THE QUEEN v. YUNG CHI-WAI AND ANOTHER

IN THE COURT OF APPEAL

Criminal Appeal

No.421 of 1987

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REASONS FOR JUDGMENT

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Clough, J. A. (delivering the reasons of the Court):

1. The two applicants (to whom we will refer as the first and second defendants respectively) were convicted by Deputy Judge Crawshaw in the District Court on 15 charges of damaging property contrary to section 60(1) of the Crimes Ordinance (Cap. 200). On conviction the deputy judge made detention centre orders against them.

2. Both defendants applied for leave to appeal against conviction and sentence. On the 3rd February 1998 we allowed the first defendant's application for leave to appeal and his appeal against conviction in respect of charges 2 to 15 and dismissed his application for leave to appeal against conviction in respect of the first charge. We dismissed his application for leave to appeal against sentence. In the case of the second defendant, we dismissed his application for leave to appeal against conviction.  For the special reasons given below, we allowed his application for leave and his appeal against sentence. We now give our reasons for our orders.

3. At the date of their respective convictions the first defendant was 17 and the second defendant was 23. The charges against the defendants were the sequel to the wanton damage done to no less than 53 motor vehicles. When the trial began on the 3rd July 1987 the defence admitted for the purposes of section 65C of the Criminal Procedure Ordinance (Cap. 221) certain facts set out in the Crown's Summary of Facts. These were that in the early hours of the 4th February 1987 damage was done to 53 vehicles parked in a public car park outside Tin Sum Village near Shatin. The windscreens of 49 vehicles had been broken. The tyres of 4 vehicles were flattened. The estimated amount of the damage done was $14,720. The 15 charges against the defendants were laid by the Crown as representative of the total damage done to all the vehicles.

4. The defendants were charmed jointly in each of the 15 charges, each of which related to a specified vehicle identified by its registration number and owner. In each of the charges it was alleged that the defendants had damaged the specified vehicle together with persons unknown. The basis of the Crown's case was thus that, if the evidence was sufficient for the purpose, the defendants or one or other of them could be convicted on any one or more of the charges as principals or as aiders and abetters under section 89 of the Criminal Procedure Ordinance.

5. The Crown's evidence implicating, the defendants consisted solely of their cautioned statements made to the police in Station Police Station soon after their arrest, with three other suspects, in the early hours of the 28th February 1987. At the trial the admission of these statements was contested. After hfolding a voire dire in respect of each statement the deputy judge admitted both of them. The defendants both elected to give evidence in their defence. They denied being involved in causing the damage or being present at the scene when it seas caused. The deputy judge disbelieved the defendants and convicted them on their own admissions in their cautioned statements.

6. Counsel for the defendants , Mr. van Buuren, contended that the deputy judge's decision to admit the defendants' cautioned statements was unsafe and unsatisfactory because he had wrongly concluded that discrepancies in the evidence of the police witnesses in the voire dire were not material. Mr. van Buuren stressed that the evidence of both the police officers who recorded the cautioned statements of the defendants had been contradicted by a colleague who was alleged by each defendant to have used threats and pressure to induce them to make their statements. He had denied those allegations but had admitted having seen both the defendants in room 207 in the Shatin Police Station, whereas the officers who recorded the statements insisted that each of them had remained with the respective defendants in rooms 203 and 208 respectively.

7. We were unable to accept that the discrepancy relied upon by Mr. van Buuren made it unsafe or unsatisfactory for the deputy judge to treat it as not sufficiently material to prevent him from accepting the credibility of the three police officers called for the Crown in the voire dire. The deputy judge saw and heard those witnesses and the defendants in the course of the voire dire. He had ample opportunity to assess their credibility. He was in our view entitled, on the evidence before him, to come to the decision he did in the voire dire.

8. It was contended on behalf of the defendants that the deputy judge had erred in his judicial function by first stating, in his reasons for his verdict, delivered after adjourning for consideration, that he rejected the defendants' evidence as untrue and then going on to consider the weight to he given to the defendants' cautioned statements. We did not consider, that in thus rejecting, the evidence of the defendants as untrue the deputy judge was to be regarded as indicating that he had departed from the fundamental principles applicable in a criminal trial regarding the onus and standard of proof.

9. In his decision in the voire dire, given earlier on the same day, he had expressly referred to those principles of which he had been reminded by Mr. van Buuren. Under the circumstances we consider that the substance of the judge's decision on the evidence on the general issue was that, because he no more believed the evidence of the defendants on that issue than he did in the voire dire, the only evidence to he considered and weighed on the general issue was that contained in the defendants' cautioned statements.

10. The only ground of substance that was argued on behalf of the defendants was that the judge had erred when convicting them on all the 15 charges because there was insufficient evidence that their actions were the result of a joint enterprise. In the case of the first defendant we agree that there was not sufficient evidence to justify his conviction on all 15 charges either as a principal involved in furtherance of a joint enterprise or as an cider and abettor of others.

11. When convicting the first defendant on all the charges the judge relied on his admission in his cautioned statement that he had broken one windscreen. However, there was nothing in the first defendant's statement to justify a finding that (1) he went to the car park as a member of a party which had agreed that they would together damage the vehicles parked there, or (2) that he was anything but a drunken, spectator of damage being done by others until such time as he picked up a brick and broke the windscreen of a vehicle.

12. If the first defendant's statement had contained an admission that any of his companions had continued to damage vehicles after he had damaged one, then there would have been evidence to support the contention that he had joined in the joint enterprise of others or ailed and abetted them by intentionally and wilfully encouraging the crime they were committing. However, in the absence of any evidence in the first defendant's cautioned statement, or from any other admissible source, that any damage was don by others after he himself had damaged a vehicle, we agreed with Mr. van Buuren that to convict the first defendant on all 15 charges was erroneous.

13. Each charge was in respect of a particular specified vehicle. The evidence did not disclose which of the vehicles the first defendant had damaged. However the evidence did disclose that he was guilty in respect of one unspecified vehicle. As the evidence was at variance with the charges the deputy judge ought to have amended the particulars of one charge to allege damage to "a motor vehicle, the property of a person unknown". He did not do so. No prejudice or embarrassment to the first defendant would have been involved by such an amendment, nor has the failure to amend involved a miscarriage of Justice. We therefore applied the proviso and dismissed the first defendant's application for leave to appeal against conviction in respect of the first charge, but allowed it and his appeal in respect of the other charges.

14. Being satisfied that the first defendant should have been convicted on one charge of damaging an unspecified vehicle in the car park, we considered that in all the circumstances of the case he could properly have been the subject of a detention centre order in respect of that one charge. Accordingly, as we considered that no miscarriage of justice had actually occurred in the case of the first defendant, who had already been released by the Commissioner of Correctional Services prior to the bearing of the applications pursuant to section 4(2)(h) of the Detention Centres Ordinance (Cap. 239), we dismissed his application for leave to appeal against sentence.

15. As regards the second defendant, the position was different, as the deputy judge indicated when giving his reasons for verdict. The second defendant had clearly admitted in his cautioned statement that when he was with his friends at the car park he had agreed to a suggestion of one of his friends that they should damage the vehicles parked there. He said that one of the party started by throwing a brick and damaging a vehicle and that after that the others, including himself, followed suit by picking up bricks and damaging cars until they dispersed and went home. This evidence, which the deputy judge accepted, was overwhelming evidence upon which the second defendant was rightly convicted as a principal on all the 15 charges.

16. We were informed by Mr. van Buuren that the second defendant had been released on bail pending appeal on the 3rd December 1987. By then he had been in a detention centre for nearly 4 months. Under section 4(2)(a) of the Detention Centres Ordinance he could, at the discretion of the Commissioner, have been detained for a maximum period of 12 months but he could not have been released until he had served a minimum of 3 months.

17. A convicted person who is granted bail pending appeal must generally expect to serve out his sentence if his appeal fails. However the circumstances of the second defendant were unusual. we considered that as his detention had been broken by his release on bail after he had served more than the minimum of 3 months without apparently being considered by the Commissioner to he fit for release, it would not he just to send him hack to start afresh in the detention centre and continue his detention. If he had not learned his lesson by the time he was released on bail he would in all likelihood be having to make a fresh start and would end up serving longer than if he had not been released on hail.

18. Accordingly, in order to do justice to the second defendant in all the circumstances (but not because we considered that his sentence was wrong in principle) and because this court bas no power to release a young offender from a detention centre under the Ordinance, we substituted for the detention centre order in his case a common law binding over order under which he was hound over in his own recognizance in the sum of 5500 to keep the. Peace and be of good behaviour for 6 months.