THE QUEEN v. HO MAN KUEN AND OTHERS

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the Court):

1. On 23 June 1988 Lui Chun Keung (D3) and Cheah Kok Chuen (D4) were convicted of robbery in the High Court (Deputy Judge Daniell and a jury). They were sentenced respectively to 15 years and 12 years?imprisonment. A third man, Ho Man Kuen (D2) pleaded guilty to the same robbery and was sentenced to 8 years' imprisonment.

2. D3 and D4 seek leave to appeal against their convictions. D2 seeks leave to appeal against the sentence imposed upon him. We allowed D3 to an application out of time for leave to appeal against sentence. D4's application for leave to appeal against conviction has been adjourned.

3. The case for the prosecution was that at about 9:30 a.m. on 23 September 1987 the three applicants, one of whom was armed with a pistol-like object, intercepted two security guards as they walked from the office of the shroff in the Transport Department Licensing Office in Murray Road towards the exit to the street. The security guard who was carrying a shotgun had the imitation pistol pointed to his head and the shotgun was taken away from him. The other security guard was knocked to the floor and dropped the cash box he was carrying. The robbers made away with the cash box which contained $556,379 in cash and 774 cheques made out a total of $7,378,792.

4. The only evidence against D3 was the two statements he made to the police on the day of his arrest on 9 October 1987. The admissibility of these statements were challenged but they were admitted in evidence after a voir dire. About the second statement, the judge correctly told the jury this:

"That statement, if you accept it as true, could hardly be more damning. It amounts to a full and detailed confession of [his] participation in the robbery charge."

5. D3 did not give evidence in the trial proper and called no witnesses. His complaints before us mainly concerned the admission and treatment of his confessional statement. It was a matter for the judge to decide after hearing evidence on the voir dire whether he should properly admit the confessions into evidence or riot. We are not able to say that he erred in deciding to do so.

6. As to the matters D3 has raised before us about the contents of these statements, the judge went into all of them very carefully with the jury, as he was bound to do, and he made it quite clear to the jury that the probative value and effect of the statements was a matter entirely for them. I will read one passage from the summing up which indicates this. When speaking about the allegations that D3 had been bullied, assaulted and forced to sign the statements the judge said:

"Now, members of the jury, if you find this to be true, or even if you think it might be true, or if you have any doubt about the reliability of those statements, then that would be the end of the Crown's case against [D3] because there is no other sufficient evidence against him."

7. D3 also drew our attention to the fact that in his statement, made on 9 October 1987 in answer to the questions put to him by a police officer it was recorded that he had mentioned his pager giving its number and had given the pager's number to a man called Wu So Man "several days before a week before the robbery". D3 pointed out that the evidence before the court made it quite plain that the pager with that number had not come into his hands by that time indicating that the statement must be untrue. The judge very carefully addressed the jury on this matter too. He reviewed the evidence about the pager to the jury and then left the matter in the jury's hands with these words:

" Do you think, members of the jury, that these officers have wickedly concocted these confessional statements? Have they, by using material from other sources such as statements and documents, fabricated these confessions, mentioning the pager and its number to lend a ring of truth to what is in fact a false statement?

If you think this or anything like it possibly happened, then you would reject altogether the evidence relating to the confessions. Or, members of the jury, do you think that sergeant FONG honestly and accurately recorded what was said to him by [D3], be it true or be it false?"

8. In our judgment, there, are no merits in any of the grounds of appeal urged upon us by D3. The summing up was full, accurate and fair. D3's conviction cannot be assailed and his application for leave to appeal against conviction is, therefore, refused.

9. We have carefully considered the reasons the learned judge gave when passing sentence and the grounds urged upon us by D2 in person and by Mr. Grounds on behalf of D3 and we feel unable to say that the sentence on either of the Applicants was in any way excessive. Their applications for leave to appeal against sentence are refused.