HKSAR v. SO CHI KWONG and Others

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 542
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The lst Applicant So Chi Kwong was convicted following a trial in the District Court before Deputy Judge Line of one charge of robbery and one charge of burglary (the 2nd and 4th charge). He was sentenced to 5 years' imprisonment on the robbery charge and 2 years' imprisonment on the burglary charge with one year of this sentence consecutive to the sentence of 5 years, making a total of 6 years' imprisonment.

2. The 2nd Applicant So Chi Chung was convicted of 3 charges of burglary (1st, 3rd and 4th charge) and one charge of robbery (2nd charge). For the robbery charge, he was sentenced to 5 years' imprisonment and for the burglaries, he was sentenced to a total of 2½ years' imprisonment with 18 months of which consecutive to the sentence on the robbery charge. This amounts to 6½ years' imprisonment in total. The 3rd Applicant was convicted of three charges of burglary (lst, 3rd and 4th charge) and was sentenced to the Training Centre. The 4th Applicant was convicted of one charge of burglary (lst charge) and he was sentenced to the Training Centre.

3. The lst and 2nd Applicants now apply for leave to appeal against conviction and sentence whereas the 3rd and 4th Applicants now apply for leave to appeal against conviction only.

4. The four Applicants were arrested by the police following a burglary which occurred on 24 January 1997 at room 1810, On Hoi House, in Cheung On Estate in Tsing Yi. Five men broke into these premises by forcing open the iron gate and the front door, cutting the pad lock on the iron gate. A next door neighbour (PW8) discovered the burglary and alerted the police. Police officers on arrival at the scene, saw three men run out from the building to a waiting van which drove off at high speed. One of these three men was identified as the 2nd Applicant. The van was subsequently intercepted and the lst Applicant was found on board with another defendant. The lst Applicant was the driver of the van at the time. They were then arrested by the police. In the van the police found a roll of adhesive tape. When it was taken to the forensic scientist for examination, the edge of this roll of tape was found to match the tape used to tie up the woman victim in a robbery which occurred a few days earlier in the same estate. Acting on information provided by those arrested, police officers arrested the 2nd Applicant not other defendants in the case who took the police to a meter room where a bolt cutter, a crow bar and a knife together with a machete were recovered. Forensic scientist examined the crow bar and found it had been used to force entry into the premises at room 1810.

5. These Applicants were separately interviewed by the police and they each made a number of statements under caution. In these cautioned statements, they made various admissions. The lst Applicant admitted that he participated in the robbery in the 2nd charge in which the woman victim was threatened with a knife and was tied up with adhesive tapes. He also admitted the burglary in the 4th charge where entry was gained by cutting the padlock on the iron gate and forcing it open with a crow bar. He said in these statements that in both cases he merely acted as the driver of the get away van.

6. The 2nd Applicant admitted that he participated in the burglary in the lst charge where he acted as a look out, the burglary in the 3rd charge where he stole several ten dollars and the burglary in the 4th charge where he and another defendant cut the pad lock on the gate and priced open the door into the premises. But they fled in a van when they heard foot steps and before they could steal anything. The 2nd Applicant also admitted he participated in the robbery in the 2nd charge where he searched the premises for valuables after the woman was tied up with adhesive tapes. He also admitted that a melon knife was used in the robbery.

7. The 3rd Applicant admitted taking part in the burglaries in the lst, 3rd and 4th charges. In all these burglaries, he acted as a look out.

8. The 4th Applicant admitted taking part in the burglary in the lst charge where he acted as a look out.

9. The prosecution relied mainly on the evidence of the admissions made by these Applicants in their cautioned statements.

10. The lst Applicant's case at the trial was that the interviewing officer threatened him that he would be revealed to a loan shark and his wife would be prosecuted for trafficking dangerous drugs if he did not sign the cautioned statements. He admitted the matters because the interviewing officer promised to release his wife without laying any charge against her. He denied the admissions were made by him and claimed that the roll of tape which was examined by the forensic scientist was not the one found in his van.

11. The case of the 2nd Applicant at the trial was that he signed the cautioned statements because the police promised to release the women arrested with him without charging them. He was beaten up and police officers had subjected him to water torture and in addition, the officers threatened to reveal him to the loan shark if he did not sign. He denied the admissions were made by him. His sister in law gave evidence for him that he was at her home at the time when the burglary in the 4th charge took place.

12. The case of the 3rd Applicant at the trial was that he was assaulted by the police at the police station and subjected to water torture to make him admit. The 4th Applicant's case at the trial was similar. Police assaulted and tortured him to make him admit. A witness was called by the 4th Applicant and he said that the Applicant was in his restaurant at the time of the burglary in the lst charge.

13. The trial judge rejected all the allegations of brutality and inducements made by the four Applicants and found their statements voluntary.

14. The trial judge convicted the lst Applicant on the evidence of his admissions and that he was the driver of the get away van and in addition on the scientific evidence on the roll of tape found in the van.

15. The trial judge convicted the 2nd Applicant on his admissions and that he was identified as one of the three men who had got away in the van. The trial judge rejected his alibi evidence. As regards the 3rd Applicant, the trial judge relied on his admissions and convicted him.

16. The trial judge found the alibi of the 4th Applicant disproved and convicted him on his admissions.

17. The lst Applicant made a number of grounds in his grounds of appeal. The first point he made was that he queried why his statement was not taken until after the other defendants were arrested. The next point he made was that there were discrepancies in the evidence of the prosecution witnesses. Then he complained that the police officers knew they had arrested the his wife and she had taken them to a home search. He alleged that the interviewing officer denied in evidence that they knew the woman who took them to the house search was his wife. Further grounds were that no identification parade had been held and there was no finger print evidence and no victim gave evidence. Finally, the tape produced in court was not the one seized from his van.

18. The grounds of the 2nd Applicant are that he was assaulted by the police and his lawyer had seen his injuries and that there was no identification. The evidence of the witness who identified him is doubtful since out of the three persons who rushed out, the witness could only identify him. The officers evidence were inconsistent with each other. Further his finger prints were not found on the tools produced in court.

19. He put in an additional ground before us. He said that he did not participate in the robbery and there was no evidence that he took any weapon to the scene of the robbery.

20. The 3rd and the 4th Applicants had not filed grounds of appeal. The 3rd Applicant now put before us the following grounds: that he was not arrested at the place as alleged, the statement was not voluntary, there was no positive identification and that there was no finger print implicating him.

21. The 4th Applicant put in the following grounds. He was at home when he was arrested, but the police said he was found acting suspiciously outside the premises. This was contradictory. There was no finger print and his statement was not voluntary.

22. The lst Applicant has not indicated how the sequence of taking statements from him would affect the outcome of the case. There is no substance in this ground.

23. On discrepancies, it is inevitable when different witnesses tell of the same event after a long period of time that there are discrepancies. Provided that the trial judge had these in his mind when he considered the evidence of the prosecution witnesses, he was entitled to accept, as indeed he had, their evidence despite those discrepancies. The trial judge was aware of the interviewing officer's denial that he knew the lst Applicant's wife and the judge did have some reservations in this regard. Be that as it may, the judge considered that this had not significantly damaged the officer's credibility.

24. As regards the other grounds of appeal of all the Applicants, the trial judge had considered all the circumstances as to the taking of the cautioned statements. He rejected the versions of events and the allegations made by the Applicants. His Reasons for Verdict had been prepared in detail in respect of the case of each Applicant and had taken into account all that was put for the defence whether on the general issue or the special issue. All the matters raised in the grounds of appeal of the Applicants had been considered by the trial judge. His conclusion is a finding of fact and the Applicants have not been able to show that this is wrong. The trial judge was entitled to convict without more on the admissions of the Applicants. The absence of fingerprints or other evidence implicating the Applicants is immaterial when the trial judge was sure that the admissions were true. In these circumstances, we are not prepared to interfere. These applications for leave to appeal against conviction are dismissed.

25. On sentence, both the lst Applicant and 2nd Applicant said that there was no evidence that a weapon had been used in the robbery. That is not correct. In their statements, they admitted a knife was used in the robbery.

26. The sentence of five years for the robbery charge is in no way inappropriate. The sentence for an ordinary case of armed robbery where a knife has been used is five years and if the robbery also involves invasion of private premises a sentence of six years' imprisonment should be considered. If violence has been used including tying up the victim, a sentence of 7 years should be considered. There are the guidelines in R. v. Mo Kwong Sang [1981] HKLR 610. The Applicants together with other defendants priced open the door of domestic premises, threatened an old woman with a knife and tied her up. In these circumstances, the Applicants should consider themselves fortunate that they received a lesser sentence than under the guidelines.

27. For the burglary charges, the normal sentence for a single burglary of domestic premises is one of 3 years. The 1st Applicant was sentenced to 2 years for one charge of burglary. The 2nd Applicant was sentenced to a total of 2½ years for three burglaries. These sentences are well within the guidelines. On totality a sentence of 6 years for the two offences in the case of the lst Applicant and 6½ years for the four offences in the case of the 2nd Applicant are neither wrong in principle nor manifestly excessive. The applications for leave to appeal against sentence should be dismissed.