THE QUEEN v. LI SIU MING

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted after trial before Garcia, J. and a jury of robbery, possession of an imitation firearm at the time of committing a robbery, and possession of arms and ammunition without a licence.  The arms and ammunition comprised one .25 calibre automatic pistol, one .32 calibre revolver, three .38 calibre revolvers, 4 home made pistols, one Chinese army hand-grenade, 28 rounds of .38 calibre ammunition, 23 rounds of .25 calibre ammunition, 22 rounds of .32 calibre ammunition and 112 rounds of other ammunition. He was sentenced to twelve years' imprisonment on the robbery count, to five years on the possession of an imitation firearm count and ten years on the possession of arms and ammunition count. The judge ordered that the sentences on the first two of these counts be served concurrently, but that the sentence on the possession of  arms and ammunition count be served consecutively to those two concurrent sentences. The overall sentence was therefore one of twenty years imprisonment.  The applicant  now seeks leave to appeal against his convictions on both the robbery and the possession of an imitation firearm counts and, if necessary, against the totality of the sentences imposed on him.

2. The first count related to a robbery which occurred at the Artland Watch Company in Ice House Street on the 25th November 1987.  One robber posing as a customer tricked the manager into opening the door to allow him to enter. Having succeeded in gaining entry he produced a pistol and pointing it at the manager, shouted "Robbery!". Two other robbers wearing stocking masks and brandishing what appeared to be pistols burst into the shop and threatened the staff. They then used screwdrivers to prise open showcases containing Rolex watches.  Within about three minutes they had taken 34 watches valued at $2.1 million and had fled along Ice House Street towards Queen's Road. While the robbery was in progress surveillance cameras in the shop recorded a great deal of robbers' activities.

3. The second count on which the applicant was convicted, namely possession of an imitation firearm at the time of committing a robbery, was the third count on the indictment.It was expressed to be an alternative to the second count, which was one of possession of a genuine firearm at, the time of committing a robbery. These alternative counts concerned the weapon which the prosecution alleged was carried by the applicant during the course of the robbery. The jury were plainly satisfied that the applicant was in possession of a firearm, but were not satisfied that it had been proved to be a genuine firearm. The remaining count was one on which the applicant was indicted jointly with another accused. It arose out of events that occurred, on the 22nd March 1988.  The evidence was that a police party which had been maintaining observation on a building in Fuk Wing Street, Kowloon intercepted the applicant and another man as they emerged from it. The applicant put up a struggle but was eventually subdued and arrested.  He was searched and a bunch of nine keys was found on his person These, he explained, were used to open the doors of his home in Yuen Long. Subsequently, by a trial and error process on the door locks of fiats in the Fuk Wing Street Building, the police discovered that two of the keys fitted the metal grille and the wooden door respectively of the entrance to a flat on the second floor. On gaining entry to the flat the police found that another key in the bunch fitted the door of the middle cubicle. This consisted of a sitting room and a bedroom. On the bedroom wall was a wending photograph of the applicant. The police then conducted a search, in the course of which they discovered a leather bag under a blanket in the bedroom.  It contained four home made pistols, a hand-grenade, four magazines and a quantity of .25 calibre ammunition of Chinese and Soviet Russian manufacture.

4. On being cautioned the applicant said " I want to explain. The guns were put by others in my home.The guns are not mine."   When asked whether there were "any more", he indicated that there were several guns in a plastic wardrobe near the door. A search of the wardrobe produced a plastic bag containing four revolvers, a plastic box in which there were a .25 calibre pistol and seventy-three rounds of live ammunition, some of  which were wrapped in a piece of paper. One women's pantyhose with the legs cut off, and a briefcase similar in appearance to that depicted in one of the photographs taken at the scene of the robbery, were also found in the wardrobe.

5. The applicant's left thumbprint was found on a mirror and his left palm print was found on the piece of paper in which the ammunition was wrapped. Other prints found by the police provided insufficient detail to enable them to be identified as having come from any particular person. There were items of property found in the cubicle that connected the applicant with the premises. These included an old driving licence, bank pass books, letters, photo albums and rent receipts. The most important discovery in the cubicle with regard to the robbery count was a pair of white sports shoes.

6. A forensic examination of the interior of the Artland Watch Company revealed two shoe print impressions one of which was lifted from the top of a showcase, the other from the top of a stool. It was plain from the surveillance camera photographs that in the course of the robbery at least one of the robbers had stood on the showcase when clambering over it having gained access to the watches. Some of the photographs also showed the same masked robber wearing a pair of white sports shoes, crouching behind the showcase and rifling its contents.

7. Dr. Wong, a forensic scientist, testified that the shoe print impression lifted from the top of the showcase agreed in sole pattern, width and general wear pattern with the left shoe of the pair of white sports shoes found in the cubicle.  He also testified that the impression taken from the stool agreed in size,sole pattern and wear characteristics with the right sports shoes. On the heel counter of the right sports shoe was a triangular scrape mark that corresponded with a mark which was clearly visible in a photograph taken by the surveillance camera of the right shoe worn by one of the masked robbers. The left shoe of the seized pair of sports shoes had two dark patches of dirt, one horizontal and other vertical, adhering to the heel counter. These corresponded with two marks which are also clearly visible in a surveillance camera photograph of the left shoe worn by the same masked robber. Dr. Wong also compared the pair of white sports shoes found in the cubicle with the pair of shoes worn by the applicant on the day of his arrest and later taken from him in Lai Chi Kok Remand Centre for the purpose of that examination. Both were of the same size and displayed the same wear pattern on their soles and heels. An examination of the foot impressions on the inner soles of both pairs of shoes revealed that the pattern of toe impressions in the pair of white sport shoes found in the cubicle was similar to that in the pair worn by the applicant on the day of his arrest. The pressure pattern of the ball of the foot was also similar in both pairs of shoes. Dr. Wong expressed the opinion that the same wearer had regularly worn both pairs.

8. Finally two of the photographs taken by the surveillance camera revealed that the robber wearing the white shoes had two marks on the back of his right hand. When he was arrested   the applicant was found to have two scars in the same positions on the back of his right hand as those in which the marks appeared on the hand of the robber seen in the photographs.

9. In his defence the applicant testified that he rented the cubicle and had lived there until February 1987. His wife and daughter had lived with him initially, but in September 1986 his wife left for Canada and his daughter was sent to China to be cared for by the applicant's mother. In February 1987 he moved to Lai Chi Kok Road where he cohabited with  a girl friend. Not wishing to let her know that he had been married, he left his wedding photograph at the Fuk Wing Street cubicle together with some of his old clothing, shoes and documents that he no longer wanted. Notwithstanding his move to the flat in Lai Chi Kok Road, he continued to rent the cubicle in the Fuk Wing Street premises and paid the electricity charges.  His explanation for this was that he wished go provide his younger brother, who was not well off, and his brother's friend with a place where they could live from time to time. However, he continued to use the address as a mail box for letters from his wife and as a place at which he could receive telephone calls from her.  According to the applicant he had not been to the cubicle for some 6 or 7 months prior to the 22nd March 1988 owing to a quarrel he had had with his wife during the course of a telephone call.  As a result, she had not sent him any letters after 31st August 1987.

10. He admitted that he had gone to the cubicle on 22nd March, but explained that this was because his younger brother's friend had asked him for a loan of $3000 and had arranged to meet him there.  On arrival at the premise he found that his brother's friend was not present. While he was waiting for him, he received a call on his portable telephone from a friend who requested him to join him for tea in a restaurant on the ground floor of the building. Shortly after meeting his friend downstairs the police suddenly swooped and arrested them both. The applicant agreed that he had struggled with the officers and had given them a false home address.  He explained that he supplied the false address because he was concerned that, as his younger brother did not have in identity card, he, the applicant, would find himself in trouble. Moreover, he was afraid that if the police arrested his brother they would bring him to the applicant's home. He also explained that the piece of paper in which the ammunition was wrapped and on which his palm print was found, had been sent to him by his wife because it listed the names of some songs she wanted him to record for her on a cassette. Having arranged for the recording to be made, the applicant casually left the piece of paper on a desk in the cubicle. It was therefore readily available to anyone who needed something in which to warp the ammunition.

11. The applicant further testified that he and his younger brother are of approximately the same build and height. The younger brother would therefore have been able to wear the clothing and shoes that the applicant had left in the cubicle. The clear implication was that it was his brother, not him, who had been involved in the Artland watch shop robbery.

12. Mr. Hemmings, who appeared for the applicant in this court, submitted that on the count of robbery and possession of an imitation firearm at the time of committing a robbery there was no direct evidence implicating the applicant. The evidence was merely circumstantial from which no safe or satisfactory inference could be drawn that he was guilty of either offence. He contended that these two convictions rested on the testimony of a forensic scientist with barely one year's experience, that there was no evidence that the applicant was wearing the shoes at the material time, and that there was insufficient evidence as to whether the sole pattern discernible in the shoe prints was common in. Hong Kong or whether there was anything distinctive about the pair of shoes so as to make them unique.Mr. Hemmings further submitted  that there was no evidence that, at the time of the robbery, the applicant's right hand pore the scars seen by the police at the time of his arrest or that the panty hose found in his cubicle was the same as any of the stocking masks worn by the robbers. He also complained that prosecuting counsel had invited the jury to find that the general appearance of the robber wearing white shoes and depicted in photographs taken by the surveillance camera was one of the factors from which they should conclude that the applicant was a participant in the robbery.

13. On the robbery count and the possession of a firearm at the time of committing a robbery count the jury had the benefit of the photographs taken by the surveillance camera. Notwithstanding Mr. Hemmings' submission to the contrary we are satisfied that they were fully justified in concluding from the forensic evidence, which was not challenged by any expert evidence, that the pair of white sports shoes depicted in the photographs was the same as that belonging to the applicant and found in his cubicle. Indeed, by unmistakably inferring that his brother had worn his shoes at the robbery, the applicant himself appears to have recognised the inevitably of this conclusion.

14. In the light of the shoe and shoe print evidence, the discovery in the cubicle of the cache of arms and ammunition together with the panty hose from which the legs mad been cut off, and the photographs from which it could be seen that the robber who was wearing the white sports shoes, also bore marks on his right hand which coincided with the, position of the scars on the applicant's right hand, we are of the opinion that the jury were fully justified in finding that the applicant was one of the robbers. Plainly they did not believe his evidence that someone else had placed the arms and ammunition in his cubicle or that there was a possibility that it was the applicant's brother who was the   robber depicted in the photographs.

15. We do not agree that, in inviting the jury to conclude that the applicant was that robber, prosecuting counsel was wrong to ask them to take into consideration, together with all the other evidence, the general appearance of the robber. He was entitled to do so. Indeed, we note that defence counsel at the trial himself asked the applicant in the course of his examination in chief whether the robber depicted in two of the photographs bore any resemblance to any one whom he knew, and that the applicant had replied that he thought that that robber "looks somewhat like my younger brother".

16. We are entirely satisfied that the convictions are both safe and satisfactory. In our opinion the jury's finding that the applicant was guilty on the lesser of the two alternative counts is by no means inconsistent with their verdicts on the other counts. Since no shots were fired during the course of the robbery they were entitled to give the applicant the benefit of any doubt in deciding whether the gun was an imitation or a genuine firearm. We find no merit in any of  the grounds of appeal. The application for leave to appeal against conviction is therefore refused.

17. With regard to the application for leave to appeal against sentence Mr. Hemmings submitted that an overall sentence of 22 years' imprisonment could only De justified on the basis of evidence that the arms and ammunition found on the applicant's cubicle had been used in other robberies. We entirely disagree.

18. With the cache of weapons available to him the applicant clearly had in mind the commission of further offences. He had at his disposal a veritable arsenal including a hand grenade whose fragmentation effects are potentially lethal within a radius of 10 metres from the point of explosion. It hardly needs saying that a weapon of this nature would have a devastating effect in an enclosed or crowded area.

19. This court has clearly stated in previous occasions that those who are found in possession of firearms will receive severe punishment.

20. We have no hesitation in saying that the sentences imposed on the applicant were richly deserved.  The application for leave to appeal against sentence is also refused.