R. v. YAU SUN-CHOI

IN THE COURT OF APPEAL

1991, No. 400
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. This appellant was arrested on 24th January 1990. He was given leave to appeal against his conviction on 13th August 1992 after trial before His Honour Judge Leong (as he then was) and a jury. It is important, both as regards his appeal against conviction and his application for leave to appeal against sentence, to understand the background which led to his arrest.

3. On 10th December 1989, a man named Yeung Kwai-hoi had rum away from the scene of a car crash. He had been driving a Honda car on that day and, as he departed from the scene, he was observed to drop a knife and to throw away a plastic bag which was subsequently found to contain an air gun. the vehicle was searched and in its boot knives, a firearm, ammunition and other incriminating items were found. Yeung Kwai-hoi made confessional statements admitting that he had been a party to an agreement to rob a jewellery shop and to the taking both of the vehicle which had crashed and another vehicle. It seems clear that his statements to some extent involved the appellant who on 24th January 1990, some 6 weeks later, was arrested at a carpark. He, upon being questioned, made admissions to being a party to the agreement to rob the jewellery shop and to the taking of the vehicles. On a search of his home, a gun was found. It is to be noted that the search was conducted on 24th January 1990. Some ten months later, on 15th November 1990, he was tried before Bewley J. and a jury and convicted of possession of a firearm and ammunition without a licence. That charge related to the gun which was found in his home. He was sentenced to imprisonment for seven and a half years.

4. Some eight months later, on 9th July 1991, he, together with Yeung Kwai-hoi, faced His Honour Judge Leong an indictment which contained four counts. The first of these counts was one of conspiracy to commit robbery. It was particularized that he and Yeung Kwai-hoi, between 6th and 10th December 1989, conspired with persons unknown, to commit a robbery. The second count, against Yeung alone, was one of possession of arms and ammunition with intent to commit an arrestable offence. The third count, against the appellant alone, was one of taking a conveyance without authority: it being alleged that on 9th December 1989, at the public carpark station, Shatin, together with Yeung Kwai-hoi, and without the consent of the owner, he took a conveyance, namely a private car registration marked DJ 4210 for the use of himself and Yeung. The fourth count, also against the appellant alone, was again an offence of taking a conveyance without authority. It was alleged that he, together with Yeung, on 9th December at the ground floor Carpark Station Centre, Shatin, without the consent of the owner, took a conveyance, namely a private motorcar registration marked DW 4412 for his own use and that of Yeung.

5. The appellant was found guilty on the 1st and 3rd counts and not guilty on the 4th count. He was sentenced on the 1st count to imprisonment for 8 years, but 4 years of that sentence were ordered to be consecutive to the sentence of seven and a half years which he had received on the 15th of November 1990. He was sentenced to one year on the 3rd count, but that was ordered to be consecutive to the other counts, so that his total sentence on all counts was imprisonment for twelve and a half years. Yeung was convicted on the 1st and 2nd counts, i.e. the counts of conspiracy and of possession of arms and ammunition and he was sentenced to periods of imprisonment of eight years and seven and a half years, but these were ordered to be concurrent.

6. On an earlier indictment Yeung had pleaded guilty to counts of possession of arms and ammunition without a licence and to two counts of taking a conveyance without authority. He had been sentenced to six years concurrent on the first count and one year on each of the other two counts. Those sentences were ordered to be concurrent to each other but consecutive to the sentence on the other count. This meant that Yeung, on all the counts which he had faced, both on the earlier indictment and on the indictment with which we are concerned, received a total sentence of imprisonment of nine years.

7. When sentencing the trial judge summed up the matter saying:

"... you two defendants have planned carefully to rob a jewellery shop. You have planned with others and whereby weapons, genuine and imitation firearms, knives, and ammunitions would be provided for the purpose of the robbery, and cars were stolen beforehand, false number plates were made for the purpose of enabling your escape afterwards. It would seem that if it were not for the car crash, the robbery might have been carried out. So this is a conspiracy to commit a very serious offence whereby guns and live ammunition would be used."

8. The appellant in the statements which he made, which were outlined by the trial judge in his summing up, admitted that, on 10th December 1989, he had in mind to rob the jewellery shop in Peking Road near Hankow Road with Ah Wan, Ah Wah and Yeung Kwai-hoi. He said that shortly after 6 a.m. he and Yeung went to Shatin and stole two cars - a Honda and a Toyota. The Toyota was later handed to Siu Ban Chai for which he was given $3,000. They then went to the Whampao Restaurant to talk. He said in another statement that Yeung brought along two registration plates on that day and affixed them to the stolen cars. He admitted that the discussion to rob the jewellery shop was on 9th December, that the discussion between him and the three others took place in the Kam Cheuk Restaurant, that Ah Wan was responsible for arranging pistols and knives and that he was responsible for stealing cars. He admitted that they had gone that night to the jewellery shop to look over the surroundings and that Yeung had been arrested by the police.

9. Mr. Buchannan, who appears for the appellant today, has argued three matters of complaint. In each case he argues that inadmissable and prejudicial matters were placed before the jury.

10. The first occurred during the examination in chief of Detective Sergeant Chan Hung-fat. The exchange was as follows:

"Q. Officer, after YAU Sun-choi was being taken to Po Kwok jewellery shop, is it correct that he was then taken back to the Regional Crime Unit office?

A. Yes.

Q. And you continued to take cautioned statement from YAU Sun-choi, didn't you?

A. Yes.

Q. After you had finished that, that was sometime after 2 pm, is that right?

A. Yes.

Q. Is it correct that at 2.12 pm, YAU Sun-choi was brought before the senior inspector and was charged with the offence of possession of firearms without a licence?

A. Yes."

There was no objection made to these questions and answers at the time, but later on that same morning Mr. Buchannan raised the matter with the judge in the absence of the jury. He said:

"There is the alleged fact that following a home search or at a home search, a gun was found allegedly at the defendant's home. Any such reference to that would be extremely unfair and prejudicial in view of the nature of the case that was facing the defendant in this trial. So it was with the greatest surprise and despair, my Lord, that the Crown this morning in the presence and hearing of the jury asked a leading question of the witness, namely the current witness giving evidence, Sergeant CHAN, that on the afternoon - and I haven't got the precise wording, I'm sure the court record will show it though - YAU Sun-choi was brought before a senior inspector and charged with possession of a firearm without a licence, to which the witness, as I understand it, agreed to that leading question."

11. Mr. Buchannan then made an application that, because of the prejudicial nature of this evidence, the jury should be discharged. The trial judge, after hearing extensive argument, refused the application and gave the jury the following direction:

"... one small matter I wish to draw your attention to. This morning at the beginning of the evidence for the prosecution, mention has been made that YAU Sun-choi was brought before a senior inspector for charge of possession of firearm without a licence. That is a matter entirely not relevant in this case. It is of no relevance whatsoever in this case so as far as you are concerned. You should put that completely out of your mind so far as this case is concerned. So you will take it as if no such evidence has been given as far as the trial is concerned. So you will bear that in mind."

12. Emphasis is placed by Mr. Buchannan on the use of the words "in this case". We are unable to see that they have any special significance. The judge was clearly telling the jury there that they must put from their minds the mention that the appellant was brought before the senior inspector on a charge of possession of a firearm without a licence. His direction was a clear one. While he did not place undue emphasis upon it, he told the jury in no uncertain terms that they were to dismiss it from their minds. We consider that this was the appropriate way of dealing with the matter and that no complaint can now be properly made in that regard.

13. The second matter of which complaint is made arises out of the following observation of Crown Counsel when addressing the jury. He said:

"Let me deal firstly with the arrest and detention of the 2nd defendant. It has been alleged against the police officers of the Regional Crime Unit that the 2nd defendant was (and we emphasize these words) not legitimately arrested and detained. You have heard the police officers answered the allegations in cross-examination and in re-examination. Generally speaking, the police could arrest and detain anyone purely on suspicion that an offence has been committed by the arrested person. This is what has been (done) in the present case. The police need not have admissible evidence at hand, evidence such as would be produced in a court of trial. They can act on information and in this regard you have heard PW20 and PW21 testify that the arresting officer PW20 was instructed by Sergeant CHAN Hung-fat - PW21 - to arrest the 2nd defendant because in the course of enquiries PW21 had reason to believe that the 2nd defendant was involved with the case of possession of firearm and robbery. This was said in cross-examination."

These remarks were made in the context of allegations that the police officers had not "legitimately arrested and detained" the appellant. It was true that counsel said that they had acted upon information and that this court has, in the past, indicated that it is preferable, if reference has to be made to such matters, that the formula "acting upon instructions" rather than "upon information" be used. The trial judge referred to this matter in his summing-up saying:

"On the case against the 2nd defendant, before I go into the evidence there are two matters I need to mention to you. The first is in the final address of Mr LUK on the prosecution case against the 2nd defendant, Mr LUK referred to the police. He said that police may arrest a suspect acting on information or on suspicion. He was submitting at that time to you about what would amount to a lawful or an unlawful arrest. This does not refer to the 2nd defendant being arrested by the police acting on information, so you should not take this as anything against the 2nd defendant."

We are satisfied that this was a proper and sufficient direction.

14. We do not consider, given that direction, that there was prejudice of any sort to the applicant.

15. The trial judge again did not dwell upon this matter. Had he done so the jury might well have taken it to have had an emphasis which it did not deserve.

16. The next matter again arose out of a further observation by Crown Counsel. He said:

"Now, members of the jury, both defendants are charged with count 1. For a conviction to be established for count 1, you have to be satisfied beyond a reasonable doubt that the 1st defendant did conspire with the 2nd defendant and other persons unknown to commit a robbery. The confessions you rely upon in convicting D1, for example, need not be identical in content to the confessions of the other defendant, D2. But when reading the cautioned statement of each defendant, I would invite you to consider the following features.

Firstly, the persons named in the confession; second, the mention of use of firearms; thirdly, the taking of conveyance of vehicles; fourthly, the use of false number plates; fifthly the dates of the intended robbery; sixthly, the mention of Whampao Garden or Whampao Restaurant.

17. It was clearly wrong for Crown Counsel to make that observation to the jury. Mr. Buchannan argues that this must have had, at the time when it was said, the effect of putting into the mind of the jury, the existence of the similarities in the two confessional statements. However, when Crown Counsel completed his address shortly thereafter, the judge immediately said to him in the presence of the jury:

"Before you come to an end, I think you should clarify what you have just mentioned about reference to the confessions."

An exchange then followed in which both counsel addressed the judge. Crown Counsel then said:

"Very well. Yes, perhaps I should also add this, members of the jury. When you read the cautioned statement of a particular defendant, in the cautioned statement there may be reference to other persons named in the confession, now as a matter of law, an admission made by a particular defendant is only evidence against himself; in order words, if in his confession he refers to some other person, that is no evidence against that other person whose name appears in the confession statement. In other words, you can only use a particular cautioned statement against the maker and not against any other person named in that confession."

This correctly stated the law, but the matter was not left there. In his summing-up the judge, at an early stage, made the following general observation:

"Now since there are 2 defendants and 4 counts alleged against them jointly and separately, you must consider the evidence in respect of each count against each defendant separately. The fact that you find one defendant guilty of one count does not mean the other defendant jointly charged with him is also guilty of that count. The fact that one defendant is guilty of one count does not mean that he is also guilty of the other counts charged against him. You must consider each defendant's criminality separately in accordance with the case against him in respect of each count."

He later made specific mention of the cautioned statements saying:

"In regard to these statements, the first thing you have and should bear in mind at all times is that these statements are evidence against the maker only, that is whatever the 1st defendant said in these statements is evidence against the 1st defendant only. Your consideration of the 1st defendant's statements should be confined to the 1st defendant's case. It is not evidence against the 2nd defendant in any way.

Similarly, what is said in the 2nd defendant's statement is evidence against the 2nd defendant only and is no evidence whatsoever against the 1st defendant. Further you should not - and I emphasise you should not compare the statements of one defendant with those of the other defendant.

Therefore what you have been told by Mr LUK in his final submission that you may compare their statements is incorrect and you should ignore what Mr LUK told you in this respect."

18. We are satisfied that the jury can have been left in no doubt as to the proper approach to the statements. They were clearly told that the statements were evidence only against the maker and we must proceed upon the basis that they heeded that clear direction.

19. Mr. Buchannan finally urged upon us that all three matters, taken cumulatively, should leave us in doubt as to whether the convictions were safe and satisfactory. As each of the matters was properly resolved at the trial we have no such doubt. The application to appeal against the convictions must, therefore, be dismissed.

Re Sentence:

20. We turn now to the application for leave to appeal against sentence. It is not necessary further to canvass the facts which have already fully been set out in the judgment of the court on the appeal against convictions. We do, as regards the facts, no more than observe that all five counts on which Yeung Kwai-hoi was sentenced, arose out of the conspiracy to rob a jewellery shop for which he received a total of 9 years' imprisonment. We also note that as to three of these he pleaded guilty. The applicant on the other hand pleaded not guilty to all of the offences in which he was involved.

21. In his application for leave to appeal against sentence Mr. Buchannan raised two matters. He suggested firstly that there was a disparity between the overall sentences of the applicant and Yeung Kwai-hoi which was not justified by any difference in the roles of each. He submitted that they were equally culpable and should have received equal overall sentences whereas Yeung received nine years and the applicant received twelve and a half years. He went on to suggest that even if this not be so, the totality of the sentences, twelve and a half years, imposed upon the applicant was excessive.

22. As to the first point we do not consider that there was any disparity. Disparity can only arise if different sentences are imposed upon defendants who bear the same responsibility for the offence or offences with which they are charged. There can be no disparity where a defendant is sentenced to a longer term than another defendant if the former has played a more culpable part than the latter or has been involved in offences distinct from those in which he has committed with the latter.

23. The applicant was sentenced on the arms and ammunition offence to seven and a half years on the conspiracy offence to eight years and on the taking conveyance offence to one year consecutive to the eight years. Four years of the sentence on the conspiracy count was ordered to be consecutive to the seven and a half years already imposed making the sentence overall one of twelve and a half years.

24. Yeung Kwai-hoi was not involved in the arms and ammunition offence. The only link, if it can be properly so described, between that offence and the conspiracy offences was that the applicant said that he offered the weapon which was found in his premises in January to the conspirators for use in the contemplated robbery. He said that he was told that it was not necessary and that he therefore continued to keep that weapon in his premises. As the arms and ammunition offence was quite distinct from the conspiracy offences we are satisfied that there was no disparity.

25. We turn to Mr. Buchannan's second submission which was that the totality was excessive.

26. The applicant received a sentence of nine years for the conspiracy and allied charges. We are satisfied that that was a proper sentence for those serious offences. The applicant received on the arms ammunition charge a sentence of seven and a half years. The judge, bearing in mind the totality principle, made an order which had the effect of making 5 years of the later sentences consecutive to the seven and a half years already imposed. This totality, given the seriousness of the offences, was in no way excessive. The application, therefore, must be dismissed.