THE QUEEN v. YU WING AND OTHERS

Headnote

                Notice of alibi put in as part of Crown's case - not to be done as a matter of course - Reg. v. Watts (1980) 71 Cr. App. Rep. 134 - such notice has no probative value in relation to its contents - It is a misdirection to tell the jury that if they are satisfied that the contents are false that fact can be regarded as corroborating the guilt of the accused on the charge to which the notice is directed.

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JUDGMENT

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McMullin, V.-P. :

1. On the 26th of September 1984 after a trial lasting 38 days, eight men were convicted of various offences under an indictment containing eleven counts. The charges arose out of a series of eight robberies and one attempted robbery carried out between the 12th of December 1982 and the 17th of October 1983 upon goldsmith shops on either side of the harbour. On each occasion the raid was carried out by three or four men acting swiftly in concert, one armed with a gun and the others with knives and on each occasion save one a large quantity of gold and other ornaments was seized and carried off. The proceeds of these crimes varied between $260,000 and $868,000.

2. Police investigation of these offences proved unfruitful until October 1983. Between the 11th and 17th of that month a police surveillance team was monitoring the movements of a number of persons in the Wan Chai area, their attention being particularly concentrated upon a residential building known as Tai Hei House situated at the junction of Burrows Street and Johnston Road.

3. At about 1:30 on the 17th of October the final robbery in the series was carried out at the Hei Hei Jewellery Company in Hennessy Road. One man armed with a gun held up members of the staff and two others armed with knives jumped over the counter and swept a quantity of gold ornaments from the showcases into a suitcase carried by one of them and then fled together with the man holding the gun. No shots were fired.

4. About three hours later a party of police officers arrested five men in Flat B on the 4th floor of Tai Hei House and recovered from the same premises a colt .45 revolver and a brown briefcase containing jewellery which was later identified as that taken from the Hei Hei Jewellery Company.

5. The men arrested at Tai Hei House were YU Wing, TANG Hung-kwong, LI Chun-yin, YAU Wai-hong and CHOI Hoi-keung. At the trial these became respectively the first, second, fourth, seventh and eighth defendants. They were tried together with three other men who were already in police custody: HO Chi-keung, KAM Kwok-fai and YAM Fei who became, respectively, the third, fifth and sixth defendants.

6. At the outset the case for the Crown would seem to have been that the first and second defendants were the prime movers in a conspiracy involving all the other defendants to rob goldsmith and jewellery shops in Hong Kong. The scheme which the prosecution set out to prove was, putting the matter in business terms, a well organized and lucrative robbery enterprise employing cross-border labour which could be secretly imported, employed, paid off and swiftly exported again after each successful venture. It is common ground that the third to eighth defendants are in fact illegal immigrants who, at the time of their arrest, had no legitimate status as citizens of this territory.

7. Thus, it is, that in the first count of the indictment Dl and D2 alone are charged as accused and are said to have conspired with the other five named defendants and a person unknown to "rob goldsmith and jewellery shops in this colony".

8. In the tenth count, Dl and D2 are charged with conspiracy to arrange the passage of unauthorized entrants contrary to the provisions of Section 37D(1)(a) of the Immigration Ordinance Cap. 115, the named, but not charged, co-conspirators being once again the third to eighth defendants.

9. In the 11th and final count, Dl and D2 are once again charged with conspiracy to assist these persons to remain in Hong Kong in breach of the provisions of Section 37DA(1) of Cap. 115.

10. The third to ninth counts are concerned with the actual robberies said to have been carried out by members of this syndicate between December 1982 and October 1983.

11. Dl and D2 were charged with only one of those robberies - that at the Hei Hei Jewellery Company on the day of their arrest, the 17th of October 1983. They were convicted after trial of that robbery together with D4, D7 and D8.

12. D1 and D2 were also convicted after trial of the conspiracy to assist the others to remain in Hong Kong but they were acquitted of the conspiracy laid in the 10th count.

13. D3, HO Chi-keung, was convicted after trial of the robberies laid in counts 2, 3, 4, 5, 6, 7 and 8. He was sentenced to 15 years' imprisonment on each of those counts, these sentences to run concurrently.

14. D5 was convicted after trial on the robberies laid in counts 5, 6, 7 and 8 and he received sentence of 14 years' imprisonment on each of these counts. The sentences to run concurrently. D3 and D5 are not seeking leave to appeal against either convictions or sentences.

15. D4, who together with D2, was represented upon the hearing of the appeal by Mr. Robert Whitehead, was convicted after the trial on the Hei Hei (count 9) robbery and received a sentence of 12½ years. D2 received sentences totalling 14½ years for the two offences of which he was convicted. Neither of these defendants now seeks to pursue his application for leave to appeal against sentence.

16. D6, YAN Fei, seeks leave to appeal against his conviction upon a single count of robbery (count 8) for which he received a sentence of 12½ years' imprisonment. He also does not wish to pursue his application in relation to sentence.

17. D7, YAU Wai-hong, and D8, CHOI Hoi-keung, who were convicted together with D1, D2 and D4 of the Hei Hei (count 9) robbery, seek leave to appeal against both conviction and sentence which, in each case, was 12½ years. D6, D7 and D8 were unrepresented at the hearing of the appeal.

18. D1, YU Wing, alone was convicted of the overall conspiracy to rob (count 1). He was sentenced to 4 years' imprisonment for that offence; to 12½ years for the Hei Hei robbery (count 9); and to 2 years for the conspiracy to assist unauthorized entrants (count 11). These sentences were ordered to run consecutively making a total of 18½ years. He seeks leave to appeal against both conviction and sentence. He was represented upon the appeal by Mr. Martin Lee, Q.C., Mr. Hartmann appeared for the Crown.

The Conspiracy to Rob (count 1)

19. At the conclusion of the prosecution case D2 was acquitted of this conspiracy by direction of the judge following upon submissions by counsel. We do not know what evidence the prosecution were hoping to adduce and which would have justified his being named as co-accused and not merely as one of the conspirators named in the subsequent particulars of the charge. It is conceded by the Crown that, while evidence of individual robberies would be relevant in support of the principal conspiracy charged, something over and above that would necessarily need to be shown in order to prove a general conspiracy to rob. Mr. Hartmann also concedes that there was no direct evidence at the close of the prosecution case to show that D2, D4, D6, D7 and D8 had entered into an agreement with D1 to carry out any such prupose. Indeed, so far as D6, 7 and 8 are concerned there was nothing to show that they were aware that they were joining in an association the purpose of which was to rob shops in Hong Kong over and above the evidence disclosed by a police surveillance operation (to which reference must later be made) which disclosed that D7 and D8 had been harboured in the Tai Hei House premises by D1 and D2 shortly before the Hei Hei robbery and had, at various times been shepherded about by those defendants and seen in their company in the several days prior to that robbery.

20. As for D6, the evidence did not even go so far as that since it consisted only of a confessional statement in which he admitted carrying out a certain robbery under threat from certain persons including Dl after which, having been remunerated, he returned to his home base in China.

21. It is clear that such evidence on its own would have been quite insufficient to establish that these persons had conspired with Dl for the purpose laid in the charge.

22. In view of the provisions of Section 66A of the Criminal Procedure Ordinance, Mr. Lee was unable to argue that the acquittal of D2 was of itself sufficient to dispose of the charge against his client. He puts it nevertheless that, with D2 out of the picture, the conspiracy charged against Dl was transformed into a wholly different conspiracy and one which is in effect, bad for duplicity since the form of it, as it now stands, merely masks the fact that what the Crown is seeking to allege is a series of separate conspiracies, variously hatched between Dl and the several named but not charged co-conspirators.

23. No doubt the exit of D2 coupled with this rather odd way of charging the conspiracy did leave the Crown vulnerable to this criticism. But the real question is whether there was evidence sufficient to show that any one had knowingly joined with the first defendant to carry out a scheme of the kind charged.

24. The trial judge rightly pointed out that, in the end, the prosecution were relying upon evidence which it was alleged showed that one of the named co-conspirators, HO Chi-keung (D3), had knowingly entered into a general scheme of robbery hatched by the master mind D1. From the Crown's point of view by far the most important witness in this regard was LUK Biu-cheung (P.W. 27).

25. This man told the court that he had known Dl and D2 in Canton many years before when, as youths, they had had a common interest in practising Chinese martial arts. He himself came illegally to Hong Kong in 1970 but thereafter he had managed to get an identity card and had engaged in import export business. He had business premises in Bangkok and an important part of his trade appears to have been with that city.

26. In 1979 after a chance encounter with D1, he and D1 and D2 had consorted with each other on a number of occasions for social purposes. Later he met various members of D1's family. Between 1980 and 1983 the acquaintance seems to have languished, but in May of the latter year he met Dl again and invited him to visit him in Bangkok. D1 said that he would not be able to make the journey but asked LUK to accommodate a friend of his who would be going there shortly. Some days later when LUK was in Bangkok at his home address, D3 turned up and introduced himself as D1's friend. Thereafter he stayed with LUK for some days.

27. By LUK's account it was not a wholly satisfactory visit since D3 borrowed money from him which he lost in gambling and then had to borrow again when he was leaving to go to the airport in order to pay the airport tax. D3 had had to sell a camera in order to repay some of these loans but there was still a sum of about $150 owing. Into the bargain, at some stage LUK became aware that D3 had a forged passport. At the trial a question arose as to whether he had made this discovery before or after he had assisted D3 to obtain the services of a lawyer for the purpose of obtaining for D3 a visa to go to mainland China. In evidence LUK said that this had come about after he had given him that assistance and that, once he knew that the passport was forged, he did not want to have anything more to do with him. In a police statement made prior to the trial it appears that LUK had said that he had directed D3 to the lawyer after he had discovered this dubious feature of his new acquaintance's character.

28. A point was taken on this by counsel as to the alleged failure on the part of the judge to give a sufficient warning to the jury on the question of LUK's credibility as a witness. It may be said at once that there is nothing in that point. It is true that LUK was giving evidence under Crown immunity but that fact was emphasized by the judge who, while correctly pointing out that LUK could not be regarded as an accomplice, reminded the jury that he may have felt that he had every reason to co-operate with the police and to maintain what he had said originally to them. The fact that the judge also pointed out that the reason for the giving of the immunity was not before the court cannot be regarded as destroying the force of the warning.

29. The important part of LUK's evidence concerns a conversation which, he alleged, had taken place between himself and D3 while the latter was staying with him. The import and flavour of this remarkable conversation can be gained from the following extracts from the witness's examination in chief.

Immediately after that the witness went on to describe how D3 had given him details of certain of these robberies coupled with an account of the exhilaration which he had experienced in the course of them; and then we come to the following:-

On their own, even if true, these revelations would have been hearsay in relation to Dl but LUK went on to describe how when he returned to Hong Kong he made an arrangement some weeks after his return, to meet Dl at a certain restaurant for the express purpose of taxing D1 with the claims made in his name by D3. The evidence in chief continues as follows:-

30. There was, in addition to this, evidence that a man known as "Boss Chau" -a man who, as the judge pointed out, was a "fence" or dealer in stolen goods - had on three occasions purchased gold ornaments from D1, on one occasion, eight days, and on another two days and, on the third, one day after the carrying out of certain of the robberies laid in the charges. There was evidence that on the day upon which Dl and the others were arrested, and prior to the robbery at the Hei Hei Jewellery Company, D1 had made an arrangement with Boss Chau to sell more of such merchandise to him later.

31. There was also the evidence that D1 had provided accommodation to D7 and D8 and that in company with D2 he had met them upon their arrival when they came ashore from a boat at the Chai Wan Pier on the 11th of October from whence they were whisked away in a black Mazda motor-car No. BY 3674 driven by D2.

32. There was evidence from members of the police surveillance team that on the 14th of October D1, D4, D7 and D8 were seen removing furniture from the boot of that motor-car and taking it into the Tai Hei premises which had been rented by D1.

33. Without the evidence of LUK Biu-cheung, all of this would have been insufficient to support the first charge against D1.

34. Accepting - as they were entitled to do - that LUK had spoken the truth, the jury had the following facts to consider in relation to that charge:-

35. If it could be said that that evidence left the matter finely balanced between the possibility that Dl acting as a solitary entrepreneur had conceived a scheme for self-enrichment which he implemented by hiring cross-border "labour" as and when the occasion presented itself and that D3 was simply one of his "casual labourers" and the alternative possibility that D3 had enthusiasticly joined in a scheme, hatched by D1 but of which D3 was aware, to employ such "labour", then, since these alternatives were not specifically, put to the jury, it might be said that the conviction of Dl upon this count was unsatisfactory.

36. We are satisfied that this evidence speaks so clearly of a plot to carry out robberies in Hong Kong by this method - a plot which, however hatched, D3 must have become aware of and involved-in in the course of his cross-border forays and residences over a period of many months, that it would be unrealistic to regard him as a casual "gun-for-hire" who was unaware of the precise nature of the scheme. The evidence against Dl on this count having been put fully and fairly by the judge we are satisfied that the conviction ought not to be disturbed.

The Robbery at the Hei Hei Jewellery Company (Count 9): Dl

37. The evidence against Dl on this count is firstly that of the surveillance team. What that amounts to is that he was seen together with D2 in the black Mazda saloon BY 3674 between 1:00 and 1:05 in the afternoon of the 17th of October. At about 1:20 or 1:25 the same car was seen parked outside the Best Food Restaurant in Yat Sin Street about a quarter of a mile away from the Hei Hei Jewellery Company. D2 was then alone in it. The robbery took place at some time between 1:20 and 1:30. It involved three men none of whom was ever identified as Dl.

38. At 1:50 D1 was seen entering the Atlantic Supermarket at Burrows Street looking somewhat hot and flustered. Some time after 4:00 p.m. he returned to the apartment of Tai Hei House to discover the police already there and D2, D4, D7 and D8 under arrest. A brown briefcase was found underneath a nylon bed in that flat and in the presence of D1, D2 indicated that Dl knew how to open the combination lock. Upon being invited to do so Dl, after some hesitation, opened the lock and within the briefcase there was found a quantity of gold ornaments which had come from the Hei Hei robbery.

39. Mr. Lee has not sought to contend that D1 is free of guilt in relation to that discovery. What he says, however, is that the judge failed to leave the alternative verdict of handling stolen property to the jury as, in counsel's contention, he ought to have done upon these facts.

40. Both D1 and D2 are charged as principals in this count. The evidence might certainly have supported the verdict on the basis of an accessory role for either of them - a point which is taken also by Mr. Whitehead in relation to his client D2. We agree. Clearly it would have been possible, had they been so directed, for the jury to find that, especially in view of all the evidence that had been adduced by the surveillance team, D1 was a prime counsellor and procurer of the offence. It may be that the jury so regarded him but on the directions which they were given it would not be possible to say that they might not have convicted him on the basis that he had in fact been one of the three men who actually entered the premises and who took part in the robbery. In the absence of any such direction we do not think that the verdict upon this count can be regarded as safe or satisfactory. It is conceded by counsel that in any event his client cannot escape an alternative finding of handling stolen property.

The Conspiracy to Assist Unauthorized Persons to Remain in Hong Kong (Count 11): D1

41. As to this count we need only say that the surveillance evidence to which reference has already been made and which covers also the period from the 11th of October to the 17th of October was amply sufficient to support the jury's verdict. The mere fact that D2 drove D1 to the Chai Wan Pier on the 11th at precisely the right time to receive D7 and D8 is in itself clear evidence of an agreement to do what was thereafter done viz.: harbouring and directing those two persons from then up to the time the robbery was carried out. Nor does it matter that no such evidence relates to D3, 4, 5 and 6 who were also named in that charge. There is no merit in Dl's application in relation to that charge.

The Case of D2

42. In his able address Mr. Whitehead did not seek to challenge the propriety of the conviction of his client on the 11th count. The only other charge with which he was concerned was the Hei Hei Jewellery Company robbery (count 9).

43. The evidence against him on this count was firstly the general surveillance evidence covering the 11th and 14th of October. Throughout he clearly figured as the driver of BY 3674 Although the trial judge, in a very long and in most respects admirable summing-up, put the evidence against D2 on this count very fully he once again made no attempt to direct the jury as to the nature of his alleged participation in the crime as disclosed by the evidence. There was nothing in that evidence to disclose a role of counsellor or procurer. It was the case for the Crown that he aided and abetted the others by being prepared in the car to assist in their get-away.

44. At about 1 o'clock D2 was seen by Chief Inspector Heptonstall driving BY 3674 with Dl and another man in it on the Oi Kwan Road. The Oi Kwan Road is a circuit road off which various other roads lead in various directions. The time then was 1 o'clock. He endeavoured to trace where it had gone and about ten minutes later he saw it parked in Cross Lane which is to the west of Oi Kwan Road and therefore some distance further away from the Hei Hei Jewellery Company than it had been when he first sighted it. He observed it for a while from a shop on a corner of Wing Cheung Street and Wood Road. He had met a sergeant of his team at that spot and as they were standing there they saw the car move towards Wing Cheung Street and disappear from view. The time then was about 1:12.

45. It is clear that the police information at that time did not include the identity of the targeted jewellery shop and the Chief Inspector and his sergeant moved after the car to the junction of Wan Chai Road and Morrison Hill Road arriving there at about 1:20 or 1:25. C.I. Heptonstall then turned into Yat Sin Street and saw the car parked on the right hand side of that street near the Best Food Restaurant.. D2 was in the car alone. The Inspcetor then moved to a multi-storey carpark in the near vicinity from the first storey level of which he looked back to see if the car was still there. It had gone. The time was about 1:32.

46. Shortly after that he received information concerning the robbery at the Hei Hei Jewellery Company and he made his way there and occupied the next few minutes in finding his way from that point back to the Best Food Restaurant with the object of checking whether the position in which he had last seen the car with D2 in it could be regarded as a reasonable position for a get-away car (see transcript of the evidence pg. 340). No evidence seems to have been given as to the length of time it took the Chief Inspector Heptonstall to make that journey on foot or as to the state of traffic in the area generally at about the time of the robbery.

47. The Chief Inspector went through the Best Food Restaurant to the rear of the premises to where he had seen the car parked originally. Shortly after that he came upon it in the Oi Kwan Road. It was parked at the side of that road to the westward of the complex of buildings around which the road travels and thus some distance nearer to Tai Hei House than it had been when he first observed it in Yat Sin Street. The time was then 1:50. He and the sergeant then made their way to the junction of Burrows Street and Wan Chai Road - the immediate vicinity of Tai Hei House - and it was at this point that he saw D1 cross the road from Burrows Street and entered the Atlantic Supermarket looking "somewhat flustered".

48. While there was evidenee that the robbery itself took less than two minutes to execute none of the shop-attendant witnesses purported to give an exact time to its commencement. Two of them agreed with the suggestion that it would have been between 1:20 and 1:30 p.m. (P.W.24 KWONG King-wan and P.W.25 CHAN Kwong-yuen). Mr. Heptonstall on the other hand had, as one would have expected in view of the nature of his duties at the time, made a note of the times at which he had observed the various events which he purported to describe.

49. Mr. Whitehead very sensibly does not maintain that the evidence is such that D2 could not have been in a position to lend assistance to the others as the get-away man. He is content to point out that the judge did not direct the jury to consider whether they were satisfied that in view of the times, distances and localities described in the evidence, he was in fact close enough to be an aider and abettor of the offence. Although by virtue of the provisions of Section 89 of the Criminal Procedure Ordinance an accessory to a crime may be indicted tried and punished as a principal it is nevertheless necessary, where the case presented against an accused person is that he was an aider and abettor to direct the jury as to what is comprehended by those terms.

50. In this regard counsel relies upon the old cases of Reg. v. Patrick Kelly⁽¹⁾ and Reg. v. Samuel Scares⁽²⁾ and to the principles propounded in Archbold, in part upon the authority of those cases, at paragraph 29-4 of the 41st edition.

51. To constitute a man an aider or abettor in an offence it is necessary to show that he was in such a position as to be able to afford aid and assistance at the time when the act was done. Such a direction was necessary in the present case and it was not given. In its absence and in the absence of any direct evidence that the car was used to pick up the robbers after the event, it would be difficult to say that, had such a direction been given, the jury must inevitably have come to the conclusion that it was so used. For that reason, and notwithstanding the contention of counsel for the Crown, we do not think that the proviso can be applied.

The Alibi Notices

52. This is a point which touches the cases of both D2 and D4. Both of these defendants gave notice of alibi in which they purported to show their location and movements on the 17th at about the time of the robbery which, if true, made it clear that they could not have been participants therein. Neither of them gave evidence in support of these notices. The notices were introduced in evidence as part of the Crown's case.

53. Dealing with the alibi notice of D2 the judge said:-

"First of all, he hasn't in fact adduced any evidence to that, but that is an admission on his part - what he intended to adduce. You take that into consideration and compare it with the evidence given by Chief Inspector Heptonstall, and then you may ask yourselves, if you accept Chief Inspector Heptonstall's evidence and reject this evidence, why was this false alibi notice or fabricated facts given to us. If you reach the conclusion, and only if you reach the conclusion, it is because he was one of those who took part, not necessarily went into the shop, but he was in the getaway car and formed part and had the same intention as the other defendants or the other robbers, I should say - who took part in the robbery."

Mr. Whitehead cites LEUNG Kam-kwok v. The Queen⁽³⁾ in which a brief flirtation by the Hong Kong Court of Appeal with a more relaxed rule in relation to the probative effect of exculpatory extra-curial statements made by an accused person (see CHENG Chiu⁽⁴⁾) was firmly reproved by the Board. He puts forward four interlinked propositions which may conveniently be summarized as follows:-

"Since this alibi notice contains no admission against the interests of the maker of the statement it is not probative of the truth of the contents thereof. It follows that the jury should not have been invited to consider whether what it contained was true or false and thus to measure the truth of the prosecution witnesses evidence by reference to any perceived falsity.

54. There is no doubt that the judges direction was wrong in law. Although such a notice has the status of an extra-curial statement, this notice did not contain an admission of any kind against the interests of the defendant. The notice itself has no probative value in relation to its own contents. In The Queen v. HO Kam-sum and another⁽⁵⁾ this Court drew attention to the decision of the English Court of Appeal in the case of Reg. v. Watts ⁽⁶⁾. In giving the judgment of the Court, Lawton, L.J. in the latter case said (page 141):-

"The primary purpose of an alibi notice is to alert the prosecution to the fact that an alibi may be relied upon as a defence, so that the prosecution may have the opportunity before the trial of making such investigation as they think fit. In the course of a trial an alibi notice may become relevant. What we do feel some concern about is the practice as a matter of course of putting in the alibi notice as part of the prosecution's case."

The court made it clear that it was not wrong to introduce such a notice as part of the prosecution's case but, having pointed to some difficulties which may arise as a result thereof, advised that counsel for the prosecution must be prepared to give careful consideration to doing so and, if he does so, must later be prepared to justify what he has done. Where as in the present case such a notice is introduced and the defendant declines to give evidence the judge should point out to the jury that the contents of such a notice cannot be regarded as evidence and he may then draw their attention to the fact that the defendant has given no evidence in support of the notice. He should leave it to the jury to make what they can of that.

55. If the defect in this direction had rested simply in the fact that the judge had identified the notice as an "admission" and as "evidence" and had then drawn the jury's attention to the fact that it conflicted with the evidence of the. Chief Inspector Heptonstall, it would be difficult to say that any damage had been done which was not reparable by the application of the proviso. But the passage as a whole makes it clear that he was advising them that they could regard the fact of the appellant having lied as proof of his complicity in the robbery, i.e. as proof of guilt. This is the substance of a fifth and separate point of complaint made by Mr. Whitehead under this head of his argument. The adverse effect of that direction is compounded by what was said earlier by the judge in relation to the fifth, seventh and eighth defendants who, although they had given no such notice of alibi, were permitted by leave of the court to give such evidence at the trial. In relation to that evidence the judge said (page 41 of the summing-up):

"It is one thing to come to the conclusion that they are lying, but if you are satisfied beyond reasonable doubt that the alibi of the 5th defendant is false and that the falsity has not arisen or come about by a mistake, panic or stupidity, you are entitled to regard the falsity of the alibi as corroborative of the guilt of the 5th defendant; and similarly speaking, you may take that approach in relation to the 7th and 8th defendants."

In The Queen v. HO Kam-sum, Li, J. A., having referred to the case of Reg. v. Lucas⁽⁷⁾ in which the Court of Appeal enunciated four criteria to be applied by the jury in considering whether lies told in court were capable of corroborating an accomplice's evidence, went on to say:-

"We do not think Lucas to have intended to change that which we believe to be the basic principle that lies by themselves do not prove guilt but that they go no further than confirming or tending to support other evidence. We are not here concerned with the issue of corroboration as either desirable or as a matter of law. In these circumstances a trial judge must be very careful to avoid giving the impression to the jury that lies by themselves may amount to proof of guilt."

56. When, in the case of D2, this damaging misdirection is put together with the failure to direct upon the question of aiding and abetting the objection to applying the proviso becomes greatly enhanced. There are, however, other considerations touching the case of D4.

The Case Against D4 in relation to the Hei Hei Jewellery Company Robbery (Count 9)

57. It may readily be accepted that, although the judge did not direct the jury in relation to D4 concerning the alibi notice in terms similar to those which he used when dealing with the case of D2, the jury must inevitably have applied themselves once again to the truth or falsehood of the contents of D4's notice as a test of guilt so that his case stood to be damaged by those directions in precisely the same way.

58. But the case of D4 stands in a wholly different position from that of D2 inasmuch as one of the shop-attendants purported to identify him as one of the robbers, and specifically as the robber who wielded the gun. Although the robbery was a very brief affair, the lighting inside the shop at the time was very good and CHAN Kwong-yuen (P.W.25), the particular assistant who was closest to the man with the gun, said that he paid full attention to him throughout. Nine days later he identified him on a parade and was positive in his identification. He was not shaken in cross-examination and he maintained that he was 100% sure.

59. Mr. Whitehead does not challenge the quality of this identification evidence. He concedes that a proper warning within the guidelines in Reg. v. Turnbull⁽⁸⁾ was given by the judge. However, he enlists the following passage in the judgment of Lord Widgery, C.J. (page 230):-

"The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so."

The trial judge did refer to certain items of evidence which he said might assist the jury when deciding whether or not P.W.25 had made a mistake. He was careful to add that such evidence did not amount to corroboration in law, He listed the following matters: the fact that six tiny particles of gold were found in D4's singlet when he was arrested which could, on the forensic evidence, have come from old ornaments; D4's possession of a forged British passport; his arrest at Tai Hei House in company with the seventh and eighth defendants whose finger prints were found at the Hei Hei premises; the fact that the first defendant had a briefcase with ornaments stolen from the Hei Hei when all the defendants were arrested; the seventh defendant's evidence that the fourth defendant had introduced him to the first defendant on the 14th of October and had taken him around several shops on the 17th; the fact that he had given a notice of alibi but had not given evidence in support thereof. Mr. Whitehead does not contend all of these matters are incapable of lending support to the correctness of P.W.5's identification of D4. He maintains however that certain of the items listed clearly could not do so and yet were very likely to be relied upon by the jury for that purpose. In particular he objects to the reference to the forged passport, to the "guilt-by-association" implication of the reference to D4 being found in the company of the other defendants in Tai Hei House and finally - and especially - the reference to the alibi notice.

60. This was not however either a "fleeting glance case" nor yet a case of observation under difficult conditions such as the court was concerned with in The Queen v. NGAN Chi-Shing ⁽⁹⁾. The need to identify such supporting evidence was said by Lord Widgery in Turnbull only to arise in such cases. Clearly it would be in such cases that mis-identification by the trial judge of supporting evidence would prove most damaging. But here, apart from the fact the identification evidence itself was good, there is the telling circumstance that D4 is discovered at Tai Hei House in close proximity to part of the proceeds of the robbery, a factor which Mr. Whitehead himself concedes might offer support to the identification evidence.

61. That situation is indeed not dissimilar from the example given by Lord Widgery in Reg. v. Turnbull (page 230 of the report) of a thief who snatches a woman's handbag and runs off, affording her only a fleeting glance at his face, but then runs into a house which is later identified as being that belonging to his father. Lord Widgery adds, after a series of such examples:-

"In our judgment odd coincidences can, if unexplained, be supporting evidence."

D4 did not give evidence. The forged passport and the possible falsity of the alibi notices were certainly not capable of supporting the identification evidence. The reference to association with the other defendants is questionable but on the whole, coupled with the finger print evidence, it may be retarded as part of the "odd coincidences" complexion of the discovery of D4 at the Tai Hei premises. In view of the strength of the identification evidence such misdirections as there may have been in relation to the supporting circumstances are in our view apt to be discounted by the application of the proviso.

The cases of D6, D7 and D8 - unrepresented upon the appeal

62. The evidence against D6 consists of a fairly lengthy confessional statement fully implicating himself in the commission of the robbery charged in the eighth count. The statement which was challenged as involuntary and concocted was admitted after the trial of that issue.

63. D6 gave evidence and denied having taken any part in the robbery at the Tung Sing Lo Goldsmith Shop on the 17th of June 1983. The confessional statement alleges that he was compelled to assist in carrying out that robbery by Dl and a person called Ah B; that he was suffering from a fever at the time and was under threat of being shot if he refused to rush in with the others.

64. His lengthy homemade grounds of appeal allege firstly that the judge did not put his defence to the jury. That is without substance. The judge devoted some fourteen pages of summing-up to the lengthy evidence given by the defendant in support of his contention that the statement had been concocted and that he had been brutally ill-used by the police in being forced to sign it.

65. The only other ground, added six months after the original grounds had been filed, alleges that the third and fifth defendants had intimidated him and prevented him from telling the truth in court. There is no substance in any of these representations which the sixth defendant did not seek to elaborate in any way at the hearing of the appeal.

66. Quite apart from the surveillance evidence the evidence connecting D7 and D8 with the Hei Hei Jewellery Company robbery was very strong. Upon his arrest D7 was, found to have a number of gold ornaments in his jacket pocket. Blue jeans which he had been wearing yielded 13 particles of gold upon examination by a police expert. His right palm-print was found on one of the showcases within the Hei Hei Jewellery Company. He gave evidence purporting to show that he had been conducted around various shops by D4 on that day, the implication being that his palm-print must have become applied to the showcase in that shop during the course of his perambulations. In common with D8 he claimed to have entered Hong Kong originally by swimming from Shum Chun. This, as the judge pointed out, is in clear contradiction of the evidence of the surveillance team as to the manner of the arrival of those two persons in Hong Kong.

67. As to D8, some tiny fragments of gold were found on trousers which he had been wearing and two of his palm-prints were found at the Hei Hei Jewellery Company. He too maintained that he had been conducted around some shops by D4 on the morning of the 17th but he said he could not explain how the particles of gold came to be on his trousers.

68. D7 and D8 had both submitted homemade grounds of appeal within time after their convictions, but at the hearing of the appeal they abandoned these and were given leave to substitute other written grounds which they then presented to the court. In these they both make the point that the certain photographs produced at the trial seem to show that the police had moved a particular garment from one place to another and had photographed it in different positions. This was urged in support of the contention that the police were arranging the evidence in some way and so must have planted the gold ornaments on D7 and the fragments on the clothing of both of them. There is no substance in this or indeed in the other points taken by them.

69. Indeed the only point that might be made in favour of the appeal of either of these defendants is one which they do not make. It arises from that passage at page 41 of the summing-up, to which reference has already been made, where the judge directed the jury that they might consider the falsity of the alibi evidence as corroborative of their guilt. This direction is in a measure repeated in the case of D7 at pages 98 and 99 where the judge comments upon the contradiction between the defendant's account of how he arrived in the territory and that given by the police.

70. Notwithstanding these misdirections, for which again the proviso is available, are satisfied that the evidence against D7 and D8 was so clear and conclusive in its character that there is no danger that any miscarriage of justice can have occurred.

71. D6 has abandoned his application for leave to appeal against sentence but D7 and D8 maintain theirs. At the conclusion of the hearing we advised them and also Mr. Lee for Dl, the only other defendant interested in the question of sentence, that we would deal with sentence when we had concluded upon the question of convictions in relation to all the applicants.

72. The upshot of the application in respect of conviction is as follows: we grant the applications of D1 and D2 in respect of count 9 and treat the hearing of the application as that of the appeal in each case. The convictions of these defendants are quashed and the sentences are set aside. In the case of D1, we substitute a verdict of guilty of handling stolen property and we will hear counsel on sentence in respect of that substituted charge. D1's appeal against conviction on the 11th count is dismissed.

73. The applications of D6, 7 and 8 in respect of conviction are refused as is the application of D4 in respect of his conviction on count 9. We will hear counsel for D2 on the question of retrial on count 9.

(1)    (1820) R. & R. 421

(2)    (1802) R. & R. 25

(3)    Privy Council Appeal 36 of 1983

(4)    (1980) H.K.L.R. 50

(5)    Cr. App. No. 695 of 1983

(6)    (1980) 71 Cr. App. Rep. 136

(7)    (1981) 1 Q.B. 720

(8)    (1977) Q. B. D. 224

(9)    Cr. App. 1150 of 1983