THE QUEEN v. YEUNG MAN HUNG

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J U D G M E N T

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Jones, J.,

1. This is the judgment of the. court.

2. The applicant Yeung Man-hung seeks leave to appeal against his conviction on the 1st May 1990 before Barnes, J. and a jury of one count of robbery, one count of Possession of a firearm and ammunition at the time of committing a robbery and possession of arms and ammunition without a licence. He was sentenced on the 3rd May 1990 to 14 years' imprisonment on the first count, five years' imprisonment on the second count and 2 years' imprisonment on the third count, the sentences to run concurrently, making a total of 14 years' imprisonment.

3. On the 12th June 1992, the applicant was granted leave to abandon his appeal against sentence.

4. The applicant who was the 4th defendant at the trial was jointly charged on the first two counts with three other men. The robbery was committed on the 13th January 1989 at the Wan Shing Goldsmith Shop, Shumshuipo by the three co-accused, two of whom were armed with pistols and the other with a knife. A large quantity of jewellery was stolen. The three co-accused were caught by the police shortly after the robbery and were taken to a police station where they made statements.

5. The case against the applicant was that he and a person named Tai Ma Shing instigated the three co-accused to carry out the robbery as a result of threats and acts of assault. From the evidence it appears that the three co-accused had been recruited from China to carry out the robbery. They were first entertained in Hong Kong by the applicant and Tai Ma Shing, and by virtue of the hospitality that they received felt obliged in return to carry out the offence. Nevertheless it is clear from the jury's verdict that they accepted that the applicant and Tai Mai Shing had used force upon them for the three co-accused were acquitted on both counts having successfully pleaded that they had acted under duress.

6. The evidence against the applicant was given by the three co-accused and in cautioned statements that the applicant made to the police. The applicant gave evidence denying the allegations of duress made by the three co-accused and although he admitted that he signed the statements, he claimed he was forced to do so by reason of threats, acts of assault and by promises of being granted bail. He denied that the admissions that he made in the cautioned statements were true.

7. As the jury found the applicant guilty on the first count of robbery, it necessarily followed that he was also guilty on the second count provided that he knew that firearms were to be used which, by their verdict, the jury so found.

8. The third count related to the possession of a gun and ammunition found in the applicant's locker at a restaurant dormitory in Kwai Chung when the police visited there with the applicant on the 28th August 1989. The police opened the locker with a key that was in the possession of the applicant. The applicant said that the visit took place on the 29th August but this conflict was not material.

9. The possession by the applicant of the key raised the presumption in the Arms and Ammunition Ordinance that he was in possession of the gun and ammunition unless there was evidence to rebut the presumption on the balance of probabilities.

10. Whilst the applicant admitted possession of the key and the locker, he said he did not know that the gun and ammunition were inside. A witness was called by the applicant to the effect that the applicant did not have exclusive control over the contents of the locker, However, the police said the applicant admitted that he knew the gun and ammunition were there, why they were there and when he put them there. The statement as to when he put them there was also confirmed by a newspaper wrapping which was placed over the gun.

11. Mr Murray, counsel for the applicant, argued five grounds of appeal. First:-

(i)     The trial judge misdirected the jury to the effect that one mode of participation in a criminal enterprise is through "persuading or instigating" others to commit the particular crime alleged;

(ii)     The trial judge failed to give the jury any or any sufficient directions concerning counselling and procuring the commission of an offence; and

12. Mr Murray submitted that a full direction should have been given with regard to counselling and procuring the commission of the offence rather than the use of the words "persuading or instigating". However, we do not consider that there was any misdirection by the trial judge. The words "persuading or instigating" in our judgment Sufficiently explained the position to the jury. In an otherwise, careful summing up, the trial judge was admittedly in error when he said that it, was the prosecution's case that the applicant instigated the other three defendants to rob under the threat of the use of force, In fact it was never the prosecution's case for the allegations were only made by the co-accused during the course of their evidence. We regard the statement by the trial judge to be an unfortunate slip, but it does not constitute a ground for quashing the conviction.

The second ground states:-

"Under the particular circumstances of the case the trial judge ought to have exercised his discretion in favour of warning the jury with regard to the danger of acting on the uncorroborated evidence of the First, Second and Third defendants, similar to that which is given in the case of accomplices."

13. In support of this submission, Mr Murray cited R. v. Prater (1960) 44 Cr App R 83 where the headnote reads:

"Where it appears that a witness, whether a co-prisoner or a Crown witness, may have some purpose of his own to serve in giving evidence, it is desirable in practice that a warning should be given to the jury with regard to the danger of acting on his uncorroborated evidence similar to that which is given in the case of accomplices, whether the witness can properly be classed as an accomplice or not."

He also referred to R. V. Knowlden & Knowlden (1983) 77

Cr App R 94 where the headnote reads:

"Where co-defendants make damaging accusations about each other in the witness-box it is not incumbent on the trial judge to give the PRATER direction [(1959) 44 Cr. App. R. 83; [1960] 2 Q.B. 464] which includes a full direction upon corroboration.

No rule of law was laid down in PRATER (supra) but rather a rule of practice the form of adoption of which where the witness is a co-defendant, is always a matter for the discretion of the trial judge.

In exercising his discretion the trial judge is at least expected to give the customary clear warning to a jury where defendants have given damaging evidence against one another to examine the evidence of each with care because each has or may have an interest of his own to serve. Whether he should also adivse the jury to look for corroboration of the evidence of a co-defendant and specify what evidence may or may not be capable of being corroboration will be decided for him, having regard to the nature and severity of the attack made by one co-defendant upon another. The need for this advice should rarely arise since the simple customary warning will suffice to ensure that the jury regards the evidence in question with proper and adequate caution."

14. Mr Murray also referred to R V Chan Siu-hung (1976) HKLR 357 and R. v. Chan Tat-kwong and another (1991) 1 HKLR 205 where the holding reads:-

"It. was normally only necessary that a trial judge give the customary clear warning to a jury where defendants gave damaging evidence against one another. It was not generally required that the full accomplice warning be given."

15. Barnes, J., in his summing up, gave the following direction to the jury at page 24 when he was considering the case of the applicant:-

"With regard to the evidence of the first three defendants, you should be very careful when considering their allegations against the 4th defendant. They admit that they did at the actual taking of the jewellery using the threat of force to take it. They may very well have interests of their own to serve by playing down their roles and magnifying his. Their evidence that he had a role in planning the robbery is, however, supported by that of the police officers if you accept that the 4th defendant did tell the police what is contained in his statements and if you accept that what he there said about his role is true."

16. Mr Murray emphasised the severity and nature of the attack by the three co-accused against the applicant with regard to the allegations of duress which he said can be easily raised, but are difficult to refute. He went on to say that it is an inherently suspicious defence particularly in this case when the co-accused had not made them at the outset. He also criticised the failure of the trial judge to warn the jury that the co-accused were accomplices, and that their evidence could not be corroborative of each other.

17. We have carefully considered this ground of appeal, but we are satisfied that it was unncessary for the trial judge, in the exercise of his discretion, to give the jury an accomplice warning in this case.

18. The third ground of appeal was to the effect that the trial judge, when summing up the case, did not sufficienlty refer to the defence case raised on behalf of the applicant. The trial judge was admittedly brief, but the trial was not long, lasting for approximately one month. The evidence was straightforward and uncomplicated and must have been fresh in the minds of the jury whilst the cautioned statements were before them. We do not consider that there is any merit in this ground of appeal.

19. The fourth ground was directed to a criticism of the trial judge when he used the following words in connection with the cautioned statements:-

"We, you and I, are not concerned with whether the police were naughty or nice insofar as the question of the worth of this (cautioned statement) evidence is concerned."

Mr Murray contended that a direction in the following terms

would have been more appropriate:-

"The jury should have been directed to the effect that what weight they attached to the statements was dependent on all the circumstances in which they were taken, and that it was their right to give such weight to them as they thought fit."

The trial judge gave a clear direction to the jury that they should only act upon the cautioned statements if they were sure that they contained the truth. We do not consider any objection can be taken to the words used although perhaps they could have been more elegantly expressed. We therefore reject this ground of appeal.

20. By the fifth ground, Mr Murray submitted that the third count should have been severed and tried separately for it was not the prosecution's case that the gun and ammunition found in the locker had any connection with the robbery. However, no application was made for severance at the trial. In our judgment, it is too late to make such a complaint at this stage so that this ground is rejected.

21. The application is therefore refused.