could have been placed in the position in which they were found. 12. The Crown in turn relied upon the fact that at the outset the applicant had simply denied having had any connexion with these cars, and had only given this tentative explanation as to how his palm prints came to be upon the get-away car, when confronted with the palm print evidence. 13. The Crown had, however, set out upon the trial with higher expectations than that. In her opening address, Miss Crebbin, who appeared for the Crown at the trial, told the jury that four men had been arrested and charged with the robbery and had pleaded guilty. She told them that two of those men would give evidence for the Crown and would in fact identify him as the man with the gun. In due course, those two witnesses, Wong Wai-kin and Shek Ching-tin were called for the prosecution. Each, in turn, while admitting that he had pleaded guilty to the robbery, refused to testify against the applicant. At the end of the trial and after the discharge of the jury, they were dealt with by the judge and received additional sentences of imprisonment for contempt. 14. At the trial, Mr. Niamatullah who appeared for the applicant, submitted that there was no case for his client to answer. This was overruled and Counsel then made their final addresses. 15. Upon the appeal, Mr. Niamatullah makes it his primary ground of objection that the Judge should not have rejected the submission of No Case. We did not however call upon the Crown to answer under this ground. The similarity of the fingerprint situation in Tung Yuk-tin v. The Queen [1980] H.K.L.R. 140, upon which Mr. Niamatullah relied, and in which a similar point succeeded upon appeal, is not sufficient to make it a compelling authority in the present case since the matter there turned upon the raising of a presumption under the Dangerous Drugs Ordinance and the special wording of s.45 of the Ordinance relating to the manufacture of dangerous drugs. 16. The second ground of appeal, and some nine numbered sub-paragraphs thereunder, raise in effect a single point which has caused us concern. 17. The substance of the complaint is that the Judge did not preserve a due and proper balance in directing the jury but, on the contrary, underlined the evidence for the prosecution with an emphasis beyond anything attributable to prosecuting counsel, while failing to draw to the jury's attention points favourable to the defences. We are, that is to say, yet again called upon to consider the delicate and important question of balance and fairness in a Summing-up. We are satisfied that the proper approach is to regard the Summing-up as a whole. 18. Mr. Niamatullah, relying on Reg. v. Bracewell [1978] 68 Cr. App. Rep. 99, asks us to say that even if no one of the several points which he makes in this regard would of itself be sufficient to upset the conviction, the cumulative effect is such that we ought to be persuaded that the substance of a fair trial was denied to his client. 19. It may be said at once that the Summing-up as a whole does convey that the distinct impression that the Judge himself had little doubt as to the guilt of the defendant, notwithstanding that at the outset, and in very positive terms, he made it clear to the jury that the facts were for them and that they should not let themselves be influenced by any opinion expressed thereon by him, simply because the opinion was that of the Judge. 20. As this court noted in Hon Hoi-way and another v. The Queen, Cr. App. 663 of 1981, strong facts may justify strong comment by a trial Judge, but ultimately the question is one of balance and fairness. In the same case, we invoked the useful principle suggested by Woodward, C.J. in the West Indies case of Mills v. Games [1963] 6 W.I.R. 418, viz.: "Was the verdict the result of persuasion by the Judge rather than persuasion by the facts?" 21. The very few cases on record in which a Court of Appeal has upset a conviction by a jury on the ground of excessive comment by the Judge show how strong such comment must be before an Appellate Court will feel obliged to interfere. 22. Looked at in one way, this was a strong case. Palm prints of the defendant are found on the car proved to have been used in the robbery and the applicant has not chosen to give an account of this incriminating evidence to the Court of trial. But an explanation is to be found in the Crown's own evidence which included the several statements made by the defendant to the police after his arrest. 23. What counsel for the applicant now relies on in this regard is the contrast between the way in which counsel for the Crown put the Crown's case and how that case was represented to the jury by the Judge. 24. Undoubtedly Miss Crebbin was suggesting that the jury ought not to believe the defendant's explanation and she did contrast his "categorical" denial on the 2nd of December of having had anything to do with either of the cars covered by the two registration numbers put to him with his subsequent tentative explanation on the 6th of December when the identification of his palm prints was made known to him. She put it that the jury might find it "a little strange" that he would at first be so definite in his denial concerning an event two years earlier, rather than simply saying that he could not remember, and that he would subsequently be so specific in identifying October and November 1980 as the months in which he had been driven in various cars by Law Ka-wai. That was as far as her comment went. It was rightly directed to the question the jury had to decide - Is this explanation of the palm print the truth? 25. In dealing with these statements, however, the Judge put it to the jury that the prosecutor was saying that the applicant had been caught out in a categorical lie. Two vigorously critical pages of typescript are devoted to this matter and they conclude with the words: "The Crown says that this time the accused knew that the game was up as far as being in the car was concerned and that it is only then that he had made an admission to being in it." This went beyond what Crown Counsel actually said, not only as to the more emphatic nature of the language used, but also as a gloss which altered the substance of what had been put by her to the jury, for, where Counsel had put it that the categorical nature of the initial denial was something that the jury must consider in deciding whether the ultimate explanation was the truth, the Judge represents her case as being that the initial denial had been established as a "categoric lie". He then went on to give elaborate and perfectly correct directions as to how they should form a proper estimate of the significance of such lies. 26. The applicant's denial of having had any connexion with the car used in the robbery, was shown to be wrong, but it was not ex facie necessarily a lie, though it would necessarily be regarded as such by the jury, once they had rejected his explanation. The jury might well have understood what was said to them at that point as a direction to consider the worth of the defendant's explanation in the light of an established untruth. That might have been a proper approach had the car been, for example, of a distinctive character and had the applicant been quizzed about it a matter of days only after the event. The pattern of his statements would then have borne the obvious imprint of falsehood. But an innocent man might well deny any connexion with a car used in a robbery two years earlier without considering the possibility of an innocent connexion with it. This said, it should be added that the Judge did later leave it to the jury to consider whether or not the applicant had lied in the first of these two statements. 27. The next point turns upon the fact, referred to above, that Miss Crebbin told the jury that two of the men who had pleaded guilty would give evidence and identify the applicant as the man with the gun. The Judge firmly and clearly warned the jury not to speculate as to what these witnesses might have said, had they given evidence for the Crown. Mr. Niamatullah complains that the Judge did not then go on to warn them against using the fact that four men, including the two recusant witnesses, had pleaded guilty to the charges as evidence of the wilt of the applicant. Clearly, that ought to have been done, but on its own, this oversight would not be enough to call the propriety of the conviction into question, although such a warning was especially desirable in view of the fact that one of the robbers, Tall Man Wai, was a person who was known to the applicant who admitted to having been in his company on several occasions about the time of the offence. 28. Next, it is said that the Judge erred in putting forward a theory which had not been suggested by the prosecutor and was not a part of the prosecution's case. It is said that the intention and effect of this was to fortify the evidence linking the applicant's palmprint to the time and place of the offence. He asked the jury to consider whether they thought it would be possible or likely that a person being innocently carried in a car upon a joy ride, would have left palmprints on the car in the positions in which these prints - and in particular the print upon the window - had been found. He then asked them to consider whether, on the contrary, the position of the palmprint on the window could better be accounted for by a sudden and panicky evacuation of the car in the course of which the applicant had used one hand to unlatch the door and the other to push it open. 29. This is scarcely the invention of a new theory. In her closing address, counsel for the Crown had herself suggested that the palmprint on the rear window had been put there while the defendant was escaping from the car. At most, it can be said that these directions explore and underline the area of inference in favour of the prosecution more graphically and emphatically than the prosecutor felt inclined to do. Also the manner in which these directions are couched convey the impression that the Judge himself clearly believed the latter and not the former explanation. It is the fact however that the palmprint was a right hand palmprint and it was found at the "trailing" edge of the rear window. It might be thought that the maneouvre suggested by the Judge was rather less likely than had the palmprint been a left hand palmprint. 30. A more important point arising from these directions on the palmprints relates once again to the recusant witnesses. It was evident from counsel's opening that the Crown was relying upon these witnesses to say that the applicant was the man who was armed with a gun in the course of the robbery. Another witness for the Crown, Miss Kwok Mei-oi, described how that man and another made off with the gold ornament. She then went on to say that they got into the car and the man with the gun got into the seat beside the driver's seat. The car then drove off and she became aware for the first time that there was a driver in the car and, as it drove off, she could see that there were two men in the rear. She was quite positive that the man with the gun had got in beside the driver. 31. Although the jury had been properly warned not to speculate on what Wong and Shek might have said, it was nevertheless the Crown's case that the applicant was the man with the gun. If that had been the case, then clearly the palmprint could not have been impressed upon the window at the moment of escapee. Since the whole substance of the defence was that the palmprint must have been applied upon an innocent occasion, one might have expected that this aspect of the matter would have been drawn to the jury's attention in the interest of preserving a balance between the inferential possibilities open to the defence upon the evidence pari passu with those available to the prosecution. It may very well be that the jury appreciated the point in any case, but the absence of some such reminder lends some support to Counsel's contention that the advocacy of the summing-up was wanting in balance. 32. In Hon Hoi-wah and another v. The Queen, we pointed out that it is not necessarily wrong for a Judgetto venture into advocacy where strong facts support it and where he deems it necessary to repair some want in the performance of counsel. But he must be careful to be as zealous in this regard for the defence as for the prosecution and he must not lose sight of the fact that, however firm and full his disclaimer in relation to expressions of his opinion on questions of fact, his special position and the finality of his address are nevertheless likely to leave a strong impression in the minds of the jury. 33. The next point concerns the evidence relating to the numbers of persons involved in the events. Dealing with this evidence, the Judge correctly pointed out that there were various accounts. Of all the proseuction witnesses, only Miss Lai said that she had seen five men. Turning to the evidence of Miss Kwok Mei-oi who had told the court that she had seen two men in the shop and ultimately four in the car, the Judge said:
No doubt that is so, but in the context of the present complaints that was a particularly unfortunate comment, because it plainly mis-states the evidence of the witness. In her evidence-in-chief, she had said that she saw four men in the care. In cross-examination, she was carefully taken through her recollection of the numbers of persons she had seen, firstly in the shop and later in the car. She agreed that she had had a very good opportunity of seeing how many there were in the car because it had been stuck in slow-moving traffic outside her place of work. The final question and answer in cross-examination go as follows:
Mr. Niamatullah in his final address had emphasized this evidence and had asked the jury to conclude that if it was correct it was of great importance to his client because of the fact - known to the jury - that four men had already pleaded guilty to the offences. Left to consider the evidence as it stood, without this mistaken analysis, it may very well be that the jury would in any event have preferred the evidence of Miss Lai and would have disregarded that of Miss Kwok on the question of numbers. As the Judge, shortly after this, was careful to point out it would be unlikely that a get-away car would be left unoccupied with its engine running, while the robbers carried out their raids. Nevertheless (to resort to a term much employed at the trial) the answer given by Miss Kwok might fairly be described as a "categorical" acquiescence in the proposition put to her by counsel. Yet, not only were the jury not reminded of that, but were, on the contrary, given a reassurance which contradicted the evidence. 34. While it cannot be said that the Summing-up amounted to "a whole speech for the prosecution" (the touchstone for appellate interference suggested in R. v. Blockley [1963] C.L.R. 443) - and indeed Mr. Niamatullah has not ventured to press his criticism so far - these several complaints are of sufficient substance to oblige us to say that, especially as contrasted with the address for the Crown, there was a measure of advocacy for the prosecution which was not tempered by a similar concern to have the defence - such as it was - equally fully displayed for the jury's consideration. 35. Even so, we would not on that score alone have said that the applicant had thereby been deprived the substance of a fair trial. But there is a final consideration which, taken together with what has already been said, has persuaded us that these convictions ought not to stand. 36. The jury, having deliberated for three hours, announced that they had reached a majority verdict of five to two on the second count but that they wished to have further directions as to the robbery charge. The Judge, quite properly, received the verdict on the second count. He then went on to say:
To this, the Foreman replied:
At this point, nothing more had been said by the Foreman as to what troubled the jury in relation to the robbery charge, nor did the Judge enquire of the Foreman what was the nature of the directions which the jury were seeking. Instead, he commended them once more to their deliberations in the following way:
37. An hour later, the jury returned a verdict of Guilty by a majority of five to two on the robbery charge. At no time, so far as the record goes, were they told that they should inform the court if they could not achieve a majority of at least five to two, and that, if they could not do so, they must announce their disagreement. 38. The Crown's case on the charge under the Theft Ordinance was that if the applicant had been a party to the robbery he must necessarily have known that he was escaping from it in a stolen motor car. Having shown that they were satisfied to the required degree that he was aware that the car was a stolen car, while yet being unable to find that he was a party to the robbery, it seems very likely that the jury did require some further directions as to the relationship between these charges and the bearing of the Crown's evidence upon them. 39. At all events, we cannot be sure that the jury were merely announcing an inability to agree and were merely enquiring as to what the next step must be in view of that fact, which is the interpretation Mr. Frank Wong for the Crown seeks to give to these passages. 40. Whatever the jury may have thought of the defence case, it had clearly given them sufficient pause to dissociate the two charges in a manner which did not follow the prosecution line. A confusion of some kind existed, and its nature was never clarified. In the circumstances we do not consider that these verdicts can safely stand. The applicant's appeal is allowed, the convictions quashed and the sentences are set aside. Representation: A.M. Niamatullah (D.L.A.) assigned for the Applicant. Frank Wong for Respondent/Crown. |