THE QUEEN v. LAM CHOR MAN

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant who was convicted of robbery after trial before Deputy Judge Sharwood and a jury and was sentenced to 11 years' imprisonment. He now applies for leave to appeal against conviction and sentence.

2. The evidence presented by the prosecution was as follows. At about 2 a.m. on the 28 November 1987 a Mr. Wai, who was a room attendant at the Kung Sheung Guest House in Castle Peak Road, Kowloon, rented Room 414 of those premises to four men who said that they wanted to play mahjong. They ordered drinks. Drinking glasses were already provided in the room for their use. A few minutes later, another four men arrived and rented room 420 on the 4th floor. Mr. Wai twice heard someone from room 414 communicate with those in room 420. Around 4 a.m. he was suddenly confronted by about six of the men who had rented those rooms. They were armed with knives. He was tied up and robbed. They then took keys from him and used them to take money, bills, and the register of occupants from a counter drawer. He was dragged downstairs and forced to knock on the doors of the other rooms and inform the occupants that the police had arrived and were conducting an inspection. When the occupants responded by opening their doors the robbers burst in and robbed them of a large quantity of jewellery, cash and other valuables. The victims were then pushed into a room where they were tied up and forced to squat.

3. At about noon that day the police, who had been conducted the enquiries into the robbery, began examining the scene for fingerprints. They succeeded in lifting a palm print from the door of room No. 306 on the 3rd floor. They also lifted a fingerprint from a glass in room 414. These prints were compared with prints subsequently taken from the applicant. A fingerprint expert testified that the print found on the glass was identical with the print taken from the applicant's right forefinger, and that the palm print taken from the door on the 3rd floor was identical to his left palm print. The expert emphasised that the fingerprint on the glass would not have survived had the glass been washed or wiped. There was also evidence from Mr. Wai that he had begun duty at 10 p.m. the previous evening and that when he inspected room 414 he found it to be clean and that all the glasses were in their usual position next to a flask. He therefore did not find it necessary to change or wash them.

4. Both Mr. Wai and another room attendant, a Mr. Cheung, also said that the practice was that after a room is vacated it is always thoroughly cleaned and the bedsheets are changed whether or not they had been used, the floor is swept, and the table, woodwork, doors and window frames are wiped over with a wet towel.

5. Mr. Cheung and another room attendant, a Mr. Au, were responsible for the rooms on the 3rd and 2nd floors respectively. They testified that they had been robbed by two men armed with knives and pushed into room 420 where they found that some ten other people had been tied up and made to squat.

6. The applicant was arrested on the 2 August 1988. Two days later made a statement under caution. He denied having been involved in the robbery and stated that he remembered that between 4 and 5 a.m. on the 28 November 1987 he was working at the Tin wong Nightclub as a manager. He also denied that he had ever been to the Kung Sheung Guest House to rob. Having made the statement he was granted police bail.

7. On 25 August his bail money was returned to him and he was released unconditionally. Subsequently the fingerprint evidence became available, and on the 27 October he was re-arrested and placed on bail while further inquiries were being made. On the 4 November he was intercepted by Immigration Officers at the Kowloon Ferry Pier when attempting to leave Hong Kong. On 17 November he reported in accordance with the terms of his bail conditions and made a statement under caution. He denied that he had been to Castle Peak Road or to the Kung Sheung Guest House, and asserted he had never heard of such a place until his arrest. Notwithstanding that both statements were denials of any involvement in the robbery the applicant testified that the police had beaten him and had forced him to stand naked in front of an air-conditioner until he collapsed. As to his denial in the second statement that he had never been to the guest house, he alleged that when he had been asked whether he had ever been there he had replied that he could not remember. He was then asked whether he had been there since his arrest. His response to that query was that he had not. The police then suggested that he should write down that he had never been there as that would result in the warrant being cancelled. Without considering the matter any further, he did as suggested. He further testified that he had attempted to leave Hong Kong because, having heard that the police were asserting that his fingerprints had been found at the scene of the robbery, he feared that he was being framed.

8. Having been charged of the robbery on 20 January 1989, he subsequently failed to answer to his bail and went to China. After he had been there for some seven or eight months, his memory was triggered by the fact of his birthday on the 2 November of that year and he suddenly remembered that on the very night of the robbery he had been present at the Tin Wong Nightclub celebrating the birthday of one of the girls working under him. He recalled that after the night club celebration they had gone to a disco and thence to a restaurant where they had morning tea. In the light of this sudden recollection of events he decided to return to Hong Kong to gather together witnesses who could support his alibi and establish his innocence. Unfortunately for him he was arrested by the police on his arrival in April 1990.

9. Later, while he was in Lai Chi Kok Reception Centre waiting trial, he came across a fellow inmate, one Fan Siu-kwan, by sheer chance. During the course of their conversation Fan reminded him that on two occasions they had smoked heroin together at the very guest house at which the robbery had occurred. Suddenly everything fell into place. The applicant remembered that he had been to the guest house. The mystery that had been bothering him as to why his fingerprints had been found there had now been solved. In his testimony he said that the two visits had occurred about a month apart.

10. He also called a witness, a friend named Mak who had worked as one of his supervisors at the Tin Wong Nightclub. Mak confirmed the applicant's testimony that he had organised a birthday party for one of the hostesses on the night of the 28 November 1987, that the celebrations had began at midnight and had lasted for two to three hours, and that they had all gone from there first to a disco, where they had passed another one and a half to two hours, and then to a restaurant. Under cross-examination Mak admitted that, when questioned by the police, he had told them that as the party had occurred several years ago it might have been held in October. Moreover, the book in which he kept his record had unfortunately been burnt in a fire in the nightclub. He also admitted that he had several convictions for burglary and theft and one for misleading the police by giving false information.

11. Further confirmation of the alibi evidence came from a Miss Law, a hostess who had formerly worked at. the Tin Wong Nightclub under Mr. Mak. Under cross-examination she admitted that she had previously cohabited with the applicant. Finally, Mr. Fan, confirmed that he had had a chance conversation with the applicant while they were standing on opposite sides of a gate in the remand centre in which he had reminded him that they had twice been to the guest house to smoke heroin.

12. At the time of giving this evidence Fan was serving a ten year sentence for drug trafficking.

13. The applicant, who was unrepresented at the hearing of this application, filed several grounds of appeal. In these grounds he complains that the police had failed to produce supportive evidence in the form of photographs of the glass on which his fingerprint was found, that the judge was biased against him and had told the jury that he had lied, that the prosecution had cross-examined his witness Mak concerning his conviction for giving false information to the police, when this was a matter of which the applicant had been completely ignorant, and that the judge had generally failed to draw the jury's attention to various tenuous aspects of the prosecution case.

14. We are satisfied that there is no justification in any of the complaints which he has made. The judge gave the jury a full and fair summary of all the evidence including every significant aspect of the defence case. His directions on the law were clear and accurate. In particular, he correctly directed the jury as to the use they could properly make of lies, especially in relation to the giving of false evidence as to the alibi. He also correctly directed them as to the significance of flight.

15. On the evidence before them the jury were perfectly entitled to find the applicant guilty of robbery. We have not the slightest doubt as to the propriety of the verdict. The application for leave to appeal against conviction is therefore refused.

16. With regard to the application for leave to appeal against sentence, the applicant was represented by Mr. Sceats on the instructions of the Director of Legal Aid. Mr. Sceats submitted that the sentence of eleven years was manifestly excessive in the light of the guidelines laid down in MO Kwong-sang v. R. [1981] HKLR 610 and the fact that there was no evidence as to the precise role that the applicant played in the robbery. There was, of course, no need for any such evidence to be given. The applicant was plainly a member of a group of armed men and shared with them the common design of robbing the occupants of every room in the premises. We were also referred to R. v. CHAN Ping-kwong Cr.App. 518 of 1988 where this court reduced by three years sentences of 12 and 10 years of imprisonment respectively imposed on two men who had pleaded guilty to robbing the occupants of a domestic premises. However the reason for the reduction in sentence was that the judge there had adopted a starting point for sentence which was more appropriate to an armed robbery of a bank or a jewellery shop.

17. In the instant case, however, the applicant, unlike the defendants in Chan Ping-kwong, was convicted after trial. In our view there were no significant mitigating factors. That no one was injured in the course of the robbery is not a mitigating factor. It merely reflects the fact that none of the victims offered resistance and that the robbers did not engage in gratuitous violence. Had they injured a victim a heavier sentence would have been justified.

18. The systematic invasion of three floors of rooms occupied by various people in a guest house by 8 men armed with knives in the middle of the night is a much graver offence than a robbery confined to one unit in a building. In delivering the judgment of the court in Mo Kwong-sang the Chief Justice made it plain that a court should not be inhibited from taking account of the particular facts of the case before it. It would be salutary for robbers to realise that they can derive no comfort from the philosophy that one might just as well be hanged for a sheep as a lamb. The sentence passed on the applicant is not one with which this court is disposed to interfere. The application is therefore refused.