R. v. Sui Ching Chuen

IN THE COURT OF APPEAL

1994, No. 47
(Criminal)

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J U D G M E N T

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Ching, J.A. :

1. Two counts were laid against the applicant. The first was that on 20th November, 1992, outside Elizabeth House in Gloucester Road he together with the second Defendant, Hau Chuen Sum, and three others robbed three other men of $7,000,000 in Hong Kong currency and 600,000 French Francs, all in cash. The second was that he was in possession of a firearm while committing that robbery. He stood his trial alone. The second count against him was eventually discharged. He pleaded not guilty to the first count and, after a trial in which he did not give evidence, he was convicted and sentenced to imprisonment for a term of 10 years. He now seeks leave to appeal against that conviction.

2. It was not in dispute that the three men were robbed of the amounts on the date and at the place specified in the first count. It happened in mid-morning. The robbery was executed by four men, one holding a gun and the others each holding a knife. They escaped in a car driven by another man. The car had been reported stolen earlier that morning. After the robbery it was found abandoned in Aberdeen. In it were found, amongst other things, a Max Mara bag and three knives. The only question at the trial was whether the applicant was one of the robbers. There was no evidence of any other robbery involving large amounts of Hong Kong and French currency having taken place at or about that time.

3. None of the robbers was identified. The prosecution relied upon the evidence of a woman friend of Hau, a Ms. Ng Lai-kwan. Her evidence was given under an immunity from prosecution save for perjury. She had given numerous statements to the police and she was cross-examined at length upon the differences between the contents of those statements and her evidence. She explained that she had not given some answers because she had not been asked and she said that while giving her statements she was in fear of Hau, he not having been arrested at those times. No positive case was put to her. It was suggested to her that she was testifying against the applicant to save her own life.

4. Her evidence of events occurring before 20th November, 1992, may be summarised as follows. She was a friend of Hau who occasionally spent the night at her home. He left some of his clothing there. At her home, in the presence of the applicant, she had seen Hau playing with a gun, she had heard Hau say that he was going to get back money from those who deserved it, presumably meaning that it was right to get it back from them, and she had heard Hau, the applicant and others discuss how they would keep watch at an unspecified place to see the times when people would come and go. On a day in the earlier part of the month, at the request of Hau she had taken him some of his clothing in a Max Mara bag. She identified the bag found in the car as being that bag. On 19th November, 1992, the applicant procured three knives which he brought to her home and handed to Hau, who wrapped their handles in adhesive tape. She identified the knives found in the car as being those knives.

5. Her evidence as to the events on 20th November, 1992, may be summarised as follows. At about 12.30 p.m. that afternoon she received a telephone call from Hau who told her that he was in trouble and who asked her to meet him at the Hsin Kwong Restaurant in Aberdeen. She did so. With Hau were two of his friends, Ah Shing and Ah Ming. They all went back to her home. She went in a car with Ah Shing. When they got to her home she was told to go and did go to buy a radio because Hau was anxious to hear the news. She was also told to go and buy clothing for the men and this she also did. She was told to go and did go down to the car park with a travelling bag with Ah Shing and Ah Shing put something from the car into it. Back in her home the contents were taken out and she could see that it was money in Hong Kong and French currencies. She gave a detailed description of the packaging of the money. The men counted it and it was put back in her bag. She was told to put the bag in a cabinet and not to touch it. The men changed their clothes and threw away what they had been wearing together with the packaging of the money. They then went to a restaurant in Kowloon.

6. At that restaurant they met the applicant and another man whom she had met but whose name she did not know. They had a private room. A quarrel developed and she was sent back to her home to fetch the travelling bag and money. When she returned to the restaurant with it, money was distributed to each of the men present. Hau, Ah Ming and the applicant put their shares back into the bag and together went to the applicant's home. There the money was taken out again and she could again see that it consisted of Hong Kong and French currencies. The applicant was given his share and left.

7. A few days later, Hau handed to her the sum of 120,000 French Francs. She went on a trip to Europe and exchanged them for sterling. The sterling was brought back to Hong Kong where it was exchanged for Hong Kong dollars.

8. The applicant, who appeared before us in person, made numerous complaints. Some of them were misconceived. For instance, he claimed that the Judge had wrongly accepted the evidence of Ms. Ng. It is, of course, for the jury and not the Judge to accept or to reject evidence. He asserted that the Judge in his summing up had wrongly omitted to give a definition for the words 'benefit of the doubt'. As to that it is necessary only to say that in his summing up to the jury the Judge was at pains at each appropriate stage to remind the jury that they could convict only if they were sure of the applicant's guilt. He also argued that the Judge was wrong in failing to leave to the jury an alternative verdict of handling stolen goods. At one stage of the trial the Judge discussed this matter with counsel in the absence of the jury. The Judge made it clear that he thought that upon the evidence he had heard at that stage the only possible verdicts were guilty or not guilty of the offence charge. He left the matter by saying that it could be raised again at a later stage. It was not. Be that as it may, on the totality of the evidence there was no room for considering that a verdict upon handling would have been proper. The applicant raised other matters of detail with which it is not necessary to deal.

9. There was, however, one matter raised by the applicant which deserves consideration. In his summing up the Judge listed seven facts upon which he said that the prosecution relied. Included in them was the following:

"The fifth fact which the prosecution is relying on is Madam Ng's evidence that Hau and the others, including the accused, went to her home in Chi Fu Garden, and were anxiously wanting to listen to the news. They also asked her to buy clothes and shoes for them to change. The prosecution ask you to draw inferences from these unusual facts as to what might have happened before that, that resulted in such strange behaviours perhaps."

10. The applicant was never at the home of Ms. Ng on that occasion. In her evidence in chief, Ms. Ng never said that he was. Indeed, in cross-examination, she said on two occasions that he was not. The applicant points out that there was also no evidence that he had been at the Hsin Kwong Restaurant in Aberdeen. Mr. Bruce, who appeared for the Crown, with his customary fairness accepted the mistake at once. He did not appear at the trial. In view of the other evidence he asked us to apply the proviso.

11. The attention of this Court was drawn to the fact that in using the words cited above the Judge was not summing up the facts to the jury. He was summarising the case for the prosecution as he thought it was being put. Clearly, that is right on the wording. However, if that was indeed the case for the prosecution it ought to have been corrected. Unfortunately, neither the Judge nor counsel then appearing pointed out the error. It is, of course, for the Judge to direct the attention of the jury to the relevant evidence. In the end, the task of this Court is to decide what is to be done in the light of the admitted error.

12. The evidence of Ms. Ng as to this particular incident in her home was telling as against those who were involved. The men were in possession of large sums of money and they were counting it while, it may be added, the curtains were drawn for that purpose. They were anxious as to their position and took steps to render their identification more difficult and to dispose of the packaging. Quite wrongly, the applicant was said to have been involved in these matters. The error was material but the question then is whether it might have misled the jury.

13. The other evidence against the applicant has already been summarised. It consisted of his presence at and participation in conversations, his procurement of the knives, his presence when there was a distribution to some members of the group and the eventual distribution to him of his own share. The evidence was circumstantial. Indeed, it was substantial and none of it was met by evidence for or on behalf of the applicant. On that evidence this Court takes the view that notwithstanding the error that was made the jury could not have come to any verdict other than that to which it came.

14. The point made by the applicant must clearly be decided in his favour in that the mistake was made but no miscarriage of justice has occurred. We allow the application for leave to appeal but, treating the hearing as the hearing of the appeal, and applying the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap.221, we dismiss the appeal.