HKSAR v. KWOK CHI KWAN

CACC 425/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 425 OF 2000

(ON APPEAL FROM HCCC 100 OF 1992)

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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):

Introduction

1. On 26 September 2000, the Applicant was convicted, following a trial before Deputy Judge Muttrie and a jury, of two counts of robbery (counts 1 and 3) and two counts of possessing an imitation firearm at the time of the commission of the respective robberies (counts 2 and 4). The Applicant was sentenced to twelve years' imprisonment for each robbery and to six years' imprisonment on each of the other two offences. The sentences on counts 1 and 2 were ordered to run concurrently. Similarly, concurrent sentences were imposed on counts 3 and 4, but these were ordered to run after three years from the start of the sentences on counts 1 and 2, making an overall sentence of fifteen years' imprisonment.

2. The Applicant now seeks leave to appeal against his conviction. He has not pursued an application in relation to sentence and so we dismiss that application.

Prosecution's case

3. The broad allegations made against the Applicant can be described very briefly.

4. A jewellery shop in Des Voeux Road West was twice robbed by four men in the space of a week. The robberies occurred on 14 and 20 August 1991. On both occasions, two of the robbers wielded weapons which had the appearance of pistols. A third robber had a bag for carrying the stolen jewellery. It was alleged that the Applicant was on both occasions that person. A fourth robber waited outside in a getaway car.

5. There was no dispute at trial that the robberies had occurred in the way the prosecution had alleged and most of the evidence in this regard was admitted under the provisions of section 65B and section 65C of the Criminal Procedure Ordinance, Cap. 221.

6. The Applicant provided two confession statements after his arrest. These were taken on 2 October and 3 October 1991 respectively. They contained admissions to his participation in the jewellery shop robberies and the use of toy guns to facilitate the robberies.

7. The initial confession contained admissions relating to the first robbery only. The Applicant said that he carried a black carrier bag to take away the stolen gold and jewellery and said that his gang had worn silk masks.

8. In the second confession statement, the Applicant made it clear that he had not held a gun during either of the robberies. He admitted participation in the second robbery and said that his accomplices were the same three men as before. The Applicant claimed that he had again used a black bag to collect the stolen items and that they had, as a gang, worn silk masks and used a getaway car. He claimed that after a night's reflection, he had decided to confess his full involvement.

9. Given that it was admitted that the robberies had taken place, the crucial evidence in issue at the trial, once the interviews had been ruled to be admissible, was concerned with whether the Applicant's confessions could be regarded as reliable evidence of his guilt.

10. Almost incredibly, the Applicant was granted bail. Not only was he facing very serious and strongly based allegations but, as emerged from the now abandoned application relating to sentence, he had previously served a long period of imprisonment for robbery. Not surprisingly, the Applicant absconded.

Defence case

11. The Applicant gave evidence at his trial more than nine years after the commission of the offences and he denied involvement in the robberies although, of course, he was not able to say where he had been at the relevant times. He also denied making the confessions which were alleged against him. He stated that he had only signed the first confession after he had been beaten up and given what was described as "water torture". There had also, he said, been a threat concerning his brother. When he gave a second statement on the following day, this was said to have been after he had been threatened with similar treatment.

The Application

12. The Applicant's notice of appeal against conviction reads in a way which bears little relationship to the oral application he has put before us today, although he did make the point that the judge appeared to have treated him unfairly during the trial.

13. There were, however, two important inconsistencies between the evidence of some of the eye witnesses and the Applicant's confessions to which the Applicant has referred in his application today. These were both left by the judge as issues to be decided by the jury.

14. The first apparent inconsistency was concerned with the description of the bag which the Applicant had said in his interviews with police he carried in both robberies. The admitted witness statements of the victims who were able to describe the bag gave descriptions which were very different to the Applicant's own description. The way this was dealt with by the judge reads:

"You will remember that Mr Chan for the defendant has pointed out to you the discrepancies concerning the bag, which according to the statement (of) the defendant (he) used to carry away the stolen ornaments. In both the statements, reference is made to a black bag. This does not accord with what the witnesses said. In his statement about the first robbery, Mr Tang mentioned a brown bag about 15 by 22 inches, the others did not mention any bag. In their statements about the second robbery, all the witnesses mentioned a red, white and blue nylon bag. It is for you to resolve this discrepancy. You may feel that it supports the defendant's contention that the police made up the statements. You may on the other hand wonder why if the police were going to make up statements for the defendant they would not take their information from the witness statements which were already in being." (Tr. p. 10)

This was plainly an issue to be resolved by the jury.

15. The second inconsistency of any note between the agreed prosecution evidence and the Applicant's confession statements related to the nickname of one of the robbers. One self-confessed and convicted robber (Fong Tin-choy) gave evidence on behalf of the Applicant at his trial. He said that in the initial robbery, the fourth robber was a man called Chan Kwok-hung, nicknamed "Tai Tau B". Two of the shop witnesses had thought that one of the robbers had been called by that nickname by the others in the gang. In the Applicant's confessions, no mention of this nickname appears. However, whilst the Applicant had disclosed the nicknames of the others, he had not disclosed his own.

16. It was therefore possible that Tai Tau B could have been a reference to the Applicant himself, with the witness Fong trying to assist the Applicant by committing perjury on his behalf. In the context, it is not unrealistic to suppose that perhaps a more likely scenario is that the nickname used was a false one, designed to put the police on the wrong trail. In any event, this issue, whatever the answer to it was, was more than adequately raised in the summing up and it is apparent, once again, that this was pre-eminently a matter for the jury's consideration.

17. Perhaps we should add that Fong Tin-choy also lent support to the Applicant's allegations that he had been beaten up in order to make a false confession. He was cross-examined about a prior inconsistent statement he had made and the jury were carefully reminded of this and how they should use caution in their approach to the inconsistency. This was necessary because the witness, in that statement, had in fact named the Applicant as one of the gang. By way of explanation, Fong Tin-choy told the jury that the police had forced him to name the Applicant.

18. The defence case was fairly and squarely dealt with in the summing up, particularly with regard to all the main issues raised in the trial. The summing up contained no misdirections, contrary to the way in which the Applicant has this morning attempted to persuade the court. The judge summed up with clarity and accuracy as to the law as well as the facts. There was more than sufficient admissible evidence before the jury to convict the Applicant.

19. The convictions were, in our opinion, not open to any criticism and accordingly this application is dismissed.