THE QUEEN v. TSANG KAM HING

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J U D G M E N T

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Sir Derek Cons, Ag. C.J. delivered the judgment of the Court:

1. Tsang Kam Hing ("the defendant") was convicted by a jury in August 1991 before Judge Leonard, as he then was, sitting as a judge of the High Court, of conspiracy to rob, of use of a firearm with intent to resist arrest and of possession of a firearm and ammunition with intent to commit an arrestable offence. He was sentenced to a total of 20 years' imprisonment. He now applies, with the assistance of counsel, for leave to appeal against both his convictions and sentences.

2. The offences took place on 15th June 1989. The defendant was observed by three police officers in Queen's Road Central to go with another man into two jewellery shops, where the two of them looked at the jewellery but purchased nothing. Their conduct aroused the suspicion of the officers who approached to investigate. No sooner had the officers announced their identities than the defendant drew a gun from his waistband, cocked it and fired at one of the constables. He ran away but was chased by the constables making use of a van at which the defendant also fired several shots.

3. The first ground of appeal is lengthy. It complains that "The learned judge failed to direct adequately on the issue of alibi, and in particular by his references to the alibi being unsupported, or that the Crown has cast doubt upon it, and in the absence of any specific direction to the jury to consider whether the alibi could reasonably be true, there is a grave risk that the jury was misled into thinking that the Appellant had to prove his alibi and/or that the Appellant failed to reach some requisite standard of proof and/or that the alibi was disproved if doubt was cast upon it." We may deal with this ground together with the second ground which complains that "The learned judge failed to sum up the defence fairly, placing undue and repetitive emphasis, to the prejudice of the Appellant, on the fact that the alibi evidence was unsupported, thus effectively failing to leave the issue fairly to the jury."

4. In dealing generally with the question of alibi the judge said:

" Now I turn to the question of alibi. As you know, the defence is one of alibi, which simply means that the defendant has called evidence to the effect that he was not at the scene of the crime when it was allegedly committed but somewhere else, that is to say, at home with his mother. But as the burden of proof is always on the prosecution, the defendant does not have to prove that he was somewhere else. On the contrary, once he raises the alibi it is for the prosecution to disprove the alibi. If you conclude that the alibi was false, that does not of itself entitle you to convict the defendant. The prosecution must still establish his guilt on the evidence beyond reasonable doubt."

Counsel does not complain as to this part of the summing up, but rather as to a later part when the judge dealt with the evidence of the defendant's mother who said that at the time of the incident he was at home with her. The judge dealt with her evidence, in some detail, and it is suggested that by the words he then chose the jury may have been misled into thinking that there was some level of burden upon the defendant. In particular counsel relies on the judge's repeated references to the fact that the mother's evidence was unsupported by any other evidence and on one sentence, when, referring to particular evidence which might have been taken to indicate that the defendant moved out of his family home some days earlier, the judge said:

"The Crown says that this cast doubt on the story told by Madam Lee that the defendant was living with her in June".

5. It is true that by his references to the mother's evidence being unsupported the judge must have made quite clear to the jury his doubts as to her veracity, but he had in the early part of his summing-up, as judges usually do, made it quite clear to the jury that his views were not necessarily to be accepted:

"If, during the course of my summing-up, I appear to you to be expressing my own personal opinion about the facts, then you must remember that it is your duty to reject what you think to be my personal opinion if it does not appeal to you, because you are the judges of the facts."

6. We have quoted the judge's own words with regard to alibi in general. He could of course have used other words, he could have spoken, for example, as has been suggested, to the effect that "members of the jury, if you don't believe the alibi but nevertheless think it may be true you should acquit the defendant". But in the other parts, and indeed in this part as well, of his summing-up he made quite clear to the jury the extent of the burden of proof upon the Crown, and the lack of any such burden upon the defendant. In our view the summing-up as regards alibi is not to be . faulted.

7. The third ground of appeal relates to the judge's comment on the defendant's failure to give evidence himself:

"Now, as you know, the defendant has chosen not to exercise his right to give evidence. The defendant is not obliged to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other. It does nothing to establish his guilt. On the other hand, it does nothing to rebut or contradict or explain the evidence put before you by the prosecution."

It is suggested that the last sentence, taken in conjunction with the fact that the mother had given evidence, is in some way unfair to the defendant. We cannot see how that is so.

8. The fourth ground arises from evidence which was called in support of the conspiracy to rob, i.e. that at the time the defendant and the other man went into the jewellery shops the other man was carrying a plastic bag; that he ran away from the scene, but was caught very swiftly in a building nearby; that concealed in the same building - in the tank of a water closet I think - was the plastic bag;inside the bag was a gun, probably similar to, but not the same gun as that which the defendant had and used; that the gun was cocked, with a bullet in the firing chamber.

9. The passage of which complaint is made in the summing-up is in these words:

"Now you may think, and it is a matter for you, that there is some significance in that fact. You may think that if one were just a courier delivering a weapon and ammunition, one would be rather unlikely to cock the gun, load a round into the chamber and carry it about in that condition, whereas if you were in a position where you were ready to carry out a robbery, you might well cock the gun and load a round into the chamber so that you are instantly ready to fire the gun."

It is suggested that these words amounted to a direction to the jury requiring them to find as a fact that when carried in Queen's Road Central the gun was already cocked and loaded. We do not read the words as carrying that direction. It seems to us that they are no more than a suggestion by the judge, made in answer to what we are told, was a suggestion by counsel to the jury, that the other man was just a courier taking the gun from place A to place B. We find no fault in the judge's comment.

10. The final ground of appeal is that having regard to all the circumstances of the case and, in particular, the poor opportunities that the police had for observation, and inconsistencies, contradictions and exaggerations in their evidence, the conviction was unsafe and unsatisfactory. It is conceded that the judge very fairly put to the jury the opportunities that the police had for observation and the inconsistencies, contradictions and exaggerations in their evidence; and that taken alone these matters could not render the convictions unsafe and unsatisfactory. It is suggested however that when taken in conjunction with the matters supporting the other grounds of appeal then that conclusion should be drawn.

We have already dealt with the other grounds of appeal and found that there is no merit in them. The fifth ground of appeal then naturally falls.

11. With regard to sentence, the defendant is now aged 28. He has a long record of dishonesty and violence. In the court below counsel was able to put virtually nothing forward on his behalf in mitigation. In this court counsel has helpfully drawn our attention to other appeals in which conduct of a broadly similar kind has been considered. Having regard to those we cannot possibly say that a total sentence of 20 years was manifestly excessive.

12. For these reasons both applications are refused.