THE QUEEN v. CHOI SHU WAH AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 391 OF 1985

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BETWEEN

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JUDGMENT

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Power, J.

1. We deal firstly with the application of the third defendant, who was convicted on 27th August 1985 after trial by jury before Deputy Judge Leonard on full courts : Count 2 - Robbery on the 5th April 1983, Count 3 - Attempted robbery on the 13th April 1985, Count 4 Arson also on the 13th April 1985, Count 5 - Possession of arms and ammunition without a licence, also on the 13th April 1985 and Count 6-Resisting arrest, also on the 13th April 1985.

2. He is represented by Mr. Laskey who seeks only to contest the correctness of the conviction on the 2nd count, i.e. robbery on the 5th of April 1985. The defendant himself has placed argument before the Court submitting that he was wrongly convicted on the other counts. He dealt particularly in his home made grounds of appeal with the conviction on the 5th count, possession of arms and ammunition, and the conviction on the 3rd count, attempted robbery, but it was clear that he was contesting the correctness of all of the convictions that arose out of the events of the 13th of April.

3. He did not give evidence at the trial but before us said that he had come from China on that evening and that, after walking 20 minutes, he was apprehended by the Police. The evidence at the trial was that he had participated in an attempted robbery at the home of a Mr. Kwok Shu-kau and that whey, the attempted robbery was foiled, he with others had fled into the night.

4. There was evidence from more than one witness identifying him at the scene and indicating that he had pointed a gun at persons during both the robbery and the chase. There was evidence that, when he came ashore after having hidden in a pond, he was searched by Police Officers and some golden percussion caps, a phial filled with black powder and ten pellets for an air gun were found on him. It is true that the gun was not discovered on his person. It appears that the gun used was concealed in a bag which was later recovered from the bottom of the pond. There was ample evidence upon which the jury could find him guilty of all of the charges. He gave no evidence himself and we see no ground for interfering with those convictions.

5. The 2nd count, which was argued by Mr. Laskey, depended upon the identification evidence given by the wife of the owner of the residence where the robbery occurred on the night of the 5th April. She gave evidence in which she identified the 3rd defendant and told how on that evening she had had an opportunity to have a very short look at the faces of one or taro persons who entered the residence intending to rob. Her opportunity to see the person, whom she later identified as the third defendant, was made in difficult circumstances and in poor lighting. It was evidence of a kind that must be scrutinized with the utmost care.

6. The trial judge was clearly concerned at the quality of the evidence and was careful to direct the Jury in accordance with the guidelines in R. v. Turnbull (1976) 3 All E.R. 549. His direction in this regard was faultless. However, having given that direction, he told the Jury that they might well think that the observation of Defence Counsel, who said that this was "a situation of a fleeting glimpse" was "a fair description". It seems clear that the judge accepted that there had only been a fleeting glimpse by Madam Lai which had taken place in difficult conditions.

7. The complaint that has been very succinctly urged before us by Mr. Laskey is not that the direction to the Jury was not a proper and full one but that, given the acceptance by the judge that it was a fleeting glimpse in difficult conditions, the matter should not have been left to the Jury. He refers us to the summary of Turnbull, which is contained in Archbold, at p.1000, and emphasizes, particularly,  these words -

"When, in the judgment of the judge, the quality of the identifying evidence was poor, as for example when it depended solely on a fleeting glance or on a longer observation made in difficult conditions, the situation was very different. The judge should then withdraw the case from the jury and direct an acquittal unless there was other evidence which went to support the correctness of the identification evidence."

He submits that there was no other evidence going to support the identification evidence and Mr. McCoy, for the Crown, very fairly admits that this is so. Mr. McCoy suggests, however, that Turnbull is not a statute and does not bind Court in a cast-iron way. This may be so but we are satisfied, the judge having accepted that the identifying witness did only have a fleeting glimpse and having accepted that the fleeting glimpse was in difficult condition, that this case fell squarely within the Turnbull guidelines and should, therefore, have been withdrawn from the Jury. We are satisfied that this was a material irregularity by reason of which the conviction was unsafe and unsatisfactory. Leave to appeal against conviction will be given and the conviction will be quashed.

8. We now turn to the matter of sentence, the 1st defendant appeals against the sentences which were imposed upon him on Count 3 of twelve years and Count 4 of five years which were ordered to run concurrently. These counts were the attempted robbery count and the arson. The 3rd defendant appeals against the sentences imposed on him on those two counts of fifteen years and seven years respectively, on the 5th count, for possession of fire arms without a licence, of ten years and on the 6th count, for resisting arrest, of three months.

9. As we have already indicated, all of these offences arose out of an incident that occurred at an isolated residence at Lok Ma Chau in the New Territories on the 13th April 1985. It seems clear from the evidence that the group of men, which included the two applicants, set out to rob the inhabitants of the residence on that evening.

10. It is suggested by Mr. Payne, who appears for the 1st defendant, that the motives may have been mixed. This may be so. There was, perhaps, an intention to revenge an injury which the 3rd defendant thought he had suffered as well as an intention to rob but it seems to us that this can hardly be urged as a mitigating circumstance. The intention to revenge was an intention to terrorise these New Territories villagers who had done what the authorities urge them to do, i.e. report the presence of illegal immigrants. Indeed it might be suggested that this was worse than the intention to rob. Whether or not the motives were mixed.the offences were serious ones and, even if they were not carried out, as Mr. Payne has asked us to bear in mind, by a gang of professional criminals, they were carried out with a degree of professionalism insofar as the telephone lines were out before an approach was made to the residence, the inhabitants were threatened and money immediately demanded under the terrible threat of arson.

11. It seems probable that it was only the timely arrival of neighbours which caused the culprits to flee after setting fire to the residence. It is true, as Mr. Payne had urged, that the weapons, one of which was used by the third defendant, were not conventional revolvers; nonetheless, Mr. Cimino, the Ballistics expert, said that they could be lethal up to a distance of over 100 meters and we know that one of them was discharged.

12. We bear in mind that first defendant did not carry a weapon, that he was a man of previous good character and that he was not the ring leader. We cannot, however, help but observe that all of these things must have been in the mind of the judge when he imposed sentence. It seems to us to add nothing to the matter to say that no one was hurt. This was fortuitous rather than because of any merciful intention on the part of the offenders.

13. It is of concern to this court that the 3rd defendant was sentenced to 15 years imprisonment for the attempted robbery charge upon a totality basis which took into account the other offence of  robbery. We have to arrive at an assessment of the proper sentence, given that the conviction for the earlier robbery has now been quashed. We must deal with the attempted robbery, as we have already indicated, upon the basis that it was a very serious offence. It was at night, it was in company, the robbers.were armed and it was accompanied by arson, threatened and executed, in an endeavour to force the occupants to succumb to the demands for money. Further, the third applicant was the ring leader and he carried a gun. In all the circumstances, we are satisfied that a proper sentence on that charge for the 3rd applicant would have been twelve years. The sentence of 15 years that was originally imposed will be varied to one of twelve.

14. We turn to an assessment as to the proper sentence to be imposed upon the first applicant. We bear in mind that he was not the ring-leader and that he did not carry a gun. Clearly it would not be proper in the circumstances to impose sentences of the same length on the 1st and the 3rd applicants. We are satisfied that the sentence of twelve years should be varied to one of 9 years. The first applicant is sentenced to nine years imprisonment on the attempted robbery charge. We do not consider that there is any ground for interfering with any of the other sentences. To this extent both the applications for leave to appeal against sentence and the substantive appeals are allowed.