WONG SIU-YEE and Others v. R.

IN THE COURT OF APPEAL

1992, No 36
(Criminal)

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J U D G M E N T

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Nazareth, J.A. :

1. This is the judgment of the Court.

2. The three applicants were convicted on 16th January 1992 after trial before Wong J. and a jury, of one charge of robbery and each of a charge of possession of an explosive substance, namely home-made bombs, in connection with the robbery. The applicants were each sentenced to eight and a half years for the robbery, and to four and a half years for possession of an explosive substance, the sentences to run consecutively.

3. All three applicants now seek leave to appeal against both conviction and sentence. At the hearing on the 30th June, the applicants were informed that we would deal with their applications only in relation to leave to appeal against conviction, leaving sentence to be dealt with later.

4. The robbery took place on 1st August 1990 at the Kam Fuk Goldsmith Shop in Tuen Mun, when 80 gold ornaments of a total value of over $130,000 were stolen. It was shortly after 3 p.m. on that day that three men entered the goldsmith shop. They were wearing sunglasses and face masks. Two carried beef knives about 18" long and the third a black travel bag. The knives were put to the necks of a shop assistant and a customer by the two and the third jumped over a display cabinet and removed the gold ornaments and put them in the bag. Two alarms were activated and the robbers fled with their bag and knives. The 1st applicant, Wong Siu-yee ("D2"), who was the 2nd defendant at the trial, was arrested with Wong King-fu who was the 1st defendant at the trial and with Lai Po-chuen who was the third robber who entered the shop. After his arrest D2 was interviewed by the police in the early hours of the 2nd August and again at 5:35 that afternoon and made two statements.

5. The 2nd applicant Yip Chi-pang ("D3") who was the 3rd defendant at the trial, was arrested shortly after 6 o'clock on the morning of 7th August. He made an admission while being driven to the police station and about 9 a.m. at the police station made a statement.

6. The 3rd applicant Wong Man-fu ("D4") who was the 4th defendant at the trial below was arrested on the 4th January 1991 by a different team of police officers in connection with a separate offence of the theft of a vehicle and made a statement admitting that offence (of which he was later acquitted). He also made a statement including admissions relating to the robbery in the present case.

7. That bare outline of the facts suffices to introduce the applications. All three applicants were represented below, but only D3 was represented before us.

It is helpful therefore to begin with his perfected grounds of appeal which were settled by Mr Warwick Haldane who appeared for him before us. The first two perfected grounds of appeal against conviction, which tend to overlap, are as follows :

"1. The learned trial judge failed to fairly and adequately direct the Jury when he referred to the confession by the appellant.

2. In particular the learned trial Judge :

(a) although he elaborated on reasons why confessions may be given referred only to reasons detrimental to the appellant and did not indicate that sometimes they are obtained by brutality or threats or inducements. This amounted to an unwarranted and unreasonable inference. (Page 13 of Summing-up letters E to M).

(b) in directing the Jury to concentrate only on whether the confession was made and whether it was true failed to in anyway ask the Jury to assess the allegations against the police officers and their reliability, and the consequences on the confessions. (Page 13 and 14 of the Summing-up)."

8. To address these grounds it is necessary to consider the police evidence of the circumstances in which his statement was taken. D3 was 17 years of age at that time. His evidence of those circumstances both at the voir dire and before the jury ran to some 10 pages of typescript. The material substance of his evidence was that he was arrested at the Cheung Sha Wan Market where he worked with his father, and that he was assaulted while being dragged to the police vehicle, and again assaulted whilst being taken to Cheung Sha Wan Police Station on the way to the Tuen Mun Police Station. At the Cheung Sha Wan Police Station he was handcuffed to a chair and interviewed. He was very frightened. He was told that later when he was brought back to the police station he would be beaten.

9. He was then taken back to the police vehicle to be taken to Tuen Mun Police Station. On the way he was told by a police sergeant that he was being given a chance to be a Crown witness. He would be shown some statements and taught how to do it. His handcuffs were removed and he was told he was a prosecution witness helping the police. The sergeant told him that the only way he could save himself was to co-operate so he agreed. When the vehicle arrived at Tuen Mun Police Station he was again handcuffed. When he asked why, he was told he was a prosecution witness, the matter had to be kept confidential and people should not know about it. In Tuen Mun Police Station he was told to read papers shown to him and he was coached to write a statement. He also read the statements of others. When he read the statement written for him by the police he asked the policeman who had written it "From what you have written down you are saying that I took part in the robbery?". The policeman said "Now you are a prosecution witness and you have to be forceful. You merely say you knew something about it, you did not see anything, that is of no use." So it was wanted of him that he admit he was at the time the driver. He asked "If I do that will anything happen to me?". He was told "If you are a prosecution witness, the police will try to help you." He was told to familiarise himself with the contents of the statement.

10. Later, his father came in and then left to get a lawyer. Meanwhile he was threatened. Later his father came back, he was then writing the statement himself, and continued in the presence of his father and an expatriate lawyer. The policeman told him to sign it so he signed it. His father also signed it.

11. The police officers concerned denied assaulting, threatening or offering him any inducement or making up the statement. In his ruling on the voir dire, the judge accepted the evidence of the police officers in relation to D3. He said :

"With regard to the third accused, I simply do not and cannot believe that police officers would beat up, threatened and induce him to confess or dictate the passages to him or force him to sign and prepare statements in the presence of his father and also legal representative. His allegation is just absurd."

12. In his summing-up the judge dealt with the matter in the following way :

" The 3rd accused was interviewed by Detective Police Constable 22661, LEE Yau-cheung, and Sergeant 3717, CHEUNG Chun-kwong, and the result of that interview was the statement now before you as Exhibit P.62.

Members of the jury, there is nothing sinister about confessions. Obtaining confessions is a widely and indeed universally accepted method of investigation and detection of serious crimes. A genuine and true confession is good evidence against an accused without any other evidence. You can convict an accused solely on his confession without any other evidence if you believe that the confession is true.

After their arrests, suspects very often confess out of remorse or when they know that the game is up. They may also confess in an attempt to minimize their own roles or in the hope of gaining some advantage and for a variety of other reasons. They may have second thoughts later and start to make allegations saying that the statements were forced out of them.

The case of the three accused is that the statements are the products of police brutality and threats; the incriminating parts were fabricated or concocted by the officers who took the statements and they are utterly untrue. The 1st accused also suggested that he had been ill-treated by the police from the time of his arrest until his first interview some nine hours later when he was handcuffed and chained together with two others. This made him more susceptible and vulnerable to threats and violence.

On these issues, you have heard the evidence of the 2nd accused and the 3rd accused and the police officers against whom these serious allegations have been made. The officers all denied any impropriety. You have also heard the evidence of LAI Po-chuen. It is your task to decide two issues in relation to the confessions. First, you must decide whether or not the accused actually made them. Second, but only if you are sure that the accused did make these statements, you will consider whether or not what they said was true.

In determining that, you should take into consideration all the circumstances in which you find they were made or may have been made. If, for whatever reason, you are not sure whether the confessions were made or not sure whether they were true, then you must disregard them. If, on the other hand, you are sure of both that they were made and they were true, you may rely on them and give them such weight as you consider appropriate."

13. Mr Haldane developed his submissions on grounds 1 and 2 in the following way. The only evidence against the applicant he pointed out, was his cautioned statement. He pointed particularly to the following part of the summing-up quoted above :

"After their arrests suspects very often confess out of remorse or when they know that the game is up. They may also confess in an attempt to minimize their own roles or in the hope of gaining some advantage and for a variety of other reasons. They may have second thoughts later and start to make allegations saying that the statements were forced out of them."

He submits that the last sentence is a clear statement by the judge that those who are guilty may make confessions and may then lie and claim that their statements were forced out of them. That comment, his submission runs, puts out of balance the fair platform that should be constructed by the judge. The jury is not told at that stage that the statements can or may be the result of threats or violence or inducements. While the passage complained of could hardly be regarded as ideal, the jury could not have been unaware that statements can be the result of threats etc. and in our judgment the comment does not itself, as contended by Mr Haldane, upset the requisite balance of fairness in the summing-up. That said, it has to be taken in consideration in considering his complaints against the summing-up generally.

14. To proceed, Mr Haldane submits that the summing-up then went on to say that "the case of the three accused is that the statements are the product of police brutality and threats; their incriminating parts were fabricated or concocted by the officers who took the statements and they are utterly untrue". He submits that those words placed D3 in the ranks of those who have second thoughts and there should have been some reference to the other possibilities. The other passages do not dilute the criticism. The jury were not asked to consider what might be the effect of D3's allegations, the direction was inadequate and could have left the jury with the impression that even if they thought D3's allegations were true, they could disregard them if they thought the statement was true. Mr Haldane sought to reinforce those submissions by reliance upon the following dicta. First that the only issue for the jury is the probative value of the statement (Chan Wei Kwong v. R. (1967) 51 CAR 257). The jury should take into consideration all the circumstances in which a confession was made, including allegations of force, if they think those may be true, in assessing the probative value of a confession (Prasad v. R. (1981) 72 Cr App R 218, 221 per Lord Diplock). Those dicta are not disputed by Mr Saw for the respondent and are now well established. However, Mr Haldane seeks to rely also upon McCarthy v. R. (1980) 70 Cr App R 270 to which Lord Diplock referred in Prasad, in particular the two final paragraphs at p 272, and continuing at p 273, in support of his submission that first the judge should have fully recounted the evidence, and second ought to have directed the jury on the nature and effect of the inducements, threats and/or violence. However, we do not think that those paragraphs go that far; on the contrary, it seems to us that because of the "unusual features" in that case, the court considered it insufficient in the particular circumstances to rely solely on a direction about the burden of proof at the beginning of the summing-up, and that the jury should have been asked specifically to consider whether or not the statement contained the truth. In the result, having regard to the whole of the passage in the summing-up in question, we are not persuaded that it was less than fair in the respects complained of.

15. We turn then to ground 3 :

"Both in respect of Grounds 1 and 2 and generally the learned trial judge failed to fairly and adequately summarise the appellant's defence to the Jury. In particular the three line reference thereto failed to deal at all with any of the issues that ought to have been so summarised. (Page 17 letters K to L)."

16. Mr Haldane referred to the brevity with which the judge summed up D3's case in respect of the police allegations. The only possible (and inadequate) reference, he claimed is in fact wrong. The reference to police brutality and threats is a joint reference to all three defendants and omits to mention possibly the most important aspect of the applicant's complaint that he was induced by the request to be a Crown witness. It will be observed from the passages of the summing-up quoted above, that there is no reference to inducement, although the judge did refer to inducement in his ruling on the voir dire.

17. Mr Haldane refers to several authorities in support of his contention that D3's allegations in relation to the circumstances in which his statement was taken should have been put to the jury in the summing-up. Thus in R. v. Tillman [1962] Cr LR 261 it was held that "however weak a defence might be and even when it consisted almost entirely of denials, it was the duty of a judge in summing up to put before the jury the nature of the defence, reminding them very shortly about the evidence". The report carries the following commentary "It is a 'paramount principle' of our criminal law 'that when a defence, however weak it may be, has been raised by a person charged, it should be fairly put before a jury' : R. v. Dinnick (1909) 3 Cr App R 77. This principle has been constantly acted on by the Court of Criminal Appeal." In Fraser Marr (1990) 90 Cr App R 154 it was held that it is an inherent principle of the system of trial in England that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is entitled to have his case presented to the jury both by counsel and the trial judge. In R. v. Badjan (1966) 50 Cr App R 141 it was held that where a cardinal line of defence has been placed before the jury, but has not been referred to at all in the summing-up, it is in general impossible for the Court of Criminal Appeal to apply the proviso. The principle that the defendant is entitled to have his case fairly presented to the jury was not disputed by Mr Saw; his submission was that it had been fairly presented. Whether the principle has been complied with, must be a matter of balance in the particular circumstances of each case.

18. Turning then to address the circumstances of the present case, the nature of D3's defence, and the length and detail of his evidence have already been outlined. Although the trial itself straddled several weeks between the 10th December 1991 and the 16th January 1992, most of which was taken up by the voir dires of the three defendants, and a 10-day adjournment, the evidence of D3 was given on the 13th and 14th of January immediately before the addresses of counsel on the 15th and the summing-up on the 16th. The evidence of D3 which was concerned almost entirely with the circumstances in which his statement was given, must have been fresh in the minds of the jury and could not have been overlooked by them. It was presumably in recognition of this that Mr Haldane laid so much stress upon the absence of reference to the inducement in the summing-up. The inducement, it is well to remember, was in the nature of protection as a prosecution witness. In the circumstances of the case, the protection could only be protection from the violence and threats to which D3 said he had been subjected. When analysed therefore, the inducements can be seen to be in factual terms no different from the violence and threats that were referred to in that way. We are satisfied therefore that the jury could not have overlooked the inducements and must have dismissed them in the same way they dismissed the allegations of violence and threats. For those reasons we reject D3's grounds of appeal.

19. Turning then to the applications of D2 and D4, the former adopted D3's grounds, and while D4 did not expressly do so, in the way he simply repeated some of D2's words before this Court, he also in our view should be regarded as having adopted the submissions made on D3's behalf.

20. In substance D2's complaints were of a long sequence of assaults and oppressive conduct, and that the contents of his statements were dictated, that he was kept awake throughout the night of 1st August and searched early in the morning of 2nd August. In the written grounds of appeal in his Notice of Application for Leave, he complains that the judge misled the jury by saying that he believed that he, D2 was still full of energy and clear-headed when giving his statement at 12 o'clock midnight on 1st August 1990 though he was arrested at 3 p.m. earlier that day. But the fact, D2 says, was that he was ill that day. The jury took the words of the judge for it and wrongly believed that the statement was given by him willingly.

21. For reasons similar to those we have given in relation to D3's statement, we find no merit in D2's complaints in respect of his statement.

22. In addition in his Notice of Application he complains that he is unable to see without spectacles for near-sightedness and was wearing such spectacles when arrested whereas all the robbers were said to be wearing sunglasses. There is no merit in this ground.

23. He also states that there were a number of inconsistencies in the statement taken from him under caution and that he informed his solicitor of these but no mention of them was made to the judge or jury. From his explanation of the inconsistencies before this Court it is clear that there is no merit in the complaint.

24. He complained also that he saw some of the jurors asleep during his trial. Before the Court he confirms that his counsel mentioned the matter to the judge who apparently dealt with the matter to his counsel's satisfaction. Accordingly we see no merit in this complaint also.

25. Finally he complained that no adjournment was allowed to procure expert evidence of shoe prints taken at the goldsmith shop. We accept Mr Saw's explanation that such evidence would not have been of assistance.

26. For those reasons we find no merit in D2's grounds.

27. Turning to D4's application for leave, his complaint is that he was assaulted on three occasions, and made his statement after being threatened and assaulted by three police officers, that he was hit in the chest, back, stomach and shoulder, given three statements to read and told to make a matching statement. Those complaints must be rejected for the like reasons as those we have already mentioned in relation to D2 and D3. However D4 relies in his Notice of Application upon a different ground which he amplified before this Court. This relates to the first statement he made after his arrest, pertaining to a wholly different offence, which in the event was rejected by Wong J. in a different trial. His complaint is that the judge in both cases was one and the same person and that he was prejudiced in the exclusion of the first statement in the light of the admission of the second. In his ruling at the voir dire the judge dealt with the matter in the following way :

" In relation to the 4th accused, I have been reminded and I am fully aware of the previous ruling I gave in a voir dire in another criminal trial in which the 4th accused was also involved. The ruling speaks for itself and there is no need for me to explain or expand it here.

It was the unexplained injuries of the 2nd accused and the way officers of the Regional Crime Unit handled the case generally that cast doubt in my mind and, as a result, I have decided not to admit all the statements tendered by the prosecution, including statements made by the 4th accused. There was never any doubt in my mind t t (sic) officers who arrested the 4th accused and the officers of Kwai Chung Police Station had acted properly throughout.

The interview in connection with PP 62 was conducted by a completely different team of officers. And having observed their demeanour, I find them to be reliable witnesses. And also by the time PP 62 was taken, many hours had already lapsed since taking of the last statement by a different team of police officers."

Clearly the judge was entitled to differentiate between the two statements in the way he did; we find no merit in this ground also.

28. D4 also complained that two police officers together recorded his statement whereas only one at a time recorded the statements of the other defendants; that he was only 18 years old and no one was there to help him; that there were differences in the statements of D1, Lai Po-chuen, D2, and D4, but these were just ignored by the police officers; and that the length of time it took to make his statement was because the police made him prepare a first draft and then copy it into his final statement. We are unable to find any merit in these complaints also.

29. For the reasons we have endeavoured to give, we grant the applications of the three defendants for leave to appeal against conviction, treat the hearing of those applications as that of their appeals against conviction, and dismiss those appeals.

Re-Sentence

Power, V.-P.:

30. Each of the applicants seeks leave to appeal against their sentences. The sentence imposed in each case were eight and a half years for the charge of robbery and four and a half years on the charge of possession of an explosive substance. The trial judge when sentencing observed that it was a well planned and organized robbery, the clothes, sunglasses and face masks had been bought before the robbery and that two home made bombs were carried by the robbers. He accepted the evidence of Mr. Holland, the bomb disposal officer, that serious personal injuries could have resulted if anyone was present at the time the bomb exploded. He said that each of the applicants should go to prison for eight and a half years for the robbery and four and a half years for the possession of explosive substance and he ordered that those terms be consecutive.

31. Mr. Haldane, who appears for Yip Chin-pang, has pointed out that the defendant Lai Po-chuen who was sentenced after pleading guilty by Deputy Judge Sharwood received an overall sentence of imprisonment for eight years. He contrasted this with the sentence of imprisonment for 13 years imposed upon his client submitting that even if the fact of the plea of guilty is taken into account the disparity between the two sentences is so great that Yip Chin-pang is entitled to have and does have a sense of grievance.

32. This court has held that it will not interfere upon the basis of disparity except where the same judge sentencing defendants for the same offence has misapprehended the roles of the defendants. If another judge has sentenced a defendant for the same offence and imposed a lower sentence upon him than the sentence imposed upon the applicant, this will not of itself constitute a legitimate sentence of grievance. The court, in such circumstances, must look to see whether the sentence imposed on the applicant was unduly severe. He can only succeed in having that sentence disturbed if he can demonstrate that it was unduly long given the facts of the offence.

33. The other two applicants Wong Siu-yee and Wong Man-fu both asked the court to consider their age and both suggested that they did not play a major part in the offence. The task of this court in the case of all three applicants is to determine whether upon the facts the sentences were too severe. This was, as the judge observed, a well planned robbery in which weapons were used, the persons in the shop were terrorized and the intention was that a large amount of valuable jewellery should be stolen. As he said arms were carried which put the public at considerable risk. The overall course of conduct both of the planners and the participants displayed a high degree of criminality and severe sentences were called for. We are satisfied that the overall sentences of 13 years imposed were in no way too severe and that no complaint can properly be made against those sentences.

34. The applications for leave to appeal against the sentences are therefore dismissed.