THE QUEEN v. CHAN YAN TO AND ANOTHER

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. These are applications for leave to appeal against convictions for robbery before Judge Leonard in the District Court.

3. It is not in dispute that on the 12th August 1987 at about 0520 hrs. two watchmen were on duty in the office of a construction site at City One in Shatin when three people entered the office and overpowered them. They were assaulted, pulled into a storeroom, blindfolded and detained. A large quantity of valuable building materials worth some $178,000, was then removed from the storeroom and, it would seem clear, loaded into two white goods vans. However it so happened that a foreman of the site arrived at about 0700 hours and saw one of the vans still in a nearby carpark. Four men approached the van from the direction of the construction site office and storeroom . Two of them entered the van which was at that time loaded with cartons. The van was then driven away while the other two men walked beside it as it moved slowly off. The front number plate had been concealed by a shirt hung over it which was then removed. As the van departed the foreman said he could see the registration number, DP 1359. It is not denied that that van is owned and was driven on that occasion by the 4th defendant, (D.4), the 2nd applicant here.

4. The 2nd Defendant at trial, (D.2), the 1st applicant here, was employed by a forwarding agent and again it is not in dispute, was in charge of another van, CH 9572, on the 11th August, the day before the robbery. He was sent by his employers together with another man, the 3rd accused at trial, (D.3), who was acquitted, to deliver some documents to the airport. However on the 12th, at about 1020 hours, both D.2 and D.3 came hack to their employers and reported that the van was missing from where it had been parked the previous evening. They said they had made inquiries about it from people in the vicinity. In that van had been a small loading trolley and it was not in dispute that the trolley was found at the scene of the robbery by the police on the 12th August.

5. Evidence was given by the owner driver of a truck that on the 12th August he has been hired and went to a carpark in Nam Cheong Street, Shek Kip Mei, near to where CH 9672 was eventually found by the police some six days later. Two white vans appeared, one of them being new and the other he described as "worn" and the property which it transpired was that which had been stolen was transferred from the vans to his truck. At the direction of the man who had hired the truck he then took the goods to a shop in Shek Kong where they were eventually recovered by the Police.

6. In his Reasons for Verdict the trial judge said that there was no evidence before him of any theft of the van CH 9672. It is submitted by Mr. Macrae, who appears for D.2, that in fact there was evidence that a report had been made by D.2 of the theft. it is true that such a report was made but we are satisfied that the trial judge was correct in finding, that that is not evidence as to the truth of that report. In the absence of any evidence from D.2 (or possibly D.3) he could only proceed on the basis that there was no evidence before him of the van having been stolen on the night of the 11th August, and therefore taken out of D2's control.

7. There was evidence relating to the keys for the van. Apparently at one stage there had only been one key which operated both the ignition and also opened the door, but that during the time when D.2 was in charge of the van a new ignition lock had been installed and there were then two keys needed, one to operate the ignition and the other to unlock the door. There were two ignition keys but only one door key.

8. In his Reasons for Verdict the trial judge went on to say that on the night of the 11th August D.2 had the keys. However Mr. Macrae has pointed out that D.2's employer, Mr. Leung Chik Tong, said that he had given a set of keys to D.2 which were returned to him on the 22nd August when he resigned. The other ignition key had been given to a Mr. Tam Wai Ming, a clerk in the freight-forwarding company. Mr. Tam gave evidence that he gave D.2 and D.3 instructions on the 11th August and of D.2 reporting the van as missing when he came to work on the 12th. However he said that he did not drive at all, having no licence, and he was not asked anything about having the other ignition key. It was certainly not suggested to him that he was in any way implicated in the robbery or had control of the van on the night in question.

9. D.2 did not give or call evidence. His counsel at the trial submitted at the close of the Crown's evidence that he had no case to answer but that: application was refused.

10. The question is therefore whether the trial judge, as a judge of fact, was entitled to infer, as he did, that on the evidence D.2 took part in the robbery.

11. In his reasons the judge said that to found on the circumstantial evidence that the van was used in the robbery. There was evidence that A2 had control of the van on the night in question. There was no evidence that he lost control of it. The only reasonable inference from the evidence before the Court was that D2 took part in the robbery". Mr. Macrae submits that that inference was not the only available one and that the van may have been stolen from the place where D.2 parked it on the night of the 11th August. That being so there was a gap in the Crown's case and the failure of D.2 to give evidence should not be used to fill that gap.

12. Authorities on the question of comment by the  judge in addressing a jury on the effect of the failure of an accused to give evidence are therefore helpful in the context of this case. In Sparrow^(l) Lawton L.J. refers to an unreported decision in Nodder where there was evidence of the accused being the last person seen with a murdered girl. Comment that the jury had heard nothing from him as to what had happened to her was held to be proper. In Sparrow⁽¹⁾ the relevant authorities were discussed at length. There the trial judge commented some 6 times, the last comment being very strong on the failure of the defendant to give evidence. It was held that he had gone too far and should not have said as much as he did. Absence from the witness box should not be equated with guilt. In R. v. Mutch⁽²⁾Lawton L.J. again considered this problem He referred: to dicta of Lord Alverstone C.J. in R. v. Corrie⁽³⁾ where the defendant was chairman of a club in which a police party found bookmaking being carried on in his presence. It was held that guilt could be inferred in the absence of evidence from the defendant that he was not personally involved. Lord Alverstone C.J. said -

"No inference should he drawn in support of a weak case from the fact that the defendants were not called; but when the transactions were capable of an innocent explanation then if the defendants could have given it, it was not improper once a prima facie case had been established, for the jury to draw a conclusion from their not being called."

In Bernard⁽⁴⁾ the defendant was secretary of a fraudulent company. He had signed numerous documents containing false and misleading statements but there was apparently no evidence that he must have known they were false. Again it was held that there was enough evidence of guilt, in the absence of an explanation.

13. In Steinberg v. R.⁽⁵⁾ there was evidence that a gun belonging to the accused had been used to commit a murder, and that he was in the vicinity at the time. Neither prosecutor or judge is allowed, under Canadian law, to comment on the failure of a defendant to give evidence but at p.56 Middleton J.A. said -

"     It may be that the evidence is very largely circumstantial, but the actual facts are known to, the accused, and he had the right, under the laws as they now exist, to explain them away by his own evidence. For example, he is not directly shown to have been in possession of his gun at the time of the murder. He was in possession of it at an earlier date. It may have been a mere. coincidence that the victim was shot by this gun, and that the accused was at the times of the murder only a few yards away. It is possible that the gun had been stolen, from his residence by the murderer. If so, he could have testified to the fact and the jury might have accepted his explanation. He might have been able to explain, how the cartridge, which apparently fell from the revolver while he was in the room, came to be there. He may have a satisfactory explanation as to how blood-stained overalls came to be found in his room. He might be able to deny that he made the compromising statements to the goal inmates, and the jury might readily have believed that the stories told were incredible; but, notwithstanding all the damning chain of evidence, he chooses to maintain silence.

    No comment may be made upon this to the juiy, but the law does not forbid jurors to use their intelligence and to consider the absence of denial or explanation."

The court considered, that there was no miscarriage of justice and dismissed the appeal.

14. The facts in v. Hall⁽⁶⁾ were very similar and, although the appeal was argued on different grounds this aspect was considered by Bisson J., who delivered the judgment of the court, at 619. He found no reason to doubt the safety of the conviction.

15. In Mutch⁽²⁾ Lawton L.J. commenting on the English authorities said

"In our judgment on the facts of Corrie's case Lord Alverstone C.J.s reference to the accused not being called was but one way of stating that an inference can be drawn from uncontested or clearly established facts which point so strongly to guilt as to call for an explanation; if no explanation is given when the circumstances are such that an innocent man would be expected either to give an explanation or deny, the basic facts, this is a factor which can he taken into consideration. As Professor Cross has pointed out in his book on Evidence whether guilt should be inferred from silence in this kind of case must depend on the facts. The facts of this case were very different from. those in R. v. Corrie. Nothing here was admitted or had been at any stage of .the police investigation."

He went on to say that the R. v. Corrie⁽³⁾ and R. v. Bernard⁽⁴⁾ were the type of cases which were "rare exceptions to the general rule that an accused person must not be assumed to be guilty because he has not given evidence." He refers to dicta of Lord Parker C.J. in R. v. Bathhurst⁽⁷⁾-

"The accused is not bound to give evidence that he can sit back and see if the prosecution have proved their case and that while the jury had been deprived of the opportunity of hearing his story tested in cross-examination; the one thing they must not do is to assume that he is guilty because he has not gone into the witness box."

16. Although the evidence here was not as strong as in Corrie⁽³⁾ or Bernard⁽⁴⁾ the trial judge considered that it was such as to lead him, in the absence of evidence from D1 of loss of control of the van, to infer as he did. The case against him was essentially that he was in charge of the van CH 9672 on the late evening of the 11th August. It is a white van Which could be described as "worn". Two white vans, one of them worn, were used to transport the stolen property in the early hours of the following day. A trolley kept in that van, CH 9672, was found at the scene of the robbery. The van itself was found six days later near the place where the goods were transferred to the truck. He had one of the two ignition keys to the van, the other being kept by a clerk in his company who did not drive. He was the only one authorised by his employers to drive the van. He had the only door key of the van and the evidence was that it had not been broken into.

17. Clearly this is a case where the evidence against A2 was not substantially in dispute. It was therefore to that extent within the case such as Corrie⁽³⁾ and Bernard⁽⁴⁾ referred to in Mutch⁽²⁾ There was ample evidence on which the trial judge could come to the conclusion that CH 9672 was one of the van used to transport stolen goods on the morning, of the 12th August. There was also the other evidence relating to his exclusive control of the van on that night.

18. As was said by Lord Diplock in Haw Tua Tan v. Public Prosecutor⁽⁸⁾ referring to a provision in the Singapore Criminal Code here by a defendant is called on to give evidence and warned of the consequences of failure to do so: "The inferences that the Court may draw from his failure to testify are not enlarged by the amendment to the Criminal Procedure Code; they are limited as they have always been to such inferences as appear to the decider of fact to be proper in the particular case having regard to all its circumstances". Earlier Lord Diplock has said, at p.405, that what inferences were to be drawn was a matter of "applying ordinary commonsense".

19. We have given the matter anxious thought. The case against D.2 was not overwhelming but we cannot say that the judge was wrong in coming to the conclusion that, in the absence of evidence of loss of control of the van, he could only infer that D.2 had taken part in the robbery. We are of the opinion that a properly directed jury could have come to the conclusion on the evidence before the court that the accused did have exclusive control of CH 9672 on the morning of the 12th August, and that the van was used in the robbery and that the applicant must therefore have been a member of the group that carried out that robbery.

20. The 4th accused (D.4) did give evidence and he adopted two-statements which he had made to the police. In these he said that the van which he owned and drove was hired on the 11th August and the arrangement was that he was to meet a man at 6 a.m. on the 12th. He did so and then drove to Shatin with two other men. There the man who had hired the van directed him to a construction site. Goods were loaded into the van and he helped the loading, of these goods, but in doing so he merely left the front part of the van, the driver's seat, went to the rear and assisted loading the goods from inside. Eventually the van was driven, on the directions of the other man to the Lam Cheong street carpark and the goods were unloaded into the truck. There was another white van there from which goods were being transferred to the truck. He was paid $300 for his services and the use of his vehicle hut said that at no time did he play any part in the robber, nor did he,know that the goods were stolen when they were loaded into his van.

21. The Crown's case depended substantially, on the evidence of the foreman. He made two statements to the police but was not cross-examined on them and an application was made to admit these statements before us, pursuant to Section 83(v)(i) of the Criminal Procedure Ordinance for that purpose allowed them to be put before us, de bene esse.

22. We are however quite satisfied that we should not grant leave to admit these statements. They are not evidence. They were available and were in the hands of defence counsel at the trial. He elected not to put them to the witness. It was a decision, made no doubt for good reasons, but the decision having been made we see no reason why we should allow them in at this stare.

23. We were referred^. to R. v. Mok Chong Keung & Others⁽⁹⁾ where depositions which had been used at the trial but not produced as exhibits were allowed to be produced at the appeal. That is a totally different situation and indeed in the final paragraph of that case Kempster J.A. explained that where a witness's statement has not been put to him at the trial it should not be admitted at an appeal. As he said "In itself it has no evidential value. It could have been used as a basis for the cross-examination of Shing Cheong-hung. The document will in no way assist us in determining the credit to be afforded to the evidence given at the trial". The application in that instance was refused.

24. From the evidence there could be no doubt that the driver of the van was D4. The only question for the judge was whether he knew what had been going on in the storeroom or as he said in his evidence, he was hired purely as a driver with a van and had no knowledge of the robbery.

25. The trial judge in his Reasons for Verdict said that there was a conflict between the evidence of the foreman who said the van was empty when he saw it and that four people came along, two of them getting in and the others walked beside it, and that of D.4 who said he had never left the van.

26. This is not strictly correct. D.4's evidence was that he did leave the driver's seat but went straight to the rear of the van, got inside and helped load cartons. Clearly that was some time before the foreman saw the 4 men coming, from the direction of the storeroom as by then the van was loaded. The judge was therefore entitled to say that there was a conflict between the evidence on this point between the foreman and D.4. He said he accepted the evidence of the foreman as truthful and he did not believe D.4.

27. There was evidence which on the face of it may have indicated the fact that the van was being used for an unlawful purpose in that the front registration plate had been covered by a shirt, which was removed when the van was driven away. In his statement to the police the 4th defendant seems to have admitted that he knew it was covered, although this is not totally clear. However this aspect was not gone into at the trial, the applicant was not cross-examined on it and the judge has not relied on this as one of the reasons for his verdict.

28. There were other grounds of appeal argued at length by counsel for P.4.

29. We have fully considered these, which are in relation to the evidence: We are however satisfied that the judge was fully aware of all these points and we do not consider that any of them are such as to cause us to have any doubt as to the safety of the conviction.

30. For these reasons both applications for leave to appeal are refused.

31. D.4 also appeals against sentence. That was one of 4½ years imprisonment. The trial Judge had given a discount of 6 months because he has a clear record. There was of course no question of a discount because of a plea of guilty.

32. We have taken into account the factors which have been so eloquently argued before us by his counsel. These are substantially that he not only has a clear record but has built himself up from very humble beginnings to the atage where he owns his own Van. There is a very favourable probation report. This does seem to be very much a "one off" incident with no suggestion whatever that he has ever done anything before of this nature.

33. This was a robbery in which two watchmen were assaulted, blindfolded and held in a storeroom. Nevertheless no weapons were used which is clearly a major, factor to be taken into account: There was full recovery of the property: Taking into account all those factors we feel that the sentence of 41/2 years imposed was excessive and we would allow the application, treat this as the hearing of the appeal and reduce the sentence to one of 31/2 years.

(1) 1973 57 Crim.App.R. 352

(2) 1973 1 A.E.R. 178

(3) 1904 68 J.P. 294 20 T.L.R. 365

(4) 1908 1 Cr.App.R. 218

(5) 56 C.C.C. 9

(6) 1987 1 N.Z.L.R. 616

(7) 1968 2 Q.B. 99 at 107

(8) 1981 3 W.L.R. 395

(9) Criminal Appeal No. 9 of 1986