THE QUEEN v. HO CHI KIN AND ANOTHER

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JUDGMENT

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McMullin, V.-P. :

1. The applicants were convicted in the High Court of robbery. The facts as led by the Crown are briefly as follows.

2. At about 9 p.m. on the 12th of May, Mr. Tsui the proprietor of the Official Time and Watch Company was about to close shop. Two men came in, ostensibly as customers. One of them began to examine the watches and one of the clocks which were on display. Mr. Tsui himself was in the office which, it appears, has a door which locks with an electric lock operated by a button, but he could see into the shop through a glass panel. He saw his assistants attending to these two apparent customers. This went on for 20 to 30 minutes. He was becoming a little irritated at the delay when one of his assistants asked him to go and fetch a box for one of the clocks from a cockloft which, it appears, is cited somewhere above his office. He did so and when he came down he opened the door of his office because somebody outside, he thought that it was one of his assistants, asked him to open it.

3. He was confronted by a man holding what appeared to be a pistol. This man and the other man then combined together to tie up the two shop assistants and Mr. Tsui with wire. Mr. Tsui was also blindfolded but shortly afterwards one of the men pulled up the blindfold, dragged him up by the hair and asked him where the keys for the showcases were. Throughout this period a series of threats had been uttered by the men relating to shooting or chopping the victims if they resisted.

4. He showed this man, whom he later identified as the first applicant, where the keys of the showcases were. He was then pushed back to his original position and a short time after that the robbers made off warning the bound men not to make any alarm for 30 minutes at least after they had left.

5. Mr. Tsui and his assistants managed to free themselves and the police were summoned. Upon taking stock it appeared that about $450,000 worth of property, mainly watches, had been taken.

6. The matter was then investigated and subsequently these two applicants were arrested. Oh the 11th of October at a identity parade the proprietor, Mr. Tsui, identified them both.

7. The applicants had both been tried in the High Court upon the same charge on a previous occasion and had been convicted of the offence. They appealed and succeeded upon appeal. The convictions were quashed and the sentences set aside on the basis of a misdirection by the trial judge. A retrial was ordered.

8. On both occasions, the applicants gave evidence and at each trial substantially the same evidence was led on behalf of the Crown.

9. Throughout both trials the case for the applicants was that this was not a genuine robbery at all. It was their story that they had been approached by a person called Ah Chung, not long before the 12th of May, who had reported to them that the proprietor of the Official Time Watch Company, Mr. Tsui, because he was not doing well in business, wished to stage a robbery for the purpose of claiming insurance money.

10. The evidence of both applicants was substantially to the same effect. After a couple of preliminary meetings with Ah Chung, they were shown the premises and on the day of the incident the first defendant purchased what was, according to him, a rather realistic looking toy pistol. They had carried out the robbery in much the way it was described by the prosecution witnesses but their case was, of course, that this had been throughout a collusive matter on the part of Mr. Tsui.

11. Subsequent to their conviction upon these charges they appealed again. When the matter was first before us in June we adjourned the hearing of the appeal at the instance of both applicants on the basis of an allegation then made that investigations by the insurance company into the affairs of Mr. Tsui's company were proceeding and might uncover significant evidence which might assist them in the presentation of their appeals.

12. On inquiry this morning from the first defendant it has been ascertained that nothing further which might have been helpful to the applicants has transpired since the last occasion when they were before the court.

13. It may be said that at the trial the issue as to the possibility of this having been a collusive crime was extensively and exhaustively canvassed before the jury.

14. At the second trial counsel went once more into questions relating to the alleged non-profitability of the Official Time Watch Company and the jury were also made aware that there had been two previous occasions when the same premises had been robbed. On the first occasion the insurance company, it appears, paid in full for the property taken but on the second occasion there was no such payment. This was, apparently, upon the basis that the security arrangements in the shop did not satisfy the requirements of the insurance contract.

15. In relation to the latest robbery, the one concerned in the present case, there was at least partial compensation for the goods taken and the judge pointed out to the jury that the insurance company involved, Messrs. Wheelock Marden Ltd., had continued to insure Mr. Tsui subsequent to this latest robbery.

16. On the appeal the applicants have raised a number of points which we have considered. It appears to be the case that one or perhaps both of them did in fact made a complaint to the Independent Commission Against Corruption some months after their arrest. That was based upon the theory - which was the substance of their case in court - that Ah Chung had, been the principal begetter of the conspiracy which they alleged had, involved Mr. Tsui.

17. That was again raised before the jury in the present case. Counsel has pointed out at the hearing this morning, a matter of the greatest significance in respect of that allegation which is that no such complaint was made by either applicant when identified by Mr. Tsui.

18. There was also evidence that the Independent Commission, did take the matter up with Mr. Tsui but no action has ever been taken against him.

19. The only other complaint to which I need refer in respect of either applicant relates to the allegation that the witnesses had, in some measure, changed their evidence either between the first and second trial or between statements which they originally made to the police and evidence which they subsequently gave in court. These objections relate to such minute matters as the failure of Mr. Tsui to refer, in his statement to the police, to having told tire police about objects touched by the applicant when they were carrying out the robbery, whereas in court he gave evidence to that effect. There was also a point about his not having told the police about having been called out of the office by, it is alleged, the first defendant and not by his assistant as he said in court. None of the other points put to us in relation to discrepancies reaches any higher level of impact.

20. The applicants have had very thorough treatment in the way of the investigation of this strange complaint of theirs. We find the substance in it and the applications for leave to appeal against conviction are refused.

21. They also ask for leave to appeal against sentence. They point out rightly that on the previous occasion when they were convicted they received lighter sentence than those imposed by the judge in the present case. The judge when he was passing sentence said:

"I must tell you that I am fully aware of the sentences that were passed on you at the first trial. However, in my view, the proper sentence in respect of the 1st accused is 12 years and 9 years in respect of the 2nd accused."

We find no reason to think that he was wrong in his estimate of sentence and the applications in relation to sentence are likewise refused.