R v. LEE CHEUK HO AND ANOTHER

IN THE COURT OF APPEAL

1994, No.658

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court) :

These two applicants were convicted on 14 December 1994 before Deputy Judge Wesley Wong and a jury of two offences, one of robbery and one of possession of an imitation firearm in the course of that robbery. On the following day, Lee Cheuk-ho was sentenced to 8 years and 10 years imprisonment concurrent and Siu Tat-yuen was sentenced to 8 years and 9 years imprisonment concurrent. They apply for leave to appeal against their convictions.

The facts

1. At about 10:00 pm on 6 January 1994 the two victims were in their moulding factory on the 4th Floor of a factory building in Kwun Tong. Suddenly three men rushed in. One had an imitation firearm and another had a knife. The victims were assaulted. They were bound hand and foot. The property in the charge which included about $800 in cash, some bank cards, a wristwatch, a pen and 18 compact discs were taken.

2. The three in the premises did not include the 2nd applicant, Siu Tat-yuen. The 1st applicant was the one who was said to be carrying the knife. When the three got downstairs, near the caretaker's desk, they left together.

3. The 2nd applicant had been waiting downstairs. He had asked the caretaker to raise the gate and keep it open whereas it was his duty to close the gate at 10 o'clock. When the three were leaving he assisted them to leave by pushing the gate up. The four of them then ran away in different directions.

4. In the street, there were two policemen. One gave evidence and said that he saw men running, he shouted to them to stop but they did not do so. He chased and caught one of them. It was the 1st applicant. Later all the property which had been taken was found in the street.

5. In the meantime, the victim PW1 Chan Hok-yu had freed himself as soon as the robbers left. He went to the balcony and shouted "robbery". It would appear that when he shouted robbery, all four robbers were leaving the building. Chan Hok-yu, went into the street and he recognised the 1st applicant in police custody as the robber in the white shirt.

The 1st Applicant's case

6. The evidence at trial against the 1st applicant consisted therefore of the identification by the victim together with the evidence of the police officer who had seen him with the others running away from the building immediately after the robbery. At trial, therefore, it was a matter of concern to the judge to direct the jury carefully about the identification evidence. In the summing-up, he did so properly and with care. He directed the jury of the dangers of identification evidence. He reminded them of the victims' identification and his opportunity of observing the applicant at the time of the robbery. The victim said that he was able to see him in good light at a short distance for a period of about 5 minutes. The judge also reminded the jury that the applicant was picked out when he was already handcuffed in police custody, and therefore was an obvious person to pick out. He spoke of the street lighting at the place where the officers had arrested the applicant saying that there was less lighting there from a hording and a construction site. He summarised the points made by defence counsel.

7. In his application for leave, this applicant relies upon the difference between the victim's evidence that he was wearing a white shirt and the police officers evidence that he was wearing a yellow shirt. He relies upon the lighting, the time element and the fact that he was already handcuffed by the police when he was picked out. All the matters he raised - no doubt good points in front of the jury - were dealt with some care by the judge. There is no merit in raising them before this court. The summing-up in this respect was impeccable.

8. The applicant also contends that at his trial he was represented by counsel who did not pursue his defence in accordance with his duty. An exchange had taken place between counsel and himself in the course of the trial, when Counsel had indicated for reasons not disclosed that he may not be able to continue representing him. But a reading of the summing-up demonstrates that this applicant was fully and properly represented by counsel. It is clear that every point that could be made by counsel on this applicant's behalf was taken. This court has no doubt that the applicant was properly represented and properly defended. All the matters which ought fairly to have been put in front of the jury were put in front of them. He had perfectly fair trial and the jury convicted. There is no merit in his application. It is dismissed.

The 2nd Applicant's case

9. Turning to the 2nd applicant. The evidence against him consisted of his confession statement under caution and the evidence of the caretaker at the ground floor of the building. His statement can be summarised : he said that he did not rob, he simply waited for the robbers downstairs; he described how after a game of poker four persons including himself had come to this factory building in order to rob and he knew that the other three had gone upstairs to rob the factory at which he had previously been employed and which they thought might contain valuables because the proprietors were rich. Further, he knew that a fake gun and a small knife had been carried by the others although it is fair to say that he only saw the fake gun. That can be no doubt that he knew three others went to commit the robbery and generally the way they committed it. He said that he did not go with them because he had too much to drink and he had been asked by the others to wait for them downstairs.

10. The evidence of the caretaker showed that this applicant was walking to and fro in the lobby waiting for the others. It is right to say that under cross-examination that witness changed and embellished his evidence. Also it was shown that he had given statements which did not accord with his earlier evidence. In part of his evidence, he said that whereas it was his duty to close the gate at 10 a.m., he had been asked by the applicant to keep the gate open. That was in circumstances where the applicant knew that his friends upstairs were robbing and would want to leave in a hurry. When they did leave in a hurry according to the caretaker the 2nd applicant assisted the opening of the gate and then ran away at the same time as the others.

11. The question is therefore whether that evidence if accepted by the jury was sufficient for them to convict him of being a party to the robbery and the possession of the gun.

12. Mr Murray submits first that the judge failed to direct the jury properly on what had to be proved for them to find that this applicant was a party to the robbery. He complains, putting it shortly, that he failed to give the jury full directions concerning his presence, his knowledge of the robbery and whether or not he intended to encourage or assist the robbers if required.

13. The main criticism is directed at the passage where the judge said :

"Chan Mei-fuk, the caretaker, the 2nd witness, said that he lifted the gate for the other three to get away and then they ran away together, if you believe that and found it as a fact, then he would be part of the robbery"

14. Mr Murray's criticism is that the direction leaves out of account the mens rea of the offence.

15. There is more than one passage in the summing-up which deals with joint enterprise but not specifically in relation to this applicant. There is however a passage at page 21D-J where the judge refers to this matter again. He said:

"After having carefully considered the evidence of CHAN Mei-fuk and the cautioned statement, if you are satisfied beyond reasonable doubt that D2 was there on the ground floor for the purpose of aiding and abetting the robbery then you should find him guilty of the first charge, that is the robbery. If you are in doubt then you should acquit him on both charges."

16. So the question is this : On the particular facts of this case, is it sufficient to direct the jury that if they are to convict they must be satisfied so that they are sure that this applicant was present downstairs knowing the robbery was being committed and there intending to assist if required or to encourage the commission of the robbery? This is not a matter which can be addressed at any great length. The judge encapsulated the issue in relation to the facts when he said, "if you believed that (meaning that he lifted the gate for the three to get away) then the applicant would be part of the robbery." Read on its own the encapsulation may be too brief but reading the whole of the summing-up and bearing in mind the particular facts the jury cannot have been in any doubt as to what they had to find in order to convict. The direction is sufficient when the summing-up is looked at as a whole.

17. Next matter relied upon by Mr Murray is that the judge ought to have dealt in more detail with the evidence of the caretaker. He referred to this evidence quite briefly in these words:

"However you have heard the cross-examination by Mr Murray and you may have formed the view that he was muddled up (i.e. the caretaker) and his evidence is confusing, but can you accept his evidence without doubt, or can you accept part of his evidence, and which part of his evidence can you accept as the truth, or whether you will reject the whole of the evidence is a matter entirely for you?"

18. This trial was very short. The evidence of this witness was obviously fresh in the jury's mind. The judge was quite right, it may be thought, to refer to Mr Murray's cross-examination. This cross-examination undoubtedly demonstrated many criticisms which can be made of this witnesses' evidence. But these matters are eminently matters for the jury to consider when applying the direction that the judge rightly gave them. They could accept that evidence or part of it and what they accepted and what they rejected was a matter entirely for them. It is not part of a judge's duty to remind the jury in great detail about the evidence provided that he brings to the jury's mind the issues and problems which they have to consider. In our judgment, that is just what the judge did.

19. We turn now to the final matter. This relates to the confession statement about which the judge said:

"A statement which contains an admission is always admissible as a declaration against interest and is evidence of the facts admitted with this exception, a statement made by an accused person is never evidence of the facts in the statement.

A statement that is not an admission is admissible to show the attitude of the accused at the time when he made it, and the admissions can only incriminate the maker but not any other person mentioned in it."

20. The criticism advanced is that this statement is a mixed-statement because it contains both inculpatory and exculpatory passages. The submission is that the judge ought in those circumstances to have given the jury the classic direction of which the best example is to be found in R. v. Duncan 73 Cr. App. Rs. 359 at page 365.

21. The question is whether it was necessary for the judge to give that direction. The answer is plainly no, because the important parts of this statement were not exculpatory but were inculpatory. The other parts were neutral. It was never suggested that this applicant had been upstairs actually committing the robbery in the sense of threatening the victims and taking the property. There was no suggestion of that. The importance of this statement both for and against the applicant is the limited nature of the admissions he made. With great respect to an attractively advanced argument by Mr Murray, there is no merit in his submission.

22. In the result the 2nd applicant's application for leave to appeal against conviction is refused.

The 2nd Applicant's Application on Sentence

23. Finally, the 2nd applicant applies for leave to appeal against his sentence. He points out that the 2nd accused, Tsui Wai-kuen, who pleaded guilty to the robbery - but not the firearms offence - received only 6 years imprisonment. He advances this as a disparity in the sentences. It is only requires us to point out that Tsui Wai-kuen pleaded guilty and received the credit that every accused is entitled to receive for a plea of guilty and the remorse which accompanies it to demonstrate that his sentence is entirely consistent with the sentence passed upon this applicant. It is true that this applicant stayed downstairs and did not go near the victims himself. However, from the part that he played downstairs assisting in this offence, it is clear that he knew well enough that the intention of those robbing was at the least to use the fake gun. The sentence passed upon him - although on the high side - is not one which was manifestly excessive and is not one with which this court is entitled to interfere. The application is refused.