THE QUEEN v. LAM KAI WAI (D1) AND OTHERS

IN THE COURT OF APPEAL

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JUDGMENT

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Li, J.A.:

1. At approximately 10.30 in the morning on the 11th of May last year, a Madam Lok was at home with her sister-in-law, Madam Tsui. They were enticed to go out of their home by telephone call which falsely reported that Madam Tsui's son was injured in school and was taken to hospital. There was a second telephone call which gave them the impression that the police would be going to their home. Five minutes later, a person in police uniform arrived and told them to fetch some warm clothing for the injured boy. They went back to the flat to be followed by this man in uniform. Once inside the flat the man in uniform took out a 12 inch-long knife, threatened Lok and Tsui and declared a robbery. There was a struggle. They shouted for help. In the process Lok was injured - a laceration wound on the thumb and a laceration wound on the neck. Fortunately, they were not serious wounds. The man panicked and went away. Nothing was stolen.

2. On the 19th of July the police arrested the 1st accused, who is now the 1st applicant, LAM Kai-wai. I shall refer him as Dl. He made a confession under caution at Sai Kung Police Station. Upon further enquiry, other accomplices were arrested. They were in that order WONG Mei-fung, CHENG Ming-sun and CHONG Yim-chun. They also made statements.

3. At 4 p.m. on the 24th of July, Madam Lok positively identified Dl as the man in uniform at an identification parade. Then Dl and his other accomplices made statements implicating the 2nd and 3rd applicants, whom I shall refer to as D2 and D3, who were two serving police officers at the time. Dl was then indicted together with D2 and D3 for attempted robbery. The other accomplices were given immunity to give evidence.

4. D1 pleaded guilty to the charge and he also was called to give evidence on behalf of the prosecution. At the trial the fact that there had been an attempted robbery was not seriously challenged. The only issue then was whether D2 and D3 were involved.

5. The prosecution evidence was that Dl was a police informer who was introduced in 1982 to D2 by a police constable named Poon. Near the end of April 1982 D1 met D2 again. On that occasion a further meeting was arranged to take place at the Kwong Chow Fast Food Shop. CHENG Ming-sun was also present at that further meeting. There was a discussion between Dl and D2 in which D2 asked D1 to find some 50,000 tablets of Mandrax. It was arranged again that they would meet the next day. On the next day when they met, Dl said there was no Mandrax to be found. D2 suggested that they should commit a robbery on a woman living in a bungalow in the Sai Kung area. Dl declined but D2 threatened him that D2 would reveal Dl's role as a police informer to his triad associates. On this threat Dl reluctantly agreed to carry out whatever he was instructed to do. A few days later, D2 paged D1 in a cinema and told him to wait outside the cinema. At that time Dl was together with CHENG Ming-sun. On arrival, D2 took the two of them to the Kwong Chau Fast Food Shop and handed a parcel of police uniform to Dl so that he could try it out at his home while he, D2, and Cheng waited in the Fast Food Shop. Dl found that the uniform was too big in size. D2 admitted his mistake and said that it was stolen from the Sai Kung Police Station. D2 promised that he would furnish Dl with a new set.

6. They arranged for a meeting on the 10th of May. On that day, WONG Mei-fung, one of their accomplices, hired a car. She took D1, D2 and Cheng to the Sai Kung area to carry out observation of the vicinity - the target area. Upon arrival, they found the house was guarded by a fierce dog. They changed their plan and they were driven by Wong to the Sai Kung pier area where the victim's house was. It was suggested then they meet again in the Fast Food Shop that evening where D2's friend would brief them the details to that house near the Sai Kung pier.

7. That evening D2 brought D3 with him to meet them. D3 then gave the group a sketch of the area, the address of the house, the names of the victims and their address together with their telephone number. On the morning of the 11th of May they set out to the target area. WONG Mei-fung found her car could not start. They changed the car subsequently to one with the registration number CZ 2666. She drove D1, D2, Cheng and Chong to Sai Kung area where D2 left with D1 to make telephone calls.  Two telephone calls were made. Then they went to the victim's home. Cheng and Chong went by another route. On their way to Sai Kung, D2 supplied Dl with a new set of uniform and a knife for the robbery. The sequence of events was as disclosed earlier. The robbery failed, Dl panicked and escaped.

8. There was one witness who said that he observed three persons - one in uniform ran out from victim's home. A police constable saw the car No. CZ 2666 went past around that time when he was at a road block in the Sai Kung Road.

9. There was evidence that in April 1984 four sets of Summer uniforms were issued to D2. But when D2's personal kit was inspected on the 20th of July 1984, it was found that one of the four sets of uniform supplied to him was missing. A fourth set of uniform appeared later on a routine check on the 25th of July of the same year. Upon arrest, D3 gave a cautioned statement in which he said:

"At the beginning of May I knew the said man in Canton Fast Food Shop through the introduction of my classmate KU Tin-lok. At that time we talked about the ways and means to make money. Ah Lok also said that Shek Kwai was full of guts and was smart. At that time, I disclosed some information of my friend's home in Sai Kung. After about 10 days (correct date forgotten) Ah Lok told me that his set o?ê Summer uniform was stolen by other person and requested me to help him to get another set. Upon his longwinded request, I then just took one set in the Barrack Room to give him but I did not know what kind of purpose he had. After I knew Shek Kwai, he had promised to supply me information regarding gambling and dangerous drugs and asked me to contact him. During this period, I also had tea with Ah Lok and Shek Kwai once. "

Then there was a series of answers and questions which I do not wish to repeat. That was the gist of the prosecution evidence.

10. There was no defence evidence whatsoever. In summing-up to the jury the judge put the prosecution evidence as well as points of law to the jury. Both D2 and D3 were convicted. Before us Dl applied for leave to appeal against sentence.

11. The grounds filed in support of the application was that a sentence of 8 years imposed upon D1 was excessive. It was contended that the judge failed to make an allowance for the fact that Dl had also been kept in custody for 10 months before sentence and had to give evidence in two previous abortive trials against D2 and D3. The judge failed to make an allowance for the fact that Dl was a police informer and he was acting under pressure from D2 and D3, serving police officers.

12. The third ground was that the judge had given a lesser sentence to D3 - a sentence of 7 years imprisonment even though D3 was the mastermind of the robbery, and had pleaded not guilty.

13. We have considered these grounds. We find there is merit in the argument. D1 was an 18 year old person. Admittedly he had previous criminal records. However, comparing his culpability with that of D2 and D3 there was no reason or rhyme why he should be given one more year than D3 and only 2 years less than D2 who was given a sentence of 10 years. In imposing sentence the trial judge said:

"Turning to your personal circumstances, the lst accused, you have a bad record, however even with that record you are entitled to a lesser sentence for your plea of guilty, and I must also in accordance with principle take into account as a substantial mitigating factor the cooperation you gave to the police which resulted in the 2nd and 3rd accused being arrested and clearly your evidence at the trial against them for the Crown was material.

 

        In normal circumstances having entered a private home to rob, armed with a weapon which did wound a lady victim, you would well deserve a sentence in the region of twelve years' imprisonment. After giving effect to your plea of guilty and your cooperation and your evidence as a Crown witness, I am prepared to reduce that sentence to eight years' imprisonment which is the sentence imposed on you. "

When he dealt with D3 in sentencing he said:

"I am prepared to accept your counsel, Mr. Suffiad's submission that you did not, when you participated at the meeting on the 10th May, know or reasonably expect that a weapon would be used, and I will take that into account in your favour, and I will also take into account the fact that you have appeared in three trials instead of one. However, you are not entitled to the discount that Al enjoyed for his plea of guilty and cooperation. Taking all those factors into account, I impose on you, the 3rd accused, a sentence of seven years' imprisonment. "

In imposing the sentence of 7 years it seemed that the judge had lost sight of the fact that there was a grave breach of trust on the part of a serving police officer. There was also a difference in age as well - D3 being 24 years old and D1 only 18 at the time. In the circumstances we grant D1 leave to appeal against sentence, treat the application as the appeal proper, set aside the sentence of 8 years and substitute therefor a sentence of 5 years.

14. Coming to the application for leave against conviction by D2 and D3, counsel in effect relied on two substantive grounds. The first one was that the judge in his summing-up misdirected the jury when he told them that before accepting the evidence of the accomplices who gave evidence at the trial, it was desirable for them to find independent support for their evidence. In page 20 of his summing-up the judge said:

"Now the only evidence which is capable of providing the independent support for the accomplices' evidence against the 3rd accused which I warn you is desirable for you to find before you accept the accomplices' evidence, comes from his statements', which you will have before you, Exhibits P12 and P15"

In that respect he was specifically referring to independent corroborative evidence. It might be better if he used the term "independent evidence". But he was referring specifically to corroborative evidence rather than requirement of corroboration. Having warned the jury that they should not convict unless there was independent evidence in support of the accomplices' evidence, he said (at page 16):

"In considering the evidence of those four accomplices, it is necessary for me to tell you to do so in two stages. The first stage is that you should look at the evidence of each of them and come to a conclusion whether or not you consider their evidence is credible, that is, believable. If you consider that any of the accomplice's evidence is not credible, is not believable, then you should reject that witness's evidence entirely. You may not, if you find an accomplice's evidence is not credible, go on to find some other independent evidence to support that witness's evidence to lead you to a finding of either guilt or non-guilt.

 

        So the first step is to decide if an accomplice's evidence is by itself credible or believable. And only if you come to that conclusion may you go on to see if there is other independent evidence which supports it, and might lead you to the conclusion that not only is the accomplice's evidence by itself believable but, having been strengthened by the other independent material evidence, is believed by you. "

15. In our opinion, the judge could not have been more articulate in his direction to the jury concerning accomplices' evidence. There is no reason why a trial judge in directing the jury should repeat words from other precedents like a parrot in order to comply with this requirement. There was no substance in this ground in support of the application.

16. The second complaint was that the judge misdirected the jury on facts by telling them that the prosecution had established that the fourth set of uniform which turned up in the appellant's kit was not one of the four uniforms which were issued to the appellant. At page 17 the judge said:

"Now the independent evidence which is capable of providing that desirable support is, as to the 2nd accused, in relation to the police uniforms.

 

        The accomplices' evidence was that the 2nd accused supplied a police uniform and it was not returned to the 2nd accused.

 

        Now the interesting, and at times lengthy, evidence about the uniform issued to the 2nd accused was that by April, 1984, he was issued with four summer uniforms. The offence occurred in May. When his kit was checked in July, there was one summer uniform short, one set was missing. A fourth uniform, as you now know, later appeared in his kit, but it was not, according to independent prosecution evidence, one of the four uniforms which were issued to the 2nd accused. "

Indeed, on the 20th of July the personal kit of D2 was checked and one set of his summer uniform which was issued to him in April was missing. Peculiarly enough, on the 25th of July in a routine check of the general store in the police station, his kit was opened again and in there was found a fourth set of uniform marked with the service number of another police constable. When the other police constable was called to give evidence on behalf of the prosecution, he denied that that uniform found in D2's kit, the fourth set, belonged to him. In fact there was no direct evidence as to whom that fourth set of uniform belonged. It was argued very strongly by counsel on behalf of the second applicant that that being the case, there was no proof beyond reasonable doubt that the fourth set did not belong to D2. When the judge said that there was independent prosecution evidence, the one of the four uniforms which was issued to the 2nd defendant did not belong to D2, he was wrong.

17. We are of the opinion that the relevant consideration was that, whether or not there was a set of missing uniform on the 20th of July, there was no evidence whatsoever that the fourth set which was subsequently found belonged to D2. We do not regard that as a serious misdirection of fact. Even if it were, the inescapable fact remained that on the 20th of July, 1½ months after the offence was committed, a set of D2's uniform was found missing. It was alleged by the accomplice that a set of uniform was supplied to him. We are of the opinion had there been a more accurate direction that there was no evidence that the fourth set belonged to the 2nd accused, the jury would have inevitably come to the same verdict. We do not feel that in this instance it is necessary to apply the proviso. Had it been necessary we would have no hesitation in applying it. While on this subject I must observe that it looks extremely peculiar that on the 20th of July D2 was already arrested and obviously interdicted from duty and the police were investigating an offence of which he was suspect. D2's personal kit was not carefully kept. The missing uniform by that time would be a vital evidence as far as the prosecution was concerned and the police must have had information from his accomplice that it was D2 who supplied a set of uniform to him. One would have expected his personal kit would be taken to a safe place by an evidence officer. That kit should never be left in the general store. This sort of conduct on the part of investigating officers and the fact that such a vital piece of evidence was left at large at the general store warrant an enquiry and investigation. Having made this observation we find that the two grounds of appeal have no substance.

18. The third ground that the judge misdirected the jury on the value and weight to be attached to dock identification was not pursued. Nor was there anything else pointed out on the fourth ground that the verdict was unsafe and unsatisfactory. In the circumstances the application by D2 and D3 for leave to appeal against conviction is dismissed.