HKSAR v. CHAN TO

CACC 221/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 221 OF 2006

(ON APPEAL FROM HCCC NO. 275 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court) :

Background and facts

1.  On 19 May 2006, following a trial before Deputy High Court Judge Line and a jury, the applicant was convicted on four counts of an amended indictment (counts 3, 4, 5 and 6) and was acquitted on two others (counts 1 and 2).  His co-defendant, Shing Man-ping (D2), pleaded guilty at the outset of the trial to four of the counts on the original indictment (including the offences in counts 3, 4 and 6 to which the applicant pleaded not guilty) and received a total sentence of 14 years’ imprisonment.

2.  The applicant was sentenced to 27 years’ imprisonment in totality.  He now seeks leave to appeal against conviction.  His application for leave to appeal against sentence was not pursued and we have, therefore, dismissed it.

3.  The facts of the case can be shortly described.  The offences covered by counts 3, 4 and 5 were all committed on 9 June 2005 and alleged, respectively, an attempted robbery of, amongst others, Au Ka-lei, contrary to section 10(1) and (2) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200, possession of a homemade self-loading pistol at the time of attempting to commit a robbery, contrary to section 17(2) of the Firearms and Ammunition Ordinance, Cap. 238 and shooting at Au Ka-lei with intent to do her grievous bodily harm, contrary to section 17(b) of the Offences against the Person Ordinance, Cap. 212.

4.  The offences were allegedly committed by the applicant and D2 when they burst in on a number of people who were playing mahjong in a hut near Fanling.  The applicant’s face was covered by a mask and he was alleged to be carrying a handgun.  D2, who had no mask, was holding a spanner.  The prosecution’s case was that the applicant took a bag from one of the mahjong players.  He then turned to Madam Au whose bag was being worn across her body.  There was a struggle during which Madam Au pulled down the applicant’s mask and they had eye contact for some few seconds.  She then ran as the applicant shouted out: “In that case, I fire”.  He then allegedly extended his hand, pointed the gun at Madam Au and fired.  The bullet fortunately struck her handbag so that by the time it exited on the other side, it made only a small mark in the region of her navel.

5.  One of the others present stated out loud that, as Madam Au had not apparently been injured, the gun must have been a fake.  He then put up resistance as did a second man who threw a chair at the applicant.  This had the result that the robbers fled empty-handed.  Remarkably, as no one had suffered a loss or physical injury, the mahjong players then continued with their game.  They treated the cartridge case and the bullet as “toys” until, next morning, Madam Au discovered that the bullet had gone right through her bag, tearing the edge of some banknotes which were inside.  At that stage, a report was made to the police.

6.  At 5.35 pm, on 10 June 2005, armed police went to the vicinity of Flat 111, Lai Tin House, at the Pak Tin Estate where the applicant was shown as the tenant.  He was arrested in possession of the keys as he attempted to leave the flat.  D2 was arrested inside the flat.

7.  Also inside the flat, police discovered a homemade self-loading pistol and three live rounds of ammunition which formed the subject matter of count 6, namely, possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance.  Amongst other items, the police also found a tear-gas aerosol can, a pair of handcuffs, a box containing ten masks and a spanner.

8.  On 16 June 2005, Madam Au identified the applicant as the person whose face she had briefly unmasked and who had fired at her.

9.  Important evidence in support of Madam Au’s identification of the applicant was later provided from the results of a forensic examination of the pistol found at the applicant’s address and the bullet found at the scene of the attempted robbery.  In short, the pistol had fired the bullet which hit Madam Au.  It was also established that although the applicant’s firearm was homemade, ammunition fired from it was capable of achieving similar velocity to ammunition fired from a pistol which had been manufactured.

Defence case

10.  The applicant’s defence at trial was that he had not been concerned in any of the offences.  He testified that although D2, who was someone he had known for some time, had been at the flat where the gun and the other items were found by the police, they were there without his knowledge.

Grounds of appeal against conviction

11.  The first ground of appeal advanced by Mr Percy on the applicant’s behalf, with its eight subdivisions, amounted to an allegation against the applicant’s trial counsel of flagrant incompetence in the conduct of the defence.  The particulars advanced were as follows:

“	(i)	Trial counsel made Admitted Facts on behalf of the applicant concerning the co-accused Shing Man Ping (D2) in terms that were both irrelevant and/or prejudicial to the proper conduct of the applicant’s case …
	(ii)	Trial counsel, in cross-examination of Md. Au (PW3) (see Appeal Bundle 108-109) failed to properly put the defence case by suggest[ing] she was ‘mistaken’ or ‘lying’ about her ability to identify the applicant as ‘the masked robber’.
	(iii)	Trial counsel failed to cross-examine Md. Au (PW3) about her incorrect identification of Shing Man Ping (D2) - the unmasked robber, at a formal ID Parade to demonstrate her weakness and to undermine the correctness of her identification of [the applicant].
	(iv)	Trial counsel failed to properly cross-examine Md. Au (PW3) about the contents of her two witness statements to try to discredit her evidence of identification.
	(v)	Trial counsel failed to cross-examine Md. Au (PW3) upon or apply to exclude the admissibility of Md. Au’s identification evidence on the basis that she was ‘not sure’ of the identification of the man at position No.2. See para.5 of her 2nd witness statement 16/6/2005 in which she stated ‘I could see his face which looked like the person standing at position No.2 today.’
	(vi)	Defence counsel failed to edit or have edited out of the defendant’s Record of Interview Ex.P168 the irrelevant and prejudicial reference to an alleged offence of ‘abetting a male illegal immigrant’.
	(vii)	Defence counsel failed to exclude or have excluded references in the evidence to irrelevant and prejudicial matters such as the presence of ‘tear gas’ and handcuffs found in his flat (see Photographic Booklet number 78 and 79 - Ex.239).
	(viii)	Defence counsel failed to properly cross-examine those eye-witnesses PW4 to PW7 and to request that So Yung Cheung be tendered, so as to discredit Md. Au’s (PW3) claim to have been able to positively identify the applicant as the masked robber, because in the course of a struggle she had pulled down his mask.”

Direction that co-defendant’s guilty pleas must not be regarded as evidence against the applicant not given

12.  Taking some of the points raised in the 1^st ground, the first complaint, set out at (i), related to paragraph 17 in the Admitted Facts which reads:

“

17.

On 10 June 2005, Shing Man-ping was arrested by the Police at the premises. On 29 March 2006, Shing Man-ping pleaded guilty to and admitted, among others, one count of attempted robbery, one count of possession of arms at the time of attempting to commit a robbery and one count of possession of arms and ammunition without a licence i.e. the 3rd, 4th and 6th counts of the indictment respectively. Shing Man-ping committed the crime to which he so pleaded guilty.” (Appeal bundle p. 6) (Emphasis added)

13.  A closely related point arose under the 3^rd ground of appeal which alleged a non-direction on the part of the judge to the effect that the jury were never informed that D2’s guilty pleas to those offences also faced by the applicant (counts 3, 4 and 6) could not be regarded as evidence against the applicant.

14.  Mr Percy’s submission was that because these counts on the indictment were before the jury, they would have been able to read that in each count the allegation was against the applicant as well as D2.  In other words, both were alleged to have participated in the offences together.  Mr Percy argued that, from the way counsel for the defence had framed the admitted facts, the jury might have concluded that D2 had pleaded guilty to committing these offences with the applicant.  This was, in our opinion, an extremely artificial argument.  In the context of this case, there was no reason at all for the jury to have thought, any more than defence counsel who made the admission on behalf of the applicant, that D2 had pleaded guilty to the commission of these offences with the applicant.  D2 was a separate individual who, charged with the offences against him, had pleaded guilty to them.  The sole important issue before this jury, in the full knowledge that D2 was a guilty party, was whether the prosecution could prove that the applicant was also guilty of having played a part in these offences.

15.  A moment’s consideration makes it clear that, far from constituting an admission that should not have been made, the admission assisted the applicant’s case.  It helped his case in that it explained how the gun used in the crime came to be in his flat.  It was brought there by the man who had since admitted his part in the robbery.  Furthermore, establishing D2’s culpability in the crime was said by Mr Percy to have helped the applicant in the way the case was presented to the jury because Madam Au had been unable to identify the self-confessed criminal, D2, at an identification parade.  Although we were not referred to this court’s decision in HKSAR v Lo Wai-ming [2007] 4 HKC 174, we merely add for the sake of completion that the factual situation in that case was entirely different and has no application to the present case. There, unexpectedly and without justification, the prosecutor had introduced evidence of a co-defendant’s plea of guilty to trafficking in dangerous drugs which included the words ‘together with’ the appellant who was then on trial.  Prosecuting counsel asked the appellant whether the co-defendant was not being called because he knew “he pleaded guilty to taking part ‘with you’ in this drug transaction”.

16.  Defence counsel in the present case dealt with D2’s guilty pleas in his final speech by saying, amongst other things:

“

So far as Count 4 is concerned, I say only this, that in considering that count, you have to bear in mind that Shing Man-ping has admitted - and it’s there in the Admitted Facts - he has admitted that he possessed the weapon. Now, I’m not saying for a moment, members of the jury, that the fact that Shing Man-ping has admitted that he possessed the weapon at the time of the attempted robbery excludes the possibility of the other robber having possession of that weapon - which, as you’ll hear from my Lord, the concept of joint possession, joint custody, joint responsibility is well known.” (Appeal bundle p. 155)

17.  The judge later echoed these sentiments in the summing up by stating:

“

… The Admitted Facts tell you that Shing Man-ping was arrested at the premises by the police and that he pleaded guilty to and had committed the offences that are set out in Counts 3, 4 and 6 on this indictment.

Of course, the fact that he committed those crimes does not mean that the defendant cannot also be guilty of them, for it is, of course, possible for two men to commit the same crime at the same time. Whoever the other man who burst into the hut was, he was clearly acting in concert with Shing Man-ping in attempting to rob and he would therefore be jointly guilty of that crime.” (Appeal bundle p. 20) (Emphasis added)

Although the italicised passage (above) was not specifically criticised by Mr Percy in the perfected grounds of appeal, the written submissions or in oral argument, we took it upon ourselves to formulate a direction which, in all the circumstances, might, with respect, have better suited the situation, namely:

“

Members of the jury, you have heard that Shing (D2) has pleaded guilty to this offence and it is established as a fact that Shing actually committed it. The defendant relies on that and says that the presence of the pistol in his premises is explained by the fact of Shing’s commission of the offence.

We know from the evidence in this case that someone assisted Shing to commit this offence and that someone was present with him when it was committed.  It is your function to decide whether it is proved beyond reasonable doubt that the other person involved with Shing was this defendant. It is important for you to understand that the fact that Shing committed the crime, and has admitted doing so, is not evidence in any way that the other person involved was this defendant. It is a fact that has come before you because, on the case presented by the defendant, the presence in the defendant’s premises of the pistol used in the robbery is explained by the fact of Shing’s involvement in that crime.  On the other hand, the fact that Shing has committed the crime and has admitted that fact does not mean that the other person cannot be this defendant.”

18.  The circumstances will be rare in which it will be unnecessary for a judge to direct a jury that a co-defendant’s plea of guilty must not be regarded as evidence against the defendant but we have concluded that, in this case, to hold that the failure to do so constituted a material irregularity would be to favour form over reality.  The whole defence case was that D2 had admitted committing the attempted robbery and that he in fact had committed it.  For this reason, the defence had insisted on the addition in the agreed facts of the words: ‘Shing Man-ping committed the crime …’.  The clear implication arising from this is that this supported the applicant’s case.  For the judge to have said to the jury that D2’s plea should not be used to prove the applicant’s guilt ran the risk of undermining how the applicant was asking the jury to treat the plea.  Moreover, the judge’s comment in his summing up that Shing’s guilty pleas did not mean that the applicant “cannot also be guilty of [these offences]” carried with it the necessary implication that the applicant might not be the culprit.  We do not consider in the circumstances that the jury might have assumed that Shing’s plea could be used to prove the applicant’s guilt.

Miscellaneous criticisms of trial counsel

19.  All the remaining points raised by Mr Percy, which amounted to serious allegations levelled at a long-experienced member of the Bar, were wholly without substance.  This is a conclusion we were able to reach even without the explanations given by trial counsel in his affirmation.  There was not a semblance of merit in the suggestion of incompetence, let alone flagrant incompetence and the allegations should never have been made.

20.  The contention at (ii) that counsel should have suggested to Madam Au not merely that she was mistaken but might also be “lying” when she identified the applicant as the gunman is nothing short of absurd and counsel did quite enough in his cross-examination to leave open the question of a mistaken identification for the jury to resolve.

21.  The criticism at (iii) was an aspect of the case that trial counsel had very sensibly dealt with in the Admitted Facts.  Mr Percy’s suggestion of incompetence on the part of defence counsel because of a failure to cross-examine Madam Au about her inability to identify D2, presumably to bring the point home more forcefully, bordered on the ludicrous.  In the course of argument, Mr Percy put forward an example of the way in which he suggested trial counsel could have cross-examined Madam Au to demonstrate how she had mistakenly identified D2.  He submitted that a comparison could have been made between D2’s photograph and the identification parade photograph showing the actor who was mistakenly picked out by Madam Au.  Such cross-examination would, he suggested, have shown how wrong Madam Au had been.  In making this submission, Mr Percy conceded that he had no knowledge as to whether defence counsel had been supplied with the identification parade photograph showing the actor in question although he was ready to suggest that trial counsel may not have done his duty in this regard.  More significantly, Mr Percy admitted that he had himself not even bothered to make any photographic comparison between D2 and the actor so that he was not in any position to state whether there was any likeness between these two individuals, the very thing he was accusing trial counsel – without any basis for the suggestion – of having failed to do.

22.  In fact, it is apparent from defence counsel’s closing speech that he had adduced ample evidence on which to address the jury about the possible unreliability of Madam Au’s identification of the applicant as the gunman.  Defence counsel addressed the jury as follows:

“	So what does it come down to? You have somebody there at the identification parade, those two identification parades, who’s pretty casual about the whole thing, it’s not really that important, and who is just making a stab when it comes to trying to identify who were the robbers in that hut. Because, you may think, with her misidentification of Shing Man-ping, that’s precisely the picture that she presents of what she was up to at that identification parade.
	At the very least, members of the jury, at the very least, you may think that, in terms of her ability to identify anybody, particularly in circumstances where, at best, she could’ve only got a fleeting glance, she is not -- her ability to make an identification, her ability to observe, her ability to commit to memory what she has observed, and her ability to recognise must all, must all, be called into question, must they not? They must all be called into question.
	In other words, as an identifying witness, she is not of the quality that you would expect to find to make you sure that you can rely on her identification as a proper, correct and true identification, because her quality as a witness is not of that standard. Indeed, members of the jury, it is dangerous; it is dangerous because here is a woman who’s prepared to pick out somebody as a robber when, in fact, that person was not a robber - and that is the actor that she picked out instead of Shing Man-ping.
	It’s a serious thing, members of the jury. This is why I’m emphasising so much that, if you find, if you find, having regard to all that happened so far as [Madam] Au is concerned, that she is a casual, a casual sort of person, who is not -- somebody who does not regard their responsibilities as serious, which I suggest to you she is, that is just the sort of person who could make the tragic mistake of picking out somebody as a robber who, in fact, was not. She did it with the actor at the Shing Man-ping identification parade; she picked out the defendant at his parade. Was she making a tragic, terrible error? We say she was.” (Appeal bundle p. 171)

23.  The suggestion at (iv) that trial counsel had failed to cross-examine Madam Au on her witness statements is simply wrong (see: pages 105-109 of the appeal bundle) and the assertion at (v) is answered by the account Madam Au gave to the jury that, as soon as she had entered the identification parade room, she recognised the applicant but “wondered if there would be anyone who would look similar to him”.

24.  In the context of this ground, Mr Percy also made the submission that there could have been “no better case” in which to have made an application of no case to answer at the conclusion of the case for the prosecution.  The suggestion that trial counsel was fragrantly incompetent in failing to have made such an application was astounding having regard to the finding of the gun which was used in the attempted robbery at an address where the applicant was the tenant, coupled with Madam Au’s identification of him as the culprit.

25.  The alleged failure by counsel in (vi) to attempt to cut out the passage in the applicant’s interview where he had referred to D2 as an illegal immigrant to whom he gave a place to stay, caused no prejudice to the applicant.  On the contrary, it was an essential part of his defence which, if believed, would dispel the suggestion that D2 was his partner in crime.

26.  The complaint in (vii) is better dealt with under the 2^nd ground of appeal and there is nothing in the suggestion in (viii) that other eye-witnesses to the attempted robbery should have been cross-examined in the way suggested by Mr Percy.  Experienced counsel who conducted the defence at trial, wisely chose not to adopt such a course.

Directions on the approach to evidence about weaponry found at the applicant’s flat

27.  In the 2^nd ground, it was submitted that the judge was wrong, in relation to the pistol, the aerosol can of tear gas and the handcuffs, to have directed the jury in the following terms:

“	… You may wish to ask yourself whether the failure to hide those articles by Shing Man-ping [D2], or whoever put them there, can help you to decide whether or not the owner of the flat was that person’s partner in crime. Do you see the point?” (Appeal bundle p. 48)

28.  However, this single line in the judge’s directions which is criticised followed a passage which explains precisely why he gave this direction.  Immediately beforehand, the judge had said:

“

When it comes to considering the defendant’s explanation about the presence of the pistol, it is right that I deal with the admitted presence in his flat of the aerosol can of tear gas and the handcuffs. You may think their significance lies not in the fact that it is equipment, like a pistol, a robber may use but the fact that they were in different places in the flat with the tear gas on plain open view, not hidden, and the handcuffs only partially obscured, and this was at a time too, when the pistol was apparently covered by no more than loose paper bags.

Do not use the presence of these items, the aerosol and the like, in a way that merely engages prejudice in the sense that you must not say, ‘Well, he has got things like that in his flat, it means he must he guilty’, you have to look at their probative significance, that is, what they can prove.” (Appeal bundle p. 48)

29.  These directions also put into their correct perspective “the relevance and probative value of the presence” of these items as to which Mr Percy sought to attack trial counsel’s tactics when failing to object to their production in ground 1(vii).  The judge continued by saying:

“

Finally, let me say something about coincidence, for it is coincidence that forms the basis of the prosecution’s claim that the identifications, especially that of Madam Au, have support. The principle or argument that the law allows or follows is that odd coincidences can, if unexplained, be supporting evidence. In this case the prosecution say it is not just an odd coincidence that the man picked out by Madam Au by visual recognition just happens to have in his flat the second robber and the pistol which fired the bullet at her, if you accept the evidence of the firearms expert. They say that you can therefore rule out mistake by her, despite her fleeting glance, because she picked out and identified the man with these other powerful links to the crime. They say that cannot be just chance coincidence and that it demonstrates the identification to be a true one.” (Appeal bundle pp. 48-49)

Conclusion

30.  The case against the applicant was strong and the verdicts were neither unsafe nor unsatisfactory.

31.  The application is dismissed.