R v. WU CHUN-PIU

IN THE COURT OF APPEAL

1991 No. 38
(Criminal)

HEADNOTE

Attitude of Court of Appeal on appeal against conviction to admissions of guilty involvement made by counsel when mitigating after a finding of guilt.

IN THE COURT OF APPEAL

1991 No. 38
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced a charge that he, together with two other named persons, on 27th February 1990, at the Kam Doa Night Club at 28B, first floor, Bute Street, Kowloon, robbed CHEUNG Ying-sze of cash $200 and an "Omega" wristwatch and WONG Koon-bo of cash $17,300 , a "Citizen" wristwatch and a cheque book. The three defendants also faced a charge that at that time and place they had in their possession a real or imitation firearm while committing a robbery. He was found guilty after trial in the High Court before Deputy Judge Leonard, as he then was, and a jury, and sentenced to imprisonment for fourteen years on the first charge and six years on the second charge, and the sentences were order to be served concurrently. He now seeks leave to appeal against his conviction out of time.

3. The applicant was the 2nd defendant at trial. The 3rd defendant appealed against his conviction (Cr. App. No.38 of 1991). This appeal was heard on 7th May 1992 by a court consisting of Power, J.A., Macdougall J.A. and Bokhary J. On 15th May 1992, in a reserved judgment, the court upheld that appeal. The ground upon which the applicant succeeded was Ground 2 of his Notice of Appeal which is identical with Ground 2 in the present application. The relevant part of that ground reads as follows:

"2. That the learned judge failed to direct the Jury upon special weaknesses in the identification evidence, namely whether the identifying police officers had `colluded with each other about the case and about the identifying features and had told lies about so doing'."

The identification parade which concerned the court in that appeal had been held on 14th March 1991 and PCs 3605, 17224 and 46865 identified the 3rd defendant. In the present application we are concerned with an identification parade on 2nd March at which the same three police officers identified the applicant. As to the parade held on 14th March PC 3605 had said in evidence that prior to the parade the three officers discussed "about the clothing he (D3) was wearing and whether one could recognize him again if one saw him again". The other two officers denied having had any conversation of that sort about D3. When summing-up the trial judge said:

"Before the identification parade on the 2nd March, there was evidence that all three officers were waiting in the same room, but 17224 said that they did not discuss the matter, and, likewise, they were in the same room before the identification parade on 14th March, but again, the only discussion that took place, according to 17224, was a discussion as to the reason why they had not yet received their commendation for their work in this case.

46865 agreed that at the time of making the first statement they had discussed what each of them had seen and done that day. On the first identity parade there was no discussion about the case, and on the second identification parade there was no discussion about the case, but the question of the missing commendation came up again. He told you that this is his first big case, his first appearance in the High Court.

The keenness of these young constables has also been the subject of some comment as to whether, in their keenness to get a good result in this case, and perhaps to get a commendation, they may be convincing themselves about matters which may not really be correct. It's a matter, members of the jury, for you to decide."

4. In its judgment upholding the appeal, the court said:

"This matter turned upon acceptance by the jury of the identification parade evidence given by the police officers. It was the defence that the evidence was suspect not only because of the conditions existing at the time when the observations were made but also because the police officers had made their identifications after having put their heads together. The defence suggested, inter alia, that the police officers were not worthy of credit on this vital issue because they had failed to give frank and truthful evidence about their conversations immediately before making the identifications. This was, of course, a matter for the jury, but it was essential in our view that the judge direct them evenhandedly as to the evidence relevant to this issue.

As can be seen, the judge when dealing with the evidence of PC 3605, who said there had been some discussion about identification prior to the parade on 14th March, made no mention of this. However he did outline the evidence of PC 17224 and PC 46865 in which they denied that there was any discussion about identification. He failed to direct the jury's mind to the evidence which was not only at variance with that to which he did refer but which also, the jury might have taken the view, was of assistance to the defence. The Crown suggest that this omission was cured by reference to the evidence of Chief Inspector Chau in which the Chief Inspector agreed that if there had been any discussion about the culprits by the witnesses waiting their turn to make an identification, it would not be fair. This observation, having been made in the context of a summing-up in which there was a failure to make mention of the one witness who had said that there had been some discussion, in our view, did nothing to alleviate the matter. In the circumstances we do not need to deal with the other two grounds. We are satisfied that this was a fatal flaw in the summing-up and that the conviction must be quashed."

5. It was in consequence of this successful appeal by the 3rd defendant that the applicant made his application to appeal against conviction out of time. When the matter first came before this court on 21st January 1992, Mr. Saw for the Crown opposed the grant of leave referring to the grounds of appeal against sentence which the applicant had filed and abandoned. The applicant was convicted on 14th December 1990 and was sentenced on 8th January 1991. On 18th January 1991 he sought leave to appeal against sentence and filed grounds which he had drafted himself in which he said:

"I was young when the incident in question happened. In fact, I was the youngest among all co-defendants. I was deceived by the 1st defendant into committing the crime of armed robbery. It was a big mistake, but fortunately no one was hurt. Otherwise, the consequence would be more serious.

The 1st defendant, who was the mastermind of the crime, has been given a 9 years sentence while I was sentenced to 14 years. The difference is too large."

The grounds then went on to detail family circumstances which, he suggested, called for a measure of leniency.

On 1st May 1992, six days before his application to appeal against sentence was to be heard, he abandoned that application. On 19th May 1992, four days after the delivery of the judgment in the 3rd defendant's appeal, he wrote a letter which was addressed to the Registrar in which he said:

"The jury, in the Supreme Court on 13 December 1990, returned an unanimous verdict of guilty. As I then had no knowledge of the law, I mistakenly thought that there was no ground for appeal against conviction since the guilty verdict was by an unanimous vote of 7 to 0."

He went on to say that he had learnt from the South China Morning Post that the 3rd defendant's appeal against conviction had been successful and that he was, therefore, seeking leave to appeal against conviction. It is to be noted that nowhere in this letter did he suggest that he had not committed the offence. However, on 11th June, he drafted a ground of appeal in which he said: "I had not committed any robbery." and in his affirmation in support of his application for leave to appeal against conviction out of time he said: "Previously I only appealed against the sentence but as I had not committed any robbery I now apply to appeal against conviction out of time."

6. Mr. Saw submitted that leave should not be granted as, in his application for leave to appeal against sentence, the applicant admitted that he had committed the offence. Mr. Saw further argued that there was, in the case of the applicant, further evidence implicating him which was not so in the case of the 3rd defendant whose conviction rested solely upon the identification evidence.

7. Although other grounds were raised in the Notice of Appeal, the ground upon which reliance was placed by Mr. Mackenzie Ross, who appeared for the applicant before us, was the ground upon which the 3rd defendant had succeeded in his appeal. Mr. Mackenzie Ross submitted that if the conviction was wrong on the evidence that had been presented at trial, the applicant was entitled to have it quashed. He submitted also that the applicant was contesting the truth of the admission made by him in his application for leave to appeal against sentence.

8. The matter was adjourned to allow the applicant to file an affidavit as to the making of that admission.

9. On 3rd February 1993, he filed an affidavit from which he said:

"The reason why I wrote down some mitigation factors in my said home made grounds of appeal against sentence, was that on 13th December 1990, I was convicted of the offences by the Jury by a unanimous verdict of 7 to 0 so, I thought that there was no grounds for appealing against the conviction, and then during my jail custody at Pik Uk Prison, some of the prisoners told me that I could appeal against the sentence, and they also told me that on my said grounds of appeal against sentence I should show remorse and in order to do so I should admit the said offences, so the judge will take it in consideration to reduce the sentences. That is why I stated the things about the first defendant and being deceived by him into committing the offences."

He went on finally to say that he was mistakenly "induced to make a false home made grounds of appeal against sentence ...".

10. When the hearing resumed on 27th April 1993, Mr. Mackenzie Ross submitted that whatever he had said in his application for leave to appeal against sentence it would be wrong to use that against him because of the following statement in English and in Chinese characters which appears on the application form:

"It has been fully explained to me that if I appeal against both conviction and sentence at the same time, one will not have any adverse effect on the other."

He went on to submit that, even if the admission might be able to be used against the applicant in a retrial, it would be quite wrong to make any use of it in this appeal as it was not evidence in the trial. He submitted that if this court, having examined the evidence in the trial, was satisfied that the defendant was entitled to have the conviction quashed, then it must quash the conviction.

11. Mr. Saw further submitted that an admission made by counsel was an admission binding the defendant - he referred to Bryan James Turner (1975) 61 C.A.R. 67 and he then drew our attention to the mitigation by counsel then appearing for the applicant made on 8th January 1991 immediately before the trial judge sentenced in which he said:

"My Lord, I would ask you to bear in mind his age. He's still a very young man at the time he committed the offence - aged 20 (19 and 4 months). And the unfortunate thing in this case, my Lord, is that he has been making good progress in the training centre and it can be said, of course, that his chances of rehabilitation appear now genuine.

Also, my Lord, apparent from the probation officer's report, is some sort of remorse on his part since the conviction. He gave to the probation officer the reason why he committed the robbery now, namely that he was in debt, in a gambling debt situation, that the robbery was committed really to get some money to repay the gambling debt.

His situation, my Lord, apparently is a classic example of a young man coming from a broken family, without adequate parental supervision or education or guidance, that he would have gone astray as it were, had associated himself with bad company, got himself into other offences that we have heard, that you have been told about, got himself into heavy debt and then had to, as it were, commit the present robbery, which is rather serious.

My Lord will also bear in mind that in the course of the robbery, very minimal violence was used, and as is evident from the evidence that the defendant and his associates never intended to inflict any bodily harm on anyone, it's money that they were after. You will recall, my Lord, the evidence of the old lady who came here, who said the robbers told her, 'Don't be afraid. We are only after money'., and there was also evidence from the policemen during the confrontation that the defendants said, 'Ah Sir, we are only after money'. It clearly indicated, my Lord, that they never intended to use any undue violence or force on anyone than is required."

12. It is quite clear that the applicant's counsel was, for the purpose of the plea in mitigation, not merely accepting the verdict of the jury but was prepared to accept the truth of the admissions made by the applicant to the Probation Officer and was asking the trial judge to sentence upon the basis of those admissions. This the trial judge did, saying:

"I have taken into account the matters I have already mentioned in his favour as well as the speech and mitigation made on his behalf by Mr. Iu, but I have to say that I do not accept that the fact that the robbery was carried out to raise money to repay a gambling debt can, in any way, be regarded as a mitigating factor."

13. Mr. Saw relied upon these matters rather than upon the admission made in the application for leave to appeal against sentence, the truth of which the applicant had, as has been outlined above, denied. The applicant has, however, never denied that his counsel made the admissions to which Mr. Saw referred or suggested that he was not authorized so to do. Mr. Saw referred to s.83(1) of the Criminal Procedure Ordinance which states that:

"Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred."

Mr. Saw submitted that, given the admissions which the applicant made through his counsel, this court must be satisfied that no miscarriage of justice had occurred. As to his admission made in the application for leave to appeal against sentence, Mr. Saw, although he did not rely upon that admission, submitted that, as the applicant did not appeal against both conviction and sentence at the same time, he was not entitled to the benefit of the "adverse effect" exemption.

We are satisfied that the applicant admitted, through his counsel, that he had committed the offence and that we are entitled to take that admission into account when considering whether there has been any miscarriage of justice. We are satisfied that, although the point raised in his appeal might have been decided in his favour, no miscarriage of justice has occurred. In the circumstances, we are satisfied that the proper course is to refuse the application for leave to appeal against conviction out of time.