THE QUEEN v. CHEUNG KIN PING

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JUDGMENT

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Silke, J.A.:

1. The Applicant, Cheung Kin Ping, was convicted on the 29th November 1984, before Macdougall, J. and a jury, of the offence of robbery. He was sentenced to a period of 12 years imprisonment.

2. He now seeks leave to appeal against that conviction. He originally also sought leave to appeal against the sentence but has, with the leave of the Court, withdrawn that application.

3. On the 6th January 1982, at about half past nine in the morning, two security guards arrived at the Park In Commercial Building and went to the Transport Department, situated on the ninth floor, to collect moneys paid for licence fees. One of those guards had a metal box secured to his waist by a belt and chain and into it was put the cash and the cheques collected.

4. The guards left and while waiting at the lift, were approached by four or five men. Guard Chan was attacked by two of those men, one of whom had a pistol and the other a knife. His belt was cut and the box was removed. As a result of the attack he suffered knife injuries upon his face and thigh. Subsequently, the second guard who was also attacked developed a serious mental condition.

5. The Applicant was originally charged with others, went to trial but absconded in the course of that trial, and after his statement had been admitted in evidence, on the 11th July 1983.

6. He was subsequently apprehended and tried alone. The evidence against him consisted of his cautioned statement which he retracted, that of the accomplice, Cheung Hung Lee - who had already been convicted upon his own plea of participation in the robbery and who had given evidence at the first trial relating to the other participants - and, peripherally, the evidence of the absconding. His defence was an alibi. He gave evidence.

7. It is sufficient to say that the cautioned statement coupled with Cheung Hung Lee's evidence was ample if believed, to show the full participation of the Applicant in the robbery.

8. Cheung Hung Lee was, not surprisingly, severely attacked in the course of cross-examination. The trial judge fully and completely directed the jury on the issue of accomplice evidence and in the nature of the man, Cheung Hung Lee; on the attack made upon the cautioned statement, on the alibi defence, on the evidence of the Applicant and on all matters ancillary to the trial.

9. No issue of any kind is taken in relation to the summing up. Indeed in an affidavit placed before us, the reason for which and its contents I shall return to in a moment, counsel then appearing for the Applicant commented as to the summing up by quoting the words of Sir Edward Marshall Hall:

                "If I were innocent, I would not want to be tried by a fairer judge."

Mr. Alderdice, who appears for the Applicant in this Court, advances one ground of appeal and that is, if he will forgive my encapsulation of his rather lengthy grounds dated the 30th January 1985, that there was evidence available at the trial which was not called but which, had it been considered by the jury, might well have caused them to come to a different view as to the credibility of the accomplice Cheung Hung Lee and that there was good reason for its not being called.

10. He asks us to entertain that evidence as "fresh" evidence. It is that of the wife of the Applicant and of one other witness, Cheung Hung Lee. It consists of an allegation, and I quote from the second paragraph of the grounds:

"An incident whereby an unwarranted demand with menaces was made of the Appellant's wife Ho Mei Chun before the Appellant's trial, $80,000 was demanded of her in lieu of which it was claimed that Cheung Hung Lee would go to court to give adverse evidence against the Appellant."

 

11. In order that the matter should be fully investigated, we have adjourned the hearing of this application on several occasions. We have before us affidavits filed by the Applicant, by his wife, Madam Ho Mei Chun and by both counsel who appeared in the Court below. We have also the transcript of the trial of the go-between Chan Chow Sing, who is known as "Tai Chai", in which the allegations of a demaud involving the accomplice were ventilated. In that trial in the District Court, Chan Chow Sing was charged with obtaining property by deception. The prosecution evidence came from the Applicant's wife, Madam Ho, and the accomplice, Cheung Hung Lee. There were introduced at the trial previous statements made by Madam Ho. They were used in cross-examination for the purpose of testing her credibility.

12. The District Judge, in acquitting Chan Chow Sing, said of both Madam Ho and the accomplice:

"As a judge of fact who had both seen and heard those two witnesses, I found that neither of them had told the Court the whole truth. In fact, I formed the impression that both had lied to the Court."

 

13. Now, we accept that on the issue of credibility it would be open to another Court, having heard the witness, to come to a different conclusion. But Madam Ho, who had made a report to the Independent Commission Against Corruption and who had made to them the statements to which I have referred, gave before the District Court evidence directly contrary to the contents of those statements and evidence which was, to put it at its mildest, ambiguous. But the credibility of Madam Ho is not the main issue here. There is no proof of evidence from Cheung Hung Lee for the reason that he refused to make any statement to those advising the Applicant.

14. The evidence which Mr. Alderdice seeks to adduce before this Court - and we have looked at, de bene esse, all the matters to which I have earlier referred, affidavits, records of proceedings and prior statements - would only be "fresh" in the sense that it would be heard for the first time in the present case were we to accede to his application. It was available at trial. There was a conscious decision by counsel then appearing not to introduce it.

15. It is clear that if Madam Ho were to give the evidence expected of her, that is the demand for $80,000 for the accomplice and her agreement to pay it so that he would not give evidence adverse to the Applicant, then she would have to be warned by the trial judge as to the possibility of her incriminating herself. It is equally clear that the Crown, if that evidence were introduced, would be entitled to call rebutting evidence and this might well have meant cross-examination of Madam Ho on the basis of the statements she had given to the Independent Commission Against Corruption. Further, by introducing such evidence, the defence would have been attacking the accomplice on two contradictory grounds, first, that he was attempting to frame the Applicant because of some unspecified grudge and secondly, that he was giving the evidence did as a result of his own corrupt offer and because he had not been paid. There was a suggestion that he had rejected whatever advances were made to him. The defence could quite easily have found themselves impaled on one of the grounds.

16. What concerns Mr. Alderdice, and it is the high water mark of his submissions, is whether, looking at everything that transpired, this Court should entertain a lurking doubt sufficient for it to order a re-trial so that the matter could be fully ventilated before a jury. He attempts to strengthen his argument by suggesting that at the trial  some improper pressure was placed by the Crown upon counsel then appearing for the Applicant. He bases this on the contents of the affidavit from that counsel.

17. Defence counsel at the trial of the Applicant was fully aware of the dangers inherent in taking the course which we are now asked to take. He sought an assurance from the Crown that Madam Ho would not be prosecuted were she to give the evidence. Counsel for the Crown, quite rightly, stated herself to be in no position to give such an assurance. The go-between,Tai Chai, could have been on a frolic of  his own in an attempt to exploit the situation or he could have been the go-between assisting in an attempt to pervert the course of justice instigated by the Applicant and his friends.

18. We have no doubt that counsel for the Crowd very properly made it clear to the defence the course which she would be forced to take were the wife to go into the witness box and equally the course that the trial judge. might feel it is his duty to pursue.

19. We have, under the provision of section 83(v) of the Criminal Procedure Ordinance Cap. 221, the power to receive the evidence of any witness in the course of our proceedings, should we think it necessary or expedient in the interests of justice to do so. As we have said, the evidence sought to be called now was available at the time of trial, its credibility is highly doubtful and its nonintroduction was the conscious and reasonable decision by counsel. Mr. Alderdice has not persuaded us that that decision was in any way clouded by matters which should not have been in counsel's mind.

20. In those circumstances, we would refuse to hear additional evidence and, there being no other possible grounds of appeal, we would refuse the applicantion.