HKSAR v. CHENG KAM FAI AND ANOTHER

CACC 263/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 263 OF 2001

(ON APPEAL FROM HCCC 379 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 18 July 2001, following a trial before V. Bokhary J and a jury, the Applicants (D1 and D2 respectively) were convicted of conspiracy to rob, contrary to section 159A of the Crimes Ordinance, Cap. 200, and section 10 of the Theft Ordinance, Cap. 210. They now seek leave to appeal against conviction.

The facts

2. The facts were straightforward.

3. Dr Yeung Chak-ming (PW1), a doctor who practised from a surgery in Nathan Road, found himself becoming increasingly alarmed at a number of unusual incidents affecting his daily life during July 2000. In particular, he noticed that a car, with the registration number JM 755, had begun to follow him when he was in his own vehicle.

4. Eventually, police were informed and, on 3 August 2000, they carried out surveillance from an unmarked vehicle on PW1's car while it was parked at the Baptist Hospital. At approximately 7.30 p.m., D2 came up to PW1's car and looked inside it. He then made a telephone call and left the car park. Shortly afterwards, at about 7.53 p.m., PW1 drove out of the car park and almost immediately the police noticed that it was tailed by the vehicle, JM 755, which had been positioned in a lay-by just outside. PW1 was given instructions by the police over his telephone as a result of which he drove into Dunbar Road where he was then living. In fact, JM 755 had been driven into that road slightly ahead of PW1's car, as if anticipating where PW1 would be going. Having driven in, D2 got out of JM 755 in Dunbar Road and in due course watched PW1 going into a building. JM 755 then reappeared in Dunbar Road where it parked a few spaces away from PW1's car. D2 was then seen to get back into that vehicle.

5. Police at the scene summoned further officers to Dunbar Road. At 8.00 p.m., JM 755 was "sandwiched" by two police vehicles to prevent any escape by its occupants and D1 and D2 were arrested while inside the vehicle sitting in the driver's seat and the front passenger seat respectively.

6. A search of JM 755 revealed a plastic toy pistol in the front passenger door pocket, and a roll of brown adhesive tape together with two crudely made hoax bombs were found lying on the front passenger floor space. Two pairs of cotton gloves were found in the driver's door pocket and a further plastic toy pistol was discovered in the boot. Bomb experts were called. The two suspect devices were x-rayed. This revealed that they were innocuous. Today, we have had the advantage of looking at photographs of what may be called the 'robber's kit', and it was apparent that both the guns and even the hoax bombs have a superficially realistic appearance to them.

7. On arrest, D1 admitted that he was there to rob PW1. D2 remained silent at that time.

8. In later video-recorded interviews, D1, after considerable prevarication, made copious admissions as to his involvement with D2 in a conspiracy to rob PW1. He said that JM 755 had been rented by him at a daily rate of $400. He also admitted responsibility for making a hoax bomb, using a paper roll filled with sand and sealed with tape. These bombs were apparently intended to scare their potential victim although D1 said that he had decided not to use them as they did not look realistic enough. He said that D2 was the only other person involved in this plan to commit robbery.

9. D2 also confessed to the conspiracy in a video-recorded interview at the police station, saying that he had applied the glue which was found on his fingertips to avoid leaving his fingerprints at the scene of the robbery. He said that he had no wish to harm anybody. He also admitted to making a hoax bomb but said that as such items might be psychologically damaging to the victim, the plan to use them to frighten was abandoned. All that was contemplated was to drive around and point a gun at their targeted victim in his car in order to try to obtain cash from him.

Defence case

10. Neither D1 nor D2 gave evidence. However, called on behalf of D1 were his lawyer, his aunt and his mother in what was effectively a regurgitation of what had been adduced in a voir dire earlier. This had taken fourteen days in all, an extraordinary length of time bearing in mind the comparatively uncomplicated nature of the case, and had resulted in a ruling by the judge, before the jury was sworn, that all of the alleged confessions, with the exception of a few parts where there was some minor editing, should be admitted into evidence.

The application

11. With this background, Mr Grounds had, until today, apparently intended to advance on behalf of the Applicants three substantive grounds of appeal. His overall submission, when inviting us to consider these grounds, was that, despite the compelling nature of the evidence apparently accepted by the jury, which, without any exaggeration, can only be described as overwhelming, the verdicts were unsafe and unsatisfactory.

12. However, when proceedings commenced, Mr Grounds announced, without prior warning to anyone, that he was not seeking to pursue his first ground of appeal. This discourtesy was compounded by the fact that only yesterday the Applicants' solicitors had been in touch with the court to notify the abandonment by both Applicants of their applications for leave to appeal against sentence.

13. The abandoned first ground should, as it happens, never have been drafted in the first place.

14. In the first remaining ground, reading from the perfected grounds of appeal using the words drafted by Mr Grounds, it was submitted that the judge had:

"erred in law in that she misdirected the jury in the use they could put as to the use of demeanour of the Appellants in the videotaped interviews (transcript 51 G-L)."

15. We can say at the outset that we feel compelled to say that this had no merit of any kind. The judge's directions on the law and as to the facts were meticulous in their accuracy, and the direction given to jury on this aspect of the law was no exception. The judge said (in the passage criticised by Mr Grounds):

"As to the reliability of the out-of-court admissions, what you have for the purpose of deciding whether you are sure that they are true includes, in the case of each accused, his demeanour as it appears from the videotapes which you have seen. You are entitled to take that into account in deciding whether the interviews were, as the officers said, proper interviews not preceded by impropriety. Do you doubt that? Or are you sure that each interview is genuine?" (Transcript p. 51 G-J)

16. This was a perfectly proper direction. Demeanour, as Mr Grounds accepted, despite the misleading words he had used in this perfected ground of appeal, was a matter which the jury obviously was entitled to consider. By way of very simple illustration of the point, that is why the camera in such interviews is placed in a position which enables the suspect being questioned to be seen clearly, just as the witness box is situated immediately in front of the jury in every court in this building to give the clearest possible vision to those who have to make an assessment of witnesses.

17. It is for the jury to determine the importance of demeanour, and the judge was right to have pointed out to them, on the issue of who they should believe, that they were entitled to take this into account.

18. We are, of course, fully aware of the decision in R v Ng Wing-ming [1994] 2 HKC 464 where at 465 Litton JA (as he then was) spoke of demeanour as a "notoriously uncertain guide to the truth". He went on to say that:

"The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth. Demeanour could only be a point of last resort".

19. Ng Wing-ming was an appeal from the District Court where the trial judge had recorded her observations about the applicant's demeanour without, apparently, sufficiently looking at other materially important aspects of the evidence. This led to a conclusion, expressed by Litton JA later in the judgment at 468, that:

"In our view, the judge had relied too heavily on her own subjective assessment of demeanour and had not sufficiently weighed in the scales the inherent probabilities of the case."

20. The judgment in Ng Wing-ming is a far cry from saying, as Mr Grounds appeared to be suggesting when using that case in support of his argument, that the judge's direction in the present case was misplaced, albeit, in saying this, Mr Grounds had argued that the real mischief lay in the judge's failure to warn the jury as to the shortcomings of evidence concerning 'demeanour' before they placed any reliance upon it.

21. As every jurist with criminal experience should be aware, demeanour may play an important part in the decision reached by a jury or by a judge or magistrate sitting alone. It is not possible to generalise or to be too dogmatic as to its precise importance because, as so often is the position, this will entirely depend on a consideration of the circumstances of each individual case. In the present case, the judge had merely pointed out to the jury that they were entitled to look at the demeanour of D1 and D2 as a factor they could take into account in deciding whether, as the judge helpfully expressed it: "the interviews were ........... proper interviews not preceded by impropriety". Defence cross-examination, as the judge more than once reminded the jury in the course of a detailed account in her summing up, had suggested that the answers given by the Applicants were the direct result of grave improprieties on the part of the police and that the improper conduct of police was followed by the Applicants being coached as to what they should say. There was no requirement, although she could not have been criticised had she chosen to do so, for the judge to add words of caution about the jury's approach to demeanour in what was throughout a most balanced summing up setting out the issues, as clearly as they could have been, for the jury's determination.

22. This ground had no substance whatever.

23. In the only remaining ground, Mr Grounds contended that the exhibits found in the vehicle, JM 755, were not necessarily supportive of the admissions made by the Applicants that they were engaged on a plan to rob someone. He contended that the judge had: "erred in law in that she failed to alert the jury to or to warn them of the danger that the fact that these items of supporting evidence could be dangerous red-herrings since if they were in the car JM 755 for innocent reasons ...." the jury might have applied "false logic" to the use of those items or "over-valued their importance and thereby incorrectly and wrongly evaluated the evidence and the witnesses."

24. We do not propose to say more about this ground than to point to the fact that the evidence before the jury had revealed no innocent reason which was credible for possessing the "supporting evidence", in the form of a robber's kit. In saying this, we have not overlooked the suggestion by Mr Grounds in the course of today's proceedings that perhaps the robber's kit might have been left in the rented vehicle, JM 755, by someone who had previously rented the vehicle. We note, however, that at trial it was hinted by D1's mother that she had seen guns, similar to those found in JM 755, in the possession of her nephews. This was supported by D1's aunt who gave a similar account.

25. Of course the kit was neither confined to guns nor to one area of the car. It included a form of tape which is commonly encountered in cases of this kind, used by robbers to gag their victims or to tie them up. There were two apparently brand new pairs of gloves judging from the photographs we have seen and two hoax bombs. We have also not overlooked the fact that D2 had glue on his fingertips, allegedly to prevent traces of his fingerprints being left behind. This was a matter which, again, was covered by one of the witnesses called by the defence who suggested that D2 had been at home trying to glue something together and that this may have accounted for the glue found on his hands.

26. The second ground of appeal which was advanced is devoid of merit.

Conclusion

27. Neither in combination nor individually have we been given the slightest ground for interfering with the jury's verdicts and the applications are dismissed.

28. In view of the total lack of any merit in these applications, we propose to order that three months of the period spent in custody by each of the Applicants shall not be counted towards the sentences they are presently serving. We make this order under section 83W of the Criminal Procedure Ordinance, Cap. 221.