WONG CHI MING v. R.

IN THE COURT OF APPEAL

1991, No. 585
(Criminal)

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J U D G M E N T

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Wong, J :

1. The applicant was convicted before His Honour Judge Hartman in the District Court of two charges of robbery and one charge of theft. He was sentenced to concurrent prison sentences of 7 years' imprisonment on each of the two robbery charges and six months' imprisonment on the charge of theft. The sentence of 7 years is the maximum term of imprisonment a District Court Judge has jurisdiction to impose. This application is for leave to appeal against conviction and for leave to appeal against sentence out of time. We have indicated at the outset that we would hear Counsel for the applicant on the question of sentence later, if necessary.

2. LEE Kam Wing, PW1, was the owner of a hair salon and a karaoke bar in Shaukeiwan. LEE Ching-ching or Ada was his former lover and the female accomplice in these charges. She gave evidence as a prosecution witness, PW4.

3. The evidence adduced by the prosecution was that on the evening of 11th August 1990, PW1 received a phone call from Ada asking if she could come to see him that night at his apartment. He agreed. He returned home shortly after 2.00 a.m. and the moment he opened the door to his flat, someone placed a knife on his neck from behind and pushed him inside his flat. He was tied up with wire, blind-folded and forced to lie on his bed. The flat was ransacked for about one hour and $20,000 in cash, which were his business takings, a Rolex watch valued at about $50,000, four rings valued at around $20,000 and a Dunhill pen were taken either off his person or from the flat. Before he was blindfolded, the lights in the flat were on and he could see the robbers. At some stage of the robbery, the blindfold was removed from him when one of the robbers, whom PW1 identified as the applicant, asked him for the keys of his karaoke bar. He knew the female robber was Ada, his ex-lover and identified the other man from photographs as POON Kim-hung.

4. At about 3:50 a.m., the applicant arrived at the karaoke bar and was later joined by Ada and POON Kam-hung. PW2 and PW3 were staff working at the karaoke. Upon the arrival of Ada and Poon, one of the two men produced a knife, tied up PW2 and PW3 and property specified in the second charge was taken.

5. The evidence shows that a JETCO card belonging to HUI Ho-yee, PW3, was taken from her and later used to withdraw $1,000 from her bank account through an automatic cash machine nearby. The judge found this to be part of the common enterprise of the two men and the woman, and therefore also convicted the applicant on the charge of theft.

6. Most of the stolen property was returned to PW1 subsequently by a stranger who came to see PW1 at his karaoke bar. PW1 also said in his evidence that he met the applicant in a carpark some 3 months later after the robberies and PW1 recognized him as soon as he saw the applicant. There was a conversation in which the applicant asked if PW1 would give him a chance and not to give evidence against him at the trial.

7. LEE Ching-ching or Ada gave evidence for the prosecution and the judge was very much alive to the fact that she was an accomplice and in August 1990 she was relying heavily on sleeping pills commonly known as Blue Angels. The judge allowed a psychiatrist to be called by the defence on this aspect and was at the end satisfied that she did have a memory of events on that night. But he formed the impression that her memory of events was patchy and she was vague in many aspects of her evidence. The judge said this at p.16 of the transcript:

"However, it is a different matter in respect of the broadest, most fundamental features of the crimes, events which must had a traumatic effect on PW4. I do not think for one moment that she hallucinated. In respect only of those broadest, most fundamental features, I have no hesitation in accepting her evidence as an honest and accurate recollection of events."

We need not repeat her evidence. Suffices to say that will prove all the charges against the applicant if she is believed and the judge undoubtedly believed her.

8. The applicant gave evidence and his defence was an alibi. At the time of the offences he was in a karaoke bar in Jordan Road, Kowloon with two friends, Ah Kit and Eddie who were not called to give evidence. The judge who bore in mind that it was for the prosecution to disprove the alibi, concluded that the testimony of the applicant did not raise any doubt in his mind that the applicant was a party to these offences.

9. The grounds of appeal both in their written form and as argued by Mr. Eaton before us can be very briefly summarized. First, the judge failed to assess and evaluate the honesty and reliability of PW1 and PW4; failed to have sufficient regard to the inconsistencies and discrepancies between the evidence of these two witnesses and the inconsistencies and discrepancies between the evidence of PW1 given in court and his statement to the police which was made earlier. Second, the reluctance of PW1 to identify LEE Ching-ching or Ada (PW1 only told the police that the female robber was his former lover two days after the commission of the offences). Mr. Eaton also complained that the use of the term "fleeting glance" by PW1 more than once is curious or unusual. Third, it was submitted that it was not possible that the applicant could have asked PW1 not to give evidence against him at the time when no one was arrested or charged. There was no identification parade conducted in respect of the applicant and this put him in a disadvantage. In fact PW1 refused to attend an identification parade when he was requested to do so. Fourth, the judge failed to warn himself of PW4's emotional relationship with her two boy-friends and her drug taking habits which could have affected her emotional stability. Fifth, in relation to the second and third charges, it was dangerous to convict on the evidence of PW4 alone.

10. In relation to (1), we have already referred to the judge's treatment of PW4's evidence. As far as the evidence of PW1 is concerned, the judge dealt with it in detail accepting that PW1 was a little confused as to the sequence of some of the events and he further accepted that the inconsistencies and discrepancies were due to a lapse of memory and confusion. He found the two witnesses to be honest and reliable and there was no conflict in their evidence on major events. The judge had the advantage, which we do not have, of seeing the witnesses and observing their demeanor, he is in a much better position to make finding of facts and evaluate the reliability and honesty of witnesses than we are. We also do not consider there is any substance in (2) either. The fact that PW1 was reluctant to disclose the identity of PW4 is understandable, as the judge has very properly observed, having regard to their past close relationship. The term "fleeting glance" could have come from the court interpreter as PW1 gave his evidence in Cantonese. In any event, we see no special significance in this, a point which Mr. Eaton concedes. In regard to (3), this is not surprising because at that stage the applicant certainly knew that PW1 recognized him and there was every probability that sooner or later, he might be prosecuted. The refusal by PW1 to attend an identification parade does not, in our judgement, affect the validity of the charges nor does this place the applicant in any disadvantage. PW1 had ample time and opportunity to observe the applicant. This is not a case of a fleeting glance in the terms of Turnbull (1976) 63 C.A.R. 132. In addition, the evidence of PW4 must dispel the slightest doubt that the applicant committed these offences. In relation to (4), the judge, as we have observed earlier, was very much alive to these issues and paid special care and attention to them. There is nothing in (5) to cause us anxiety. The judge was aware that PW4 was an accomplice and warned himself of the danger of convicting on her evidence without corroboration. Furthermore there is circumstantial evidence which supports the second and third charges. The applicant, according to PW1, was the man who demanded and took the keys of his karaoke bar from him and the first man who later arrived at the karaoke bar gained entry into the premises with a key.

11. In our judgment, there is overwhelming evidence to support all three charges against the applicant and we are left in no doubt that the learned judge was right to convict him. As Mr. Bruce rightly submitted that what has been argued by Mr. Eaton on behalf of the applicant was in effect the general ground of appeal under S.83 of the Criminal Procedure Ordinance Cap. 221 that the conviction is unsafe and unsatisfactory and Mr. Eaton had an uphill task to convince us that there was a lurking doubt. We have not been so persuaded and we do not, for one moment, consider the convictions to be in any way unsafe or unsatisfactory. The application for leave to appeal against conviction is refused.

SENTENCE

12. We have noted that the sentence of 7 years is the maximum term of imprisonment that the District Court is permitted to impose. Maximum sentences are normally reserved for the worst case and we are satisfied that this is one of the worst cases to be tried in the District Court. Three offences, which were clearly planned, were committed one after another in quick succession. The robberies were committed by a gang of three, armed with beef knives measuring 15 - 20 inches in length. The victims were tied up with wire and blindfolded in the early hours of the day. Whether the applicant was the prime mover or not, he certainly played an active and important role in these offences. The property taken from the victims involved a large sum of money and valuables.

13. Mr. Eaton submitted that the learned judge had failed to give consideration to the return of the cash and valuables. We suspect that the subsequent return of the cash and valuables did not actually stem from any genuine remorse but rather from an expectation on the part of the applicant and his accomplices that if they did that PW1 might forget the matter and would not press the charges. Be that as it may, we are prepared to allow some discount to the applicant on this factor alone. Accordingly, we grant the application for leave, treating this as the hearing of the appeal, allow the appeal and reduce the sentence of 7 years imprisonment on each of the two robbery charges to one of 6 years. All the sentences are to be served concurrently and this means that the total sentence the appellant has to serve will be 6 years imprisonment.