THE QUEEN v. YAU SHING POR AND ANOTHER

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Yau Shiny Por - "the applicant" - and Ho King Wing- "D2" - were jointly tried before His Honour Judge Corcoran sitting as a Deputy Judge of the High Court upon an indictment containing six counts. Of those counts, the first, attempted robbery;, the second, possession of a firearm at the time of committing an attempted robbery; the third, wounding with intent to disable; and the sixth, possession of firearms without a licence, related solely to the applicant.

2. The fourth and the fifth counts, robbery and possession of a firearm at the time of committing a robbery related solely to D2. The applicant was convicted after trial of the first, second and sixth counts and surprisingly, found not guilty of count 3. He was sentenced respectively to 20 years' imprisonment, 10 years' imprisonment and 8 years' imprisonment, the sentences to run concurrently. He now seeks leave to appeal against those convictions and, if necessary, the sentences.

3. D2 was convicted on the fourth and fifth counts but we are no longer concerned with him, he having abandoned his application in respect of the conviction and having had his appeal in relation to sentence allowed on an earlier date.

4. The indictment upon which the two defendants were tried was entitled "Revised Amended". What had happened was this. The original indictment contained the names of four accused and a number of relevant counts, that which became the sixth count on the Revised indictment was originally a joint count in respect of both the applicant and D2. Prior to the empaneling of the Jury, voir dires were held in respect of a number of cautioned statements. As the result of those trials within a trial the statements were not admitted. The other two defendants fell out of the picture and the original indictment was revised as we have indicated.

5. The offences concerning the applicant were stated to have occurred on the 25th of March 1988 on board a route no. 8 bus at or near 12 Gillies Road in Kowloon. He was alleged to have committed the attempted robbery together with a named person, So Chi Ping, and others and it was of one Manak Chand Agarwal. The applicant was said to have had in his possession a converted Chinese "Seagull" brand starting pistol, and that he unlawfully and maliciously wounded Manak Chand Agarwal with intent to disable him. The sixth count in its particulars referred to the 15th day of April 1988 at No. 3, Cedar Street, 5th floor, Kowloon, and the possession was of a converted Chinese "Seagull" brand starting pistol. This without a licence. The 15th of April. was the day upon which the applicant was arrested.

6. The two counts which involved D2 were alleged to have taken place on 11th April 1988 at the Hoi Wai Steam Finger Cure Centre in Portland Street, Kowloon when he, with a named person, Ng Chi Wai, and another unknown, committed a robbery in the course he was in possession of a converted Chinese "Seagull" starting pistol.

7. The only obvious connection between the two defendants at the time of trial was that they had both been arrested on the same day, D2 on the ground floor of the premises which contained the room in which the applicant was arrested and the gun found. Also found on top of the toilet cistern which contained the gun was an identity card of one Miss Chan, a victim in the 11th April Robbery.

8. It can be readily seen that there was no evidential connection in the two sets of offences as between the applicant and D2.

9. The evidence relating to counts concerning the. applicant was that on the 25th March a bus came to a halt at the bus stop close to No. 12, Gillies Avenue. This was noticed by two men working in a nearby metal shop. The driver of the bus said he came to a normal halt, one of the men in the shop, PW4 Mr. Hung, thought the stop to be so abrupt as to call it to his attention.

10. There was a struggle inside the bus between two, or three or four, persons. The numerous bus passengers left the bus in two separate groups.  They numbered between thirty and fifty people. After they had left, though some passengers remained squatting on the lower deck floor, the struggle continued at the rear of the loser deck of this double decker bus. This for a short period. Then two men left the bus. They separated and went in different directions with one described as "sauntering" past the shop where Mr. Hung and his fellow employee, Mr. Tsoi, were. Mr. Hung subsequently identified the sauntering man as the applicant. Immediately after that the man referred to throughout as the "Indian gentleman", for - and this is important - he did not give evidence, left the bus carrying a bay. He was wounded. He was taken to hospital and it was an admitted fact that on examination, he was shown to be injured by metallic bodies over his face and chest which resulted in facial and chest injuries. He was eventually discharged from hospital on the 3rd April.

11. The situation generally on the bus was described as very confused and neither Mr. Tsoi nor Mr. Hung could say precisely who was doing what inside that bus.

12. The defence case was, in effect, never mind about the attempted robbery we know nothing about it; we only came to Hong Kong, illegally, on 1st April; the identification was a mistaken one. Mr. Shaw, who appeared for the applicant below hoped, we are informed, to reinforce what he considered to be the weakness of the identification by making use of what he considered to be an equally weak identification in the robbery concerning D2. It is a little difficult to understand, at this remove, this particular tactic. However, it influenced Mr. Shaw in the manner in which he conducted the defence and in his acceptance of the joinder in indictment of the counts against both the applicant and D2.

13. There were produced photographs of what was said to be Mr. Agarwal’s bag and its contents - this by agreement and only this.

14. Miss Crebbin then went on to describe the contents as being precious stones.

15. While a great deal of the evidence that was led by the Crown was uncontested the essential facts still needed to be strictly proved. In the absence of Mr. Agarwal had a formal admission been obtained, under the provision of section 65C of the Criminal Procedure Ordinance, that an attempted robbery had taken place and its details all might have been well.  But it was not. Again we can understand the attitude adopted by Miss Crebbin, for even the trial judge in his summing up made reference to Mr. Shaw's saying that "obviously there had been an attempted robbery".

16. The trial judge was fully alive to the dangers of the, indictment as it stood and raised the issue with counsel. Miss Crebbin told him that counsel had discussed this both in relation to the original indictment and then subsequent to the Revised indictment being presented. He was told that the Crown could not prove that the pistol found on 15th April was the same one as was used in the robbery on 25th march. Both counsel appearing for the defence, and the defendants were separately represented, agreed with Miss Crebbin that the matter of severance was an issue to be raised by the defence. Both stated that they were happy that the proceedings should continue on foot of the Revised indictment. In his summing up, the trial judge gave very clear and explicit directions,, and there is no criticism of any kind levelled at the contents of the summing up, to the jury to treat both sets of offences separately. This he emphasised by telling the jury they they were two separate incidents which could have been tried separately.

17. Although the judge was worried by the indictment as it stood, it would have been very difficult for him to have, on his own motion, severed the counts concerning D2 from those concerning the applicant in the light of desire of counsel to continue with the indictment as it stood. The Judge could not know what the defence tactics were and he may well have felt, rightly, that it was not for him to usurp the functions of defence counsel.

18. Clearly, Miss Crebbin was understandably influenced by the attitude of the defence. She opened as if Mr. Agarwal were present and would give evidence. She said this:

"On 25th March this year Mr. Agarwal, an Indian involved in the jewellery business, went to meet various potential customers in the Tsim Sha Tsui area. At 11.45 in the morning approximately, he boarded a number 8 double decker bus at Ma Tau Wai Road and at this stage he had a handbag with him containing thousands of dollars worth of precious stones all wrapped in small packets. Mr. Agarwal sat at the rear lower part of the bus.

During the bus journey, two Chinese males or at least two Chinese males suddenly rushed up and tried to snatch the handbag away from him."

19. The majority of those assertions were not borne out by evidence subsequently lead in the course of the trial.

20. We were also informed, in the course of this hearing, that it was known before the Crown's opening that Mr. Agarwal would not be in Hong Kong to give evidence. With respect to Miss Crebbin, and we impute no impropriety of any kind to her, opening in this fashion was a dangerous tactic.

21. In his grounds of appeal Mr. Alderdice has raised all these issues, some of them, perhaps, indirectly.  Mr. Cross, QC, with him Mr. Cheung, did not accept the joinder was a material irregularity though he does accept that there was an irregularity. In the light of that concession Mr. Alderdice has not pressed the matter. We agree that it was unwise to proceed on the Revised indictment. But we accept that this was basically at the behest of counsel and that the trial judge had given the jury explicit directions in connection with it. This ground alone would not have been sufficient to allow this appeal.

22. But the matter which is of greater moment is the absence of direct admissible evidence that there was an attempted robbery. It could only be surmise. Mr. Cross again, and very fairly, concedes that had a submission of no case been made then it must have succeeded; this in respect of counts one and two. We agree with him.

23. Count 6, that is possession of a firearm on 15th April is not affected. There was evidence capable of belief that the gun was in the possession of the applicant. In his evidence he gave an explanation which the Jury clearly disbelieved. They were entitled to come to the conclusion they did.

24. In connection with count two, that is possession of a firearm in the course of the robbery with intent to disable, Mr. Cross has asked us to substitute a conviction of simple possession of a firearm under section 13 of the Firearms and Explosions Ordinance. This we refused to do because of the general lack of evidence of what precisely took place on the bus. No one was seen with a firearm at the scene though there is the clearest inference that one was discharged.

25. In the event, we granted leave, treated the hearing as the nearing of the appeal and gave leave in respect of the convictions on the counts one and two. We set aside those convictions and quashed the sentences.

26. The conviction in respect of the sixth count gave us no cause for concern and the application in respect of that was refused.

27. There was also an application to appeal against sentence but this was, when we indicated one decision in respect of the convictions, and on the good advice of Mr. Alderdice, sought to be abandoned. We gave leave.