HKSAR v. WU WING HONG

IN THE COURT OF APPEAL

1997, No. 258
(Criminal)

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J U D G M E N T

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

1. The Applicant was charged with three counts of robbery and tried before Saied J and a jury. He was convicted on counts 2 and 3 and by this application seeks leave to appeal against his convictions. The particulars of the first charge were that the Applicant on 23rd May outside the KPS Video Shop at Shop 6, Site 4, Whampoa Garden, Hunghom, Kowloon, in Hong Kong together with another person, robbed CHAN But-hung of cash HK$10,000, one 'Rolex' watch, and one Royal Hong Kong Jockey Club cash voucher valued at HK$460.

2. On the 2nd charge, which was amended, the particulars were that the Applicant on 23rd May 1996 at Flat 3A, Block I, Site 7, Whampoa Garden, Hunghom, Kowloon, in Hong Kong, together with another person, robbed CHAN But-hung of cash HK$3,000, cash US$240, pendants, earrings, rings, necklaces, one watch and one birth certificate in the name of FAN Kam-kin; and on the 3rd charge that the Applicant on 23rd May at the Halewinner Company Limited, Ground Floor, No. 67, Nathan Road, Kowloon, in Hong Kong, together with another person, robbed CHAN But-hung of two wrist watches.

3. It was the prosecution case that when Mr CHAN, who was PW1, attempted to board his Mercedes-Benz motor car outside the KPS shop referred to in the 1st charge on the evening of 23rd May 1996 he was approached by two men. Both men got into the car . The man who looked the older of the two got into the front seat and the younger one got into the rear seat. The older man produced a knife and told PW1 to give him his wallet and his Rolex wrist watch. He did so and also produced HK$5 - 6,000 cash from his pocket. The Jockey Club voucher was taken by the older man from the wallet. There were also some credit cards in the wallet. The older man told PW1 to drive to the nearest bank so he could withdraw moneys from the bank by using the cards. He demanded that PW1 should reveal his personal identification number so as to enable the transactions to be effected. PW1 complied with this request. When they reached the bank, the younger man got out of the car. He later returned saying that he had only been able to withdraw a few thousand dollars. This was the subject matter of the first charge.

4. The older man said that this was not enough. He demanded that PW1 should drive the car to his home so that valuables could be obtained. PW1 said there were no valuables at his home and that only his daughter was there. The older man said that they would leave the younger man at the flat to "guard" the daughter and that he and PW1 would go shopping with his credit cards. He gave the knife to the younger man and told PW1 if he got up to any tricks he would not telephone the younger man and he would then know what to do. He regarded this as a threat to his daughter's well being. The older man left with PW1 and they went to a shop selling watches, and the two watches, the subject of the 3rd count, were purchased by using PW1's credit card. PW1 then returned home and found that his daughter was unharmed but the flat had been ransacked. A check by PW1's wife indicated that the items referred to in the 2nd count were missing. A report was made to the police.

5. Police officers attended at the flat. Part of the action taken by the police was to ascertain whether the miscreants had left behind any fingerprints. It transpired that a fingerprint and a thumbprint had been left on a plastic box which had contained some of items which were stolen.

6. This evidence was of crucial importance as PW1 was unable to identify the Applicant who was clearly the younger man referred to in this short summary of the facts. As it transpired, this was the only evidence linking the Applicant to these offences.

7. The Applicant gave evidence at his trial. He denied ever having been at the flat in question. The only explanation he was able to offer for the presence of fingerprints was that the police officers concerned had been guilty of misconduct. He also gave evidence that on the evening in question he was attending a party of a friend who was celebrating his birthday. The friend gave evidence and produced his identity card which did show that his birthday was on 23rd May. He said that the Applicant had attended the party.

8. The 1st ground of appeal is that the verdicts of the jury were inconsistent. Mr Bruce, S.C. for the Prosecution, concedes that the verdicts were to say the least surprising. As has been indicated, although the charges were all separate and distinct, they all arose out of a continuing series of events.

9. As pointed out by Mr Bruce in his skeleton, it is incumbent upon the Applicant to demonstrate the irrationality of the verdicts to the extent required by the law. It would appear that Mrs Panesar, for the Applicant, has to a large extent in her skeleton been prepared to let the facts speak for themselves.

10. Saied J directed the jury to consider each offence separately. It is possible that the jury were prepared to attach great weight to the fingerprint evidence and they may have formed a view that the Applicant was not a party to the joint enterprise at its initial stage.

11. What is clear however is that an appellate court must be slow to upset the verdict of the jury unless it can be shown that it is irrational or illogical. On the facts of this case it has not been demonstrated to a sufficient level that these verdicts were such that no reasonable jury could have reached the decision it did. In this connection the younger man's overt participation only occurred subsequent to the Mercedes-Benz motor car leaving the site of the KPS store.

12. It is possible that the jury might have confined their deliberation to what actually occurred outside the store. The jury might have considered that the 1st charge was confined to this as the charge specifically refers to the events having been committed outside the store.

13. The test which has been adopted was referred to by Silke JA, as he then was, at p.265 ofR v CHENG Man-to [1987] 2HKC261:

" In R v Durante [1972] WLR 1612, 1617, Edmund-Davies LJ in giving the judgment of the Court of Appeal made reference to R v Hunt [1968] 2 QB 433 in which Lord Parker CJ cited an unreported judgment of Devlin J (as he then was) in R v Stone. This had regard to the approach which the court should adopt in cases of inconsistent verdicts. What Devlin J is cited as saying was:

'When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion and once one assumes that they are unreasonable jury or they could not have reasonably come to the conclusion, then, the convictions cannot stand. But the burden is upon the defence to establish that.'"

14. Having regard to the facts of this case this test has not been met. This ground of appeal fails.

15. Ground 2 is as follows:

"(a) During cross-examination of the Appellant the Prosecuting Counsel erroneously misled the Jury by suggesting that it was "important" and "beneficial" for him to disclose his Alibi Defence to the police at the earliest opportunity, and

(b) The Prosecuting Counsel failed to specify to the Jury as to what the "importance" and the "benefits" were to the Appellant; and

(c) By her cross-examination and in her final address to the Jury the Prosecuting Counsel emphasised to the Jury that despite realisation that it was "beneficial" for the Appellant to disclose his Alibi Defence to the police he failed to do so, and

(d) The learned Judge erroneously permitted the Prosecuting Counsel to cross-examine the Appellant as to his failure to disclose his Alibi Defence to the police when interviewed under caution when he had elected to remain silent, and

(e) The learned Judge failed to direct the Jury that the Appellant had been cautioned and that he was merely exercising his constitutional right and that he was entitled to remain silent at all stages before and during the trial, and

(f) The learned Judge failed to direct the Jury that the Appellant was under no obligation to disclose his Defence to the police and that he had complied with the requirements of S.65D of Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong, and

(g) In view of the cross-examination as to the non-specified "importance" and "benefits" of earlier disclosure of Defence by the Appellant it was incumbent on the learned Judge to direct the Jury that there was no "benefit" for him to do so because he would then have been providing additional material on which the Prosecution would have cross-examined him in order to discredit him, in the same manner, as had been done in respect of exhibit P5."

16. As can be seen, the main complaint which is being made is that Prosecuting Counsel asked the Applicant why he had not earlier given to the police particulars of his alibi. Mrs Panesar submitted that this line of questioning was directed against the Applicant's right to remain silent, and as the Judge did not see fit to give directions to the jury that no adverse inference could be drawn from this, the interests of the Applicant had been prejudiced.

17. On the other hand, Mr Bruce for the prosecution submitted that the questions which had been asked by prosecuting counsel had simply been attempting to cross-examine the Applicant on his alibi and that this was a perfectly legitimate exercise and there was no requirement for the Judge to refer to the questions in his summing-up.

18. The factual situation would appear to be that when the Applicant was initially arrested he was cautioned. He indicated that he was prepared to answer questions which were put to him. He was asked where he had been at 7:00 p.m. on 23rd May. He said that he could not remember. On 16th June he again attended at the police station in connection with complying with the terms of the bail which had been extended to him. He was again cautioned and asked if he would answer some questions. On this occasion he declined to do so, thus invoking his right to remain silent.

19. At the trial prosecuting counsel started asking the Applicant questions the purpose of which was an attempt to elicit an explanation why he had not on 16th June provided the police with the particulars of his alibi. This was of some significance having regard to the fact that the friend, who testified on his behalf, was able to produce evidence that 23rd May was indeed his birthday thus making the occasion memorable.

20. Mrs Panesar, who also represented the Applicant at the trial, objected to this line of questioning. There was an exchange and it would appear that the Judge ruled that while it was not a permissible exercise to question the right of the Applicant to remain silent, it was permissible to cross-examine the Applicant on his alibi evidence. It was then put to the Applicant that it "would have been beneficial" for him to have told the police that he had an alibi. He replied: "Yes, it would be beneficial."

21. It may be the case that the Judge was placing reliance upon a passage appearing in the judgment of Dawson J at p.338 of Petty & Maiden [1991] 55 A Crm R 322:

" The right to silence is a convenient, if somewhat imprecise, expression, which conveys the traditional objection of the common law to any form of compulsory interrogation. It embraces the absence of any obligation on the part of a person suspected of having committed a crime to answer questions by the police or other persons in authority. The exercise of the right to silence cannot, of itself, amount to an admission of any kind or reflect a guilty conscience, and a trial judge should so instruct a jury where an accused has chosen not to answer questions whether at or before the trial. The trial judge should tell the jury that the accused was quite entitled to remain silent and that they should not infer guilt from the fact that he exercised his right to do so.

But that does not mean that the choice by an accused to exercise his right to silence can play no part in the processes by which a jury arrives at its verdict. They may not say that he is guilty because he refused to answer questions; he had a right to do that. But if the accused gives evidence or makes an unsworn statement, having previously refused to answer questions, the jury are entitled, in assessing the weight to be given to the evidence or the unsworn statement, to have regard to the fact that he is advancing his account for the first time at trial and that he did not avail himself of an earlier opportunity to tell his version of events. Of course, there will frequently be a perfectly good reason why the accused chose to remain silent previously, which will mean that his silence is of no assistance in evaluating his evidence. For instance, his solicitor may have been present when he was questioned and may have advised him not to answer any questions. On the other hand, the explanation which he advances at trial may be so simple, straightforward and easily established at the time of questioning that his failure to advance it at the first opportunity casts doubt upon it when it is eventually given. If the jury in those circumstances do not believe the explanation given by the accused and conclude that he is guilty, they do not infer guilt from the exercise by him of his right to silence. But they may properly conclude that he is guilty because they disbelieve his explanation and the evidence called by the prosecution establishes his guilt beyond reasonable doubt in the absence of any explanation."

22. There has been some controversy on this subject as the dividing line between safeguarding a defendant's right to silence on the one hand and retaining the right to the prosecution to effectively cross-examine the defendant in relation to other evidence on the other hand may be a slender line.

23. It need not however trouble us in the present case. In re-examination the Applicant was asked why he had declined to answer questions on 16th June and he replied that he had done so on the advice of his lawyer.

24. No damage was done at the trial in this connection and accordingly it may have been counter-productive for the Judge to remind the jury of this exchange in an attempt to rectify the situation.

25. This ground of appeal cannot be sustained.

26. Ground 3 is as follows:

"Crown failed to prove the 'chain of evidence' in respect of exhibits P12 and P13, the fingerprint plates and the learned Judge failed to direct the Jury that Crown had failed to prove the 'chain of evidence' beyond reasonable doubt."

27. There is no merit whatever in this ground. Mrs Panesar submitted that the evidence relating to the fingerprints was defective insofar as it failed to establish that the exhibits had been kept securely during the period when they were being held by the police. She suggested, for example, that agreed facts which stated that Exhs.12 and 13, which were tapes of fingerprints, had been "returned to the Processing Unit" and later "taken out" therefrom did not establish that they had been kept securely in the unit. No attack of this kind was made during the trial. We are satisfied that the "agreed fact" must be taken to mean that the exhibits were returned to and kept securely in the Processing Unit until being taken out. Further the Judge painstakingly and accurately summarised all of the relevant evidence relating to the fingerprints and the steps taken by the police to ensure the integrity of their procedures and the manner in which the experts in the field reach the conclusions they do together with the implications arising out of their findings.

28. What was important was that the Judge made it clear that the whole process was dependent upon the trustworthiness and honesty of the officers concerned and that in the final analysis the jury had to be satisfied that the prints which were lifted were those of the Applicant and that they had not been interfered with. Thus, the jury was fully seized of matter and no criticisms can validly be made in this connection.

29. Most of the subsequent grounds of appeal were abandoned by Mrs Panesar at the commencement of the hearing. There was nothing of substance in any of the remaining grounds.

30. These convictions were neither unsafe nor unsatisfactory and this application is dismissed.