HKSAR v. CHU KWOK KEUNG AND OTHERS

IN THE COURT OF APPEAL

1990, No. 597
(Criminal)

BETWEEN

-------------------------------

------------------------------------------

JUDGMENT OF THE COURT

------------------------------------------

Macdougall, V-P

1.  The applicants and one co-accused were originally jointly indicted in an indictment that contained four offences which fell into two pairs.

2.  The first two offences, which were alleged to have been committed on 7 January 1990, were robbery and possession of firearms at the time of committing a robbery. The second two offences were conspiracy to rob, which was alleged to have been committed between 1 January and 11 January 1990, and possession of arms and ammunition without a licence, which was alleged to have been committed on 11 January 1990.

3.  The 2^nd and 4^th applicants were indicted in respect of the second pair of offences only, but the other applicants were indicted in respect of all offences. A third co-accused, Cheung Man-fai (“Cheung”), pleaded guilty to the robbery and conspiracy to rob counts and became a witness for the Crown in the ensuing trial of the applicants and their two co-accused.

4.  During the course of the trial Deputy Judge Gall, as he then was, acceded to a submission that the 1^st, 2^nd, 5^th and 7^th applicants (A1, A2, A5 and A7) be tried separately from the 3^rd, 4^th and 6^th applicants (A3, A4 and A6).

5.  In the first of those two trials, both of which were held before the deputy judge but with different juries, A1 was convicted on all four counts, A2 was convicted of the second pair of counts, A5 and A7 were both acquitted on the first pair of counts but were convicted on the second pair. The co-accused, one Yuen Kam-chuen (Yuen) was acquitted during the course of the first trial when, after a voir dire at the conclusion of which his statements to the police had been ruled inadmissible, the Crown offered no further evidence against him.

6.  In the second trial A3 and A6 were convicted on all counts and A4 was convicted on the second pair of counts.

7.  The applicants were sentenced to the following concurrent terms of imprisonment:

A1: 15, 9, 11 and 7 years respectively

A2: 11 and 7 years respectively

A3: 15, 9, 11 and 7 years respectively

A4: 11 and 7 years respectively

A5: 11 and 7 years respectively

A6: 15, 9, 11 and 7 years respectively

A7: 11 and 7 years respectively

8.  They all apply for leave to appeal against both their convictions and sentences.

9.  We adjourned the hearing of the applications of A1 and A4, both of whom were unrepresented, to a date to be fixed. The hearing of the applications of the remaining applicants then proceeded.

10.  The evidence led by the prosecution at the first trial was as follows. The accomplice, Cheung, testified in examination in chief that A1, whom he had known for some years, had suggested to him that he should come to Hong Kong with four other persons to work in a wholesale fashion business. As a result, arrangements were made by one Chung Chai in Canton for Cheung together with A3, A5 and A7 to enter Hong Kong illegally by boat on 2 January 1990.

11.  On reaching Hong Kong they contacted A1 and were taken by him to a flat where they were introduced to A4 and spent the next few nights. During the course of the following few days A1 provided the four mainlanders with money and clothing and entertained them. They “ate and went around places for fun”. During the course of a visit to a tea house they met A6, who was a friend of A7 and had recently come to Hong Kong illegally. Since A6 had been unable to find work, A1 suggested that he join the others at his flat.

12.  On 6 January A1 informed A3, A5, A6 and A7 that his business had collapsed and that he had fallen into debt to loan sharks who were pressing him for repayment. He told them that they should look for other accommodation and seek other employment. They replied that as they did not have Hong Kong identity cards they would return to China by boat. A1 told them that, left to their own devices, it would not be easy for them to leave Hong Kong but that he would make arrangements to get a boat for them within a few days. That evening he told them that the loan shark had again pressed him for repayment of the debt, and suggested that they assist him in committing a robbery, the proceeds from which would enable him to rent a place for them and to repay the loan shark.

13.  On hearing this, they became afraid and said that they had never committed a robbery. A1 sought to re-assure them by saying that there was no need to be afraid because there would only be seven or eight girls at the place where the robbery was to occur and that all that had to be done was to point a gun at them and take money. A1 then handed A7 and Cheung a handgun each, saying that he, A1 would carry a third handgun.

14.  At 2 a.m. the following morning A1, A3, A5, A6, A7 and Cheung were taken to the Silver Spring Sauna. A1 told A3, A5, A7 and Cheung to enter the basement in which the premises were situated and carry out a robbery of the girls inside while he and A6 remained at street level maintaining a lookout for police.

15.  After the four men had entered the premises A7 and Cheung pointed their handguns at the female employees while A5 ordered one of the employees to hand him the money kept in a drawer at the cashier’s counter. A5 then placed the money in a plastic bag brought for that purpose. After the robbery had been carried out the four men left the premises and re-joined A1 and A6 at the entrance. The group then hailed two taxis and returned to A1’s flat where A1 took the robbery proceeds, which amounted to $6000, recovered the handguns from A7 and Cheung, and departed with A4, who had not participated in the robbery. The other members of the group spent the night in A1’s flat in the absence of A1 and A4.

16.  On the following day, 8 January, Cheung, A3, A5, A6 and A7 were taken by A1 and A4 to tea as usual. They told A1 and A4 that they were frightened and asked to be sent back to China. A1 replied that they would have to wait about three days for a boat, but that in the meantime he had rented a cubicle for A3 and A6 because his own flat was too small to accommodate all five of them. A3 and A6 were then taken to these new premises and were accommodated there. A4, A5, A7 and Cheung continued to reside in A1’s flat.

17.  On 10 January they all met again at a tea house, A1 told them that he was waiting for a friend who might be able to set up another robbery for them that evening. A3, A5, A6, A7 and Cheung said that, having committed the robbery at the Silver Spring Sauna, they were frightened and wanted to return to China. A1 replied that he had spent “several ten thousand” dollars on them and that since the sauna robbery had realized only $6000 it was insufficient to repay the loan shark. He expressed the hope that they would obtain several ten thousand dollars by committing the second robbery and that if they assisted him in carrying it out he would arrange for a boat to return them to China on 13 January. However, they still maintained that they were frightened and wanted to go back to China.

18.  When at 3 p.m. it became apparent that A1’s friend was not going to arrive, the entire group went to A1’s flat and waited while A1 went out to find his friend. At about 11 p.m. A1 returned. He and A4 then took the mainlanders to a cooked food stall to await the arrival of A1’s friend. A1 explained that the friend was employed at a gambling stall and would later take them there to commit a robbery. Eventually, the friend, one Chan Chi-fai, arrived. After a brief discussion with A1 he left. A1 told A3, A5, A6, A7 and Cheung that some of them would be given guns with which to threaten the victims and that the others would seize the money, that this would be their last robbery and that they would be returned to China on 13 January. He said that he, A4 and Chan Chi-fai would also participate in the robbery and that, after deducting the money owing to the loan shark, the proceeds would be divided between each of the eight participants. According to Cheung, A4 took him aside and gave him a handgun.

19.  Soon afterwards one Yuen Kam-chuen arrived and told A1 and Cheung that the time was ripe to carry out the robbery. The entire group then discussed the plan of operation. Accompanied by a man carrying a portable telephone, who was unknown to Cheung at the time but whom he later learned was A2, the group followed Chan Chi-fai to a building several streets away. When they reached the staircase entrance to the building they were accosted by police officers. A6, A7, Yuen Kam-cheun and Cheung fled up the staircase but, on reaching the top, found that their way was barred by an iron gate which was secured with a padlock. Cheung threw his handgun through a window before the pursuing police succeeded in apprehending them. The other applicants, who had not attempted to escape up the staircase, were arrested by the police after a brief chase in the street. A handgun iwht rounds of ammunition scattered around it was found on the rooftop of a building adjacent to the staircase. It had sustained damage consistent with that caused by having been dropped from a height. Two other abandoned handguns were found in a nearby lane.

20.  Evidence was given by Mr. Heard, a forensic firearms expert with qualifications in advanced analytical chemistry techniques, that he had conducted ferrozine tests on the hands of A2 and A4 at 4 a.m. on the morning of their arrest and had found that within six hours preceding these tests both applicants had handled one of the discarded handguns that had been found by the police near the scene of arrest.

21.  None of the applicants gave or called evidence before the jury in either trial.

A2

22.  Mr. Sedgwick, who appeared for A2 in this court but not in the court below, submitted that A2’s convictions on the two counts on which he stood trial, namely, the second pair of counts, conspiracy to rob and possession of arms and ammunition, were unsafe and unsatisfactory and should therefore be quashed.

23.  He complained that the judge, when directing the jury on what evidence was capable of amounting to corroboration of the testimony given by the accomplice Cheung, failed to give any further direction as to what evidence was capable of amounting to corroboration in respect of A2.

24.  We do not think that there is any substance in this contention. Although the judge did not direct the jury as to what evidence was capable of corroborating Cheung’s testimony implicating A2 in the second pair of counts, Mr. Sedgwick was unable to refer us to any evidence as to which the jury were likely to form the mistaken view was capable of amounting to corroboration of Cheung’s testimony against A2. On the other hand, it was to A2’s advantage that the judge failed to direct the jury that the evidence of the ferrozine test performed on A2 by Mr. heard was capable of corroborating Cheung’s testimony. Mr. Sedgwick also referred us to a passage in the summing up where the judge mentioned that Cheung had testified that A2 had given a gun to A5 on the night of 11 January. In fact, Cheung had testified that A2 had told him that he had given a gun to A5. We do not think that this inaccuracy was material. Whether A2 had told Cheung that he had given a gun to A5 or whether Cheung had seen him do so, the effect was much the same in so far as A2 was concerned. However that may be, earlier in his summing up, the judge correctly recited this evidence to the jury and his direction to them made the matter abundantly clear.

25.  Mr. Sedgwick also complained that in giving evidence before the jury concerning the police operation in which the applicants were arrested, a police officer, having been asked to state where he was in the course of the operation, replied that he had been “laying an ambush” at a cooked food stall in Tung Choi Street near the Sik Wai Sin restaurant where he and his team were posing as customers of the stall and waiting for the arrival of “the suspects”.

26.  However, although objection had initially been taken by defence counsel at the trial to the officer’s use of the words “ambush” and “suspects” they informed the judge at the close of the case for the defence that they did not want him to direct the jury that they should ignore that aspect of the evidence.

27.  Moreover, in the light of the scale of the police operation, it was inevitable that the jury would have concluded that it was not by sheer coincidence that the officers were present in such force at the scene of arrest. For them to have come to any other conclusion would have been completely unrealistic.

28.  Lastly, Mr. Sedgwick referred to the following passage in the summing up:

“The third matter that you could take into account is that CHEUNG Man-fai, if you believe him, said that whilst in Lai Chi Kok the 2^nd accused brought pressure to bear upon him to omit the 2^nd accused from his evidence and to get him to persuade him to speak to other accused to persuade them to do the same thing.”

29.  Mr. Sedgwick contended that the judge should have gone on to tell the jury that such conduct was as consistent with innocence as it was with guilt in that an innocent A2 might well have attempted to persuade Cheung not to testify that he was involved in the crimes alleged against him. The judge, however, did not leave the matter there. He went on to say this:

“But if it is your view that the only reasonable inference to be drawn from the words is that if you believe that they were said was that the accused was trying to persuade CHEUNG Ma-fai because he had some involvement, then you may take that into consideration.”

30.  We think that no reasonable jury, having been told that they could use that evidence against A2 only if they thought that the only reasonable inference was that he had some involvement in the alleged crimes, would have failed to realize that the only remaining possibility was that A2 was an innocent man attempting to persuade Cheung not to testify that he was involved.

31.  Mr. Rodway appeared on behalf of A3, A5, A6 and A7 in this court but not at trial. Although there is some overlapping of their respective grounds of appeal we will deal with each of them in the order which he adopted.

A5 and A7

32.  During the course of his cross-examination by counsel for A1 at the first trial, Cheung was referred to a statement that he had made to the police in which he said that on 6 January A1 had taken out a cloth bag from underneath a bed, had withdrawn three handguns from it and had handed one each to A5, A7 and Cheung himself. In response, Cheung disclosed for the first time that, on seeing the guns, he and his companions told A1 that they were not willing to participate in a robbery, and that A1, having given a gun each to A4 and Cheung, pointed the third gun at them and told them to carry out the robbery. This sudden and belated revelation, no hint of which had emerged in examination in chief, quite obviously took A1’s counsel completely by surprise, as no doubt it did prosecuting counsel. Later in cross-examination Cheung amended this evidence by asserting that A1 had pointed two guns and that A4 had pointed one gun at him, Cheung, and his fellow mainlanders.

33.  Cheung’s explanation for not having mentioned this incident much earlier was that he had only recalled it two nights prior to his disclosure of it in cross-examination. He added that A1 had threatened him and his companions by telling them that they had spent his money, that the loan shark was pressing for payment and that he wanted them to help him to commit the robbery. By pointing the gun at them A1 was coercing them to obey him. Cheung said he became frightened that A1 would harm his family, whose address A1 claimed to know, and that had it not been for A1’s threatening behavior he would not have participated in the Silver Spring Sauna robbery. He was not sure, however, whether the others would have refused to do so.

34.  Under further cross-examination he modified his testimony and said that he had not told the court about A1’s pointing of the gun and making threats because he, Cheung, was worried about his own safety and that of his family, but that since he had been asked about the matter he had frankly told the court what had happened.

35.  He then went on to explain that none of this new revelation appeared in his statements to the police because, although he had told the recording officer about the incident, the officer had told him that he could tell the court about it. If that were true it did not sit comfortably either with his failure to disclose the incident in this testimony in chief or the fact that, at a time when he was represented by counsel, he pleaded guilty to both the very robbery that he was now asserting that he had committed under duress and to being a party to the later conspiracy to commit robbery at the gambling stall. Moreover, notwithstanding his assertion that A1 and A4 were pointing guns at him and his mainland colleagues, he also claimed that A1 took back the gun from A4 and handed his own two guns to A7 and Cheung – a most remarkable act by a man who a moment before had been threatening both A7 and Cheung with a gun.

36.  Cheung was exhaustively cross examined by counsel for A1 on the statements which he had made to the police. There was only one passage in those statements in which he gave any indication that he and his fellow mainlanders had felt that they were under any pressure to commit the robbery. This related to an incident which he said had occurred at 10 a.m. on 6 January when A1 told Cheung and the mainlanders that his fashion company had collapsed, that he was unable to continue to provide them with accommodation and that they would have to find a job for themselves. When they replied that they did not hold identity cards, A1 suggested that since he had several handguns he would lead them to commit a robbery and that all they had to do was to threaten the cashier and the other employees with a gun and take the money from “the drawer”. Cheung said that under these circumstances he and his companions had no choice but to submit to A1’s will.

37.  Having testified that he had been armed with a handgun provided by A1 and had entered the Silver Spring Sauna premises to carry out the robbery by threatening the staff with it while A1 remained outside, Cheung explained that A1, who was also armed with a gun, had one of Cheung’s companions with him. The inference to be drawn from this was that A1 was holding the companion as a form of insurance that Cheung and the others would carry out the robbery.

38.  As to the conspiracy count Cheung said in cross examination by A1’s counsel that at about 11 a.m. on 10 January he and the mainlanders were at A1’s flat when A4 withdrew the cloth bag from under a bed, told them that it contained guns, and took it to the cooked food stall where he gave one gun to Cheung. He agreed that no one had pointed a gun at him in relation to the proposed gambling stall robbery. However, later in cross examination, he said that before they left the flat to go to the cooked food stall A1 told them that this would be the last offence that they would be asked to commit and that if they did not do it “something harmful might be done to our family (sic)”.

39.  Mr. Rodway accepted that since the evidence that the applicants had taken part in the events which gave rise to the two offences had not been challenged the only relevant issue for the jury to decide was duress.

40.  He contended, however, that the convictions of A5 and A7, were unsafe and unsatisfactory, because, apart from evidence of an oral admission by A5, the only evidence implicating him and A7 in the commission of both offences came from Cheung, who made out the defence of duress.

41.  Mr. Rodway submitted that the Crown was bound by Cheung’s testimony because prosecuting counsel had not sought to treat him as a hostile witness. We at once observe that such part of Cheung’s testimony that would have furnished a basis for treating him as a hostile witness did not emerge until cross examination by counsel for A1.

42.  Moreover, since A1’s counsel then embarked on a vigorous cross examination of Cheung which was designed to discredit his belated testimony that A1 and A4 had exerted duress on him and the other mainlanders, the issue of Cheung’s credibility in that regard was squarely before the jury. It would have been an empty exercise for prosecuting counsel to have sought leave on re-examination to treat Cheung as a hostile witness. There being no dispute as to the physical involvement of A5 and A7 in the sauna premises robbery or as to their presence both at the hatching of the conspiracy to rob and, then outside the premises at which the proposed robbery was to occur, and their flight when the police presence was announced, there was ample evidence of A5 and A7’s guilt in respect of both offences provided that the jury were satisfied beyond reasonable doubt that duress had been disproved. It did not matter that the basis on which they could reject the possibility of duress was the discrediting of that aspect of Cheung’s testimony by cross examination by counsel for A1. There was no need for any additional evidence to be called in order to negative the defence.

43.  In our opinion the judge was clearly correct in ruling that both applicants had a case to answer on both counts. Lord Lane CJ, in delivering the judgment of the court in R. v. Galbraith [1981] 1 WLR 1039 at 1042 laid down the following test:

“(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

44.  We repeat, the issue of the involvement of the applicants in the crimes alleged was not disputed. The jury were therefore properly left to decide whether Cheung’s vigorously challenged testimony concerning duress might possibly be true or whether they should reject it as untrue. Indeed, as Cheung himself said, he did not know whether his companions would have committed the Silver Spring Sauna robbery had there been no alleged duress. Since both of them declined to testify, there was no evidence of their actual state of mind, but merely evidence from which the jury might infer it.

45.  It was further submitted that the judge erred in failing to direct the jury adequately or at all upon the burden and standard of proof which lay upon the Crown in negativing the defence of duress. After having given clear directions – which Mr. Rodway accepts are unexceptionable – as to the law on duress, the judge said:

“So, your decision is difficult but reasonably clear cut. If you find that at the time the moment the robbery was committed where the guns were held, the possession of the guns, at the Silver Spring robbery in respect of the first and second counts, if you find at that time that a reasonable person of reasonable firmness would have believed that he had been threatened as to his life or with serious injury and such reasonable person would not have, at that time, committed the robbery because of those threats, and that was what operated on the mind of the accused at the time, then you will acquit. If you find that that was not operating on his mind then you will consider the rest of the evidence but you will not consider that duress has been made out; and when I say “made out”, it is not a matter of the defence proving anything, it is a matter of the Crown showing on the face of its own evidence that there was no duress.”

46.  Later, when dealing with A5, he said:

“If you find on all the evidence that the Crown has not negative, has not shown you, that duress was not operating on the mind of the third accused then you will acquit. He has to be free of duress.”

47.  When referring to A7, he told the jury, inter alia:

“the defence of duress, and again not a defence that needs to be proved by the accused but one that has to be disproved by the Crown, operates in respect of [A7] accused in exactly the same way as it operates in respect of [A5].”

and,

“All I have said about duress applies to [A7]. Unless you are sure that each element of each offence which he faces has been made out by the Crown then you may not convict him. Only if you are sure of his guilt, given the application of law that I have directed you to make, you may convict.”

48.  In addition to an impeccable direction on the general burden and standard of proof, the judge also gave the following direction to the jury regarding inferences:

“When you draw inferences or when you consider what inferences you might draw, you might find that there is more than one possible inference. Where that occurs you may only draw an inference which is against the interest of an accused if it is the only reasonable inference to be drawn. If there are two competing inferences, and one is in his favour and one is not, you must take the one in his favour, because he has to prove nothing. He had no onus upon him and he has the benefit of the doubt.”

49.  We are of the opinion that the judge made it abundantly plain to the jury that the burden of proof rested on the Crown and that in respect of any inference that might be drawn they must give the accused the benefit of the doubt. We think it is fanciful that the jury might have thought that the Crown bore some lesser burden than that of proof beyond a reasonable doubt in negativing the defence of duress.

50.  Mr. Rodway also submitted that the verdicts of the jury on the third and fourth counts relating to the conspiracy and the associated possession of arms and ammunition offence, were inconsistent with their verdicts on the first and second counts, which concerned the robbery and its associated possession of arms and ammunition offence. It was his contention that once the jury had concluded that A5 and A7 were or might have been subject to duress in respect of the events to which the first two counts related, it was not logically possible for them to come to a contrary conclusion in respect of the events with which the third and fourth counts were concerned.

51.  Superficially, this is an attractive argument. But, as the evidence which we have already outlined clearly shows, there was a period of four days between the duress which Cheung said was exerted in respect of the robbery and that which he said was brought to bear in connection with the abortive robbery at the gambling stall. Moreover, in respect of the latter incident, neither A1 nor A4 had pointed a weapon at Cheung or the applicants nor had they made any threats of physical violence to the applicants. The duress that Cheung said had been brought to bear on that occasion was a threat that if they did not carry out the proposed robbery “something harmful might be done to our family (sic)”.

52.  The jury were perfectly entitled to find that not only was the duress that was said to have been exerted on the second occasion too remote but that the duress which occurred or might possibly have occurred on the first occasion had dissipated over the intervening four days. It must not be forgotten that after the commission of the robbery on 7 January and the group’s return in two taxis to A1’s flat, A1 and A4 then departed, leaving the applicants alone at the flat. There was therefore ample opportunity for the applicants to escape. Mr. Rodway submitted that it was impractical for them to do so because they were ignorant of Hong Kong conditions and, not having identity cards, would have been vulnerable to arrest by the police. These considerations, however, do not appear to have deterred the applicants in entering Hong Kong illegally in the first instance or in exposing themselves to the risk of being found without an identity card when they went into the streets and visited restaurants both before and after the Silver Spring Sauna robbery.

53.  The jury could properly conclude that although the applicants might be given the benefit of the doubt as to whether the Crown had negative the possibility that duress had been exerted on them in relation to the robbery, they were not acting solely as the result of threats of death or serious injury either to themselves or their families when they agreed to carry out a robbery at the gambling stall and at the time that they were in possession of arms and ammunition on their way to commit it. It was for the jury to decide on each occasion whether it was reasonably possible that the applicants were subject to duress. Because they concluded that duress existed or might have existed on the first occasion, it did not logically follow that they must come to the same conclusion in respect of the second occasion, particularly when the evidence as to what had occurred on each occasion differed.

54.  It is clear from R. v. Durante (1972) 56 Cr. App. R. 708 that an applicant who seeks to obtain the quashing of a conviction on the ground that the verdict of guilty on a count on which he was convicted was inconsistent with a verdict of not guilty on another count has a burden cast on him to show not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference, but that they were so inconsistent as to call for interference by an appellate court. We do not consider that the verdicts were inconsistent at all, let alone inconsistent to that extent.

55.  Mr. Rodway further submitted that, having ruled inadmissible A5’s written cautioned statements and a written post recording of an oral admission which the prosecution alleged that he had made at or about the time of his arrest, the judge erred both in admitting that oral admission into evidence and in directing the jury that they could rely on it as evidence of guilt.

56.  The prosecution evidence was that when A5 was arrested and told by the arresting officer that the reason for his arrest was that the officer had reason to believe that he had conspired with others to rob an illegal establishment at the mezzanine floor of the Sik Wai Sin restaurant, he replied, “I was only responsible for finding a bag to contain the money.”

57.  The reason that the judge excluded the written statements was that he was not satisfied that the characters in those statements had been written by the applicant unaided by the statement taking officer.

58.  A5’s case was that he had not made any admission to the officer on arrest. Although the issue whether any admission had been made was one for the jury to decide, the judge heard a submission from A5’s counsel that he should exclude the admission on the ground that it had been made to the same officer who had recorded the written statements including the post recording of the oral admission, all of which had been ruled inadmissible. At the conclusion of counsel’s submission the judge ruled that he was satisfied that the Crown had proved the statement to be voluntary to the required standard. He then rejected a further submission that he should exercise his discretion to exclude the admission on the ground that its prejudicial effect outweighted its probative value.

59.  Assuming that the question as to whether the issue of the admissibility of the oral admission, which the applicant alleged had not been made, had properly been one for the judge to decide, we are not disposed to say that he was wrong to believe the evidence of the arresting officer that the oral admission had been made in the manner and circumstances in which he said it had been made. The judge was entitled to conclude that although he was not satisfied that A5 had written the characters in his statements without assistance, he had nevertheless made the oral admission as alleged by the officer on arrest.

60.  Whether the admission had been made and, if so, whether it was of an incriminatory nature, were issues for the jury to decide. The judge left those issues to them. We reject the complaint that, in the light of the evidence of duress, the judge erred in directing the jury that they could rely on the oral admission. First, the judge did not suggest to the jury that they could convict the applicant on that admission alone. Secondly, since it was uttered by A5 o his arrest for the offence of conspiring to rob the gambling stall, it was evidence which the jury could use to assist them in deciding whether he in fact conspired to rob and, if so, whether it cast any light on the issue of duress. They were entitled to take the view that this was not the reply of a man who had acted under duress but was the admission of a participant who was attempting to explain that the role that he was to play in the intended robbery was of a minor nature only.

61.  Lastly, it was contended that “the convictions were unsafe and unsatisfactory because there was no corroborative evidence against A7” and no evidence capable of corroborating the case against A5 apart from an alleged oral admission, the admissibility of which was challenged.

62.  We do not agree. The absence of corroborative evidence does not of itself render a conviction unsafe and unsatisfactory. In the present case it was accepted on behalf of the applicants that they had participated in the offences of which they were convicted. That part of Cheung’s evidence was not the subject of dispute. Their defence was that of duress. And for this they were relying on Cheung’s testimony. For the reasons we have given, the jury, even if they believed the whole of that testimony, were entirely justified in concluding that the defence of duress did not succeed in respect of the second pair of counts.

63.  We are of the opinion that the grounds of appeal advanced by both A5 and A7 must fail. Their applications for leave to appeal against conviction are therefore refused.

64.  We now turn to a consideration of the grounds of appeal advanced by Mr. Rodway on behalf of A3 and A6 in respect of their convictions in the second trial.

65.  Initially, Mr. Rodway submitted that in his final speech to the jury prosecuting counsel had wrongly sought to persuade them to disbelieve Cheung’s testimony that A3 and A6 had been subjected to duress to commit the offences on which they stood trial. It was his contention that, having called Cheung as a prosecution witness, the Crown was bound to accept his testimony in totol and that prosecuting counsel was not entitled to invite the jury to reject any part of it.

66.  At the conclusion of argument on these applications in May this year we stated that we would take time to consider the submissions that had been made to us.

67.  Shortly afterwards, we discovered that, at the very outset of the second trial, prosecuting counsel informed the judge that he would not be calling Cheung as a witness for the prosecution and that the Crown would rely on the confessional statements that A3 and A6 had made to the police. Counsel for A3 and A6 then requested the judge to invite prosecuting counsel to call Cheung as a prosecution witness with the attendant disadvantage of not being able to cross-examine him. Counsel for A4 declined to associate himself with this request. Having heard counsel’s submissions, the judge, surprisingly in our view, invited prosecuting counsel to call Cheung as a prosecution witness. The result was that prosecuting counsel called Cheung under protest.

68.  Having learned that the circumstances under which Cheung had given his testimony were different from those as Mr. Rodway supposed them to be, we sent a copy of the transcript of the relevant part of the record to the parties and inquired whether counsel wished to present further argument to us on this point.

69.  We were subsequently informed that Mr. Rodway wished to address us further. Unfortunately, owing both to counsel’s commitments and the indisposition of Silke V.-P. it was not possible to hear further submissions until 16 November.

70.  At the resumed hearing Mr. Rodway submitted that if prosecuting counsel wished to reserve to himself the right to comment adversely on aspects of Cheung’s testimony he should have declined the judge’s firm invitation to call Cheung and have left it either to the judge or to counsel for A3 and A6, who plainly wanted to be in the advantageous position of cross examining Cheung, to call him. He again contended that if prosecuting counsel called Chueng as a Crown witness he was bound to accept his evidence in its entirety and was not entitled to invite the jury to reject any part of it.

71.  We find ourselves unable to accept these submissions. We see no reason for the Crown to be placed at such a disadvantage as a result of prosecuting counsel having acceded to the judge’s invitation – an invitation which was itself brought about as the consequence of a vigorous submission by counsel for A3 and supported by counsel for A6.

72.  The Crown were not bound by Cheung’s testimony. Prosecuting counsel was entitled to invite the jury to reject part of his testimony. As Lord Parker CJ said in R. v. Oliva [1965] 1 WLR 1029 at 1035: “The prosecution do not, of course, put forward every witness as a witness of truth.”

73.  Mr. Rodway cited R. v. Cheng Chung-hoi [1988] 2 HKLR 50 where Silke V-P in delivering the judgment of the court said:

“We are doubtful if in the circumstances here of a witness tendered for cross-examination it would be proper to ask the court to treat him as hostile for the fact that he was tendered suggests to us that the Crown had a statement from his which at the least, did not support their own case. In those circumstances, it is more preferable if the witness is offered as a witness to the defence so that the Crown can make clear in the course of his evidence they do not think him to be a witness of truth”. (Emphasis supplied)

74.  Such a situation is very different in our view from that which existed in the present case where the Crown did not wish to call the witness but did so only at the request of the judge.

75.  We find no force in Mr. Rodway’s submission that the jury would have been confused by what had happened. The mere fact that the Crown had called Cheung as its own witness did not oblige the jury to accept his testimony. They were entitled to accept or reject such parts of his evidence as they thought fit. Moreover, counsel for A4 subjected Cheung to strenuous cross examination and invited the jury to disbelieve his allegations of duress. There was no doubt that Cheung’s credibility was under attack.

76.  Cheung’s testimony at the second trial may briefly be summarized as follows. At A1’s suggestion Cheung, A3, A5 and A7 came to Hong Kong illegally from China in order to assist A1 in running his wholesale fashion company. After their arrival on 2 January they met A1 who took them to his flat where they met A4. During the course of a visit to a restaurant on 5 January they met A6 who told them that he had arrived illegally from China three days earlier, had failed to find employment and was without money and a place to live. A1 invited him to live with the others at his flat. A6 accepted the offer. On 6 January A1 told Cheung and A3, A5, A6 and A7 that his fashion business had closed down and that, because he owned money to a loan shark and had spent “several $10,000” in arranging for them to come to Hong Kong, they would have to find another place at which to live and to look for other employment. When they protested that they had neither money nor identity cards and did not know what to do, A1 told them that he would speak to them again in the evening. When he returned that evening he repeated his tale of lament and told them that since he had spent a great deal of money on them he would “take them to do a robbery”. They replied that they were frightened. A1 then told them that he had three guns and that all they had to do was to go to a premises where they would point guns at people and rob the cashier of money. With that he took out a cloth bag from under a bed and withdrew three guns, one of which he pointed at them while A4 pointed the other two at them.

77.  A4 told them that money had been spent on them, that a loanshark was pressing A1 and him for repayment and that whether they liked it or not they had to carry out a robbery that very night.

78.  Following this, A1 gave Cheung, A5 and A7 a gun each. He then took back the gun that he had handed to A5, saying that two guns were enough for them to point at the victims.

79.  All those present, excluding A4, then set off for the Silver Spring Sauna. When they arrived, A1, who was holding one gun, told Cheung, A3, A5 and A7 to carry out the robbery while he stayed outside with A6. Cheung gained the impression that if they refused to follow A1’s instructions he would do something to harm A6. A7 and Cheung then entered the premises and held up the staff while A5 relieved the cashier of his money. Although A3 was present, Cheung did not notice what part he played in the robbery. They then rejoined A1 and A6, hailed two taxis and returned to A1’s flat where A1 and A4 counted the proceeds of the robbery.

80.  The applicants complained to A1 that they were frightened and asked to be sent back to China. A1 replied that he would have to make the necessary arrangements, but that in the meantime they would have to stay at his flat.

81.  On 8 January, after having had tea at a restaurant, A1 took A3 and A6 to another flat which he said he had rented for them. Cheung, A5 and A7 returned with A4 to A1’s flat.

82.  On 10 January A1 took them all to a restaurant for tea. There he told them that they would be returned to China two days later and that he was waiting for a friend who might take them somewhere to commit a robbery. The friend, however, failed to arrive. They then all returned to A1’s flat and watched television or slept. Later, A1 left the flat. At about 11 p.m. he returned said that his friend was at a cooked food stall. All seven of them then went to the stall at A1’s invitation to have a night snack. A1 told them that his friend would later take them to commit a robbery at a gambling stall. Eventually, the friend, one Chan Chi-fai, arrived. He told them that he worked at the gambling stall and would take them there. He then left. A1 told Cheung and the applicants to accompany Chan Chi-fai to the stall. A1 and A4 were to act as lookouts.

83.  At about 1 p.m. a man named Yuen Kam-chuen joined the group. Some time later A2 arrived and had a talk with A7. A4 took Cheung aside to a laneway near the cooked food stall, handed him a gun and told him that it was to be used in the robbery. At this time Cheung noticed that A4 had another gun tucked under his waistband. At this point in his testimony Cheung added that earlier that evening at the flat the bag containing the guns had been produced and that he and his friends were told that if they refused to commit a second robbery they would be beaten up. Again a gun was pointed at them.

84.  Having received the gun from A4 in the laneway, Cheung returned to the cooked food stall. The bill was paid and the entire group moved off, A1 having told them that Chan Chi-fai would lead them to carry out the robbery at the gambling stall. As they were approaching the stall they were challenged by the police and eventually arrested.

85.  On arrest, A3, in response to a verbal caution administered in respect of the conspiracy to rob the gambling stall, replied, “I just came to follow people to make money. I have nothing to do with it.” Later, at the police station, when asked what he meant by the words “came to follow people to make money”, he said, “I meant to say that I went along with my friends prepared to rob a gambling establishment to make money.”

86.  Shortly after making this statement, which was recorded in writing, A3 was cautioned in respect of the offence of having in his possession with the other arrested persons three pistols and 32 rounds of ammunition. In response he made a long statement that was recorded in writing and in which he admitted that he together with Ah Hung, Ah Tak and Ah Fei had arrived illegally by boat in Hong Kong with the intention of making money by committing robbery. On arrival, they contacted a friend, one Ah Pei, who put them up in a flat in Kowloon, took care of their daily meals and necessities and told them that he would let them know when he had found a suitable place at which to carry out a robbery. He then went on to relate the events of the day leading up to his arrest. He said that at 11 a.m. on 10 January Ah Pei took him and his companions to a restaurant where they met another friend nicknamed “Wu So Lo”. Ah Pei told them that he had made an arrangement with a friend to meet at a cooked food stall at 12.30 a.m. and that “tonight there may be work to do.” In the meantime they were to return to the flat and await instructions. At around 11 p.m. Ah Pei took Ah Tak, Ah Fei, Ah Hung and A3 to a cooked food stall. At about 12.30 a.m. Wu So Lo arrived and told them that several others would arrive to commit a robbery at a gambling establishment. Soon afterwards three men named Ah Keung, Ko Lo and So Ha joined them. A3 and the others then proceeded

87.  to work out the plan for carrying out the job of committing robbery and making money.” After this, Wu So Lo, Ah Fei and Ah Tak said that they would go and get the guns “to start work”. Later, they returned, the bill was paid and the party set off to carry out the robbery. Shortly afterwards, the police swooped and A3 was arrested.

88.  Having made this statement, A3 was then cautioned concerning the Silver Spring Sauna robbery. He admitted that several nights after he and Ah Fei, Ah Hung and Ah Tak had sneaked into Hong Kong, Ah Pei came to their “hide-out” and told them that he had brought three Chinese made pistols to Hong Kong “to make a living” and that he had found the ideal place at which to carry out a robbery. He then took them to the Silver Spring Sauna.

89.  Ah Hung, Ah Tak and Ah Fei were each armed with a pistol. On arrival, Ah Pei told them to carry out the robbery, while he remained outside and acted as a lookout. A3 and his three armed companions then entered the sauna establishment where they announced “robbery” and, pointed the pistols at the staff while A5 took the money from the cashier’s till. They then escaped, hailed a taxi and returned to their “hide-out”. On the following day Ah Pei gave each of the participants $1000 of the $6000 odd proceeds of the robbery.

90.  A3 then went on to admit that in Canton prior to their illegal entry into Hong Kong Ah Fei had given him the three pistols in a travelling bag and had asked him to take care of them temporarily. After boarding the boat on which they were to be taken to Hong Kong, A3 returned the bag containing the guns to Ah Fei. Ah Fei then opened the bag, took out the pistols and, handed one to Ah Hung.

91.  Mr. Rodway, who appeared on behalf of A3 and A6 in this court, submitted that A3’s convictions are unsafe and unsatisfactory for the following reasons. First, the judge, although required to direct the jury that it was dangerous to convict the applicants on the testimony of Cheung without corroborative evidence, failed to further direct them that where that testimony assisted the applicants no corroboration was required. By this we understand Mr. Rodway to mean that the judge should have directed the jury that the warning that it was dangerous to convict on Cheung’s evidence in the absence of corroboration did not apply to that part of it which was in favour of the applicants.

92.  We do not accept that any such added direction was necessary. In this regard the judge was required to do no more than alert the jury to the danger of convicting on the basis of Cheung’s testimony unless they found that it was corroborated by independent evidence. The judge’s warning was that the danger lay in convicting the applicants, not in acquitting them. No reasonable jury could possibly have thought that it was dangerous to use any of Cheung’s evidence that was in favour of a particular accused unless it was corroborated.

93.  Secondly, Mr. Rodway complains that the judge failed to remind the jury of the following aspects of Cheung’s testimony that were favourable to A3:

(a) that A3 had merely “stood there” during the robbery.

94.  That, however, is not a complete summary of Cheung’s testimony. In fact Cheung had gone on to say, “I did not quite notice what he had done.” Indeed, it is apparent from A3’s confession to the police that he “took some of the money and put it into a yellow plastic bag which we readily brought along.”

(b) That the positive ferrozine test carried out on A4’s hands supported the evidence of A3 and Cheung that A4 had held a gun to them prior to the conspiracy being hatched.

95.  But Cheung had testified that A4 had handed him a pistol in a laneway shortly before the group set out to commit a robbery at the gambling stall and that in the laneway he had also seen another pistol under A4’s waistband. That being so, the fact that A4 had tested positive to a ferrozine test lent no weight to Cheung’s testimony that earlier that night A4 had held a pistol at him and the others.

(c) that Cheung’s testimony that A1 had a contact in China named Chung Chai lent credence to A3’s belief that his family would be endangered if he did not cooperate.

96.  Since A3 did not give evidence there was no evidence as to what he believed. There was merely evidence from Cheung that Chung Chai, who had arranged for A3 and his companions to take a boat from China, was a friend of A1 and knew where Cheung’s family lived. Cheung testified, however, that he did not know if Chung Chai knew where A3’s family lived. He added that when A1 threatened them with the pistol he told them that he knew the addresses of their families in China. Cheung said that they all believed what A1 had said. How Cheung was in a position to know what A3 believed was never explained.

97.  However that may be, the judge reminded the jury that Cheung had testified that A1 and A4 had uttered threats to the well being of all the mainlanders, including A3 and A6, and had also made threats concerning their families. He went on to tell the jury that he was of the view that it would not be unreasonable to assume that “much the same thing was going on in the minds of [A3] and [A6] as was going on in the mind of Cheung Man-fai.” Since Cheung had testified that he believed that A1 knew the addresses of their respective families in China and would do something harmful to them it follows that the judge was inviting the jury to come to the conclusion that A3 and A6 would have shared that fear. We do not think that any reference to Chung Chai would have taken the matter any further.

98.  Third, Mr. Rodway submitted that the judge failed adequately to direct the jury that, if they believed Cheung’s evidence that he had been assaulted by the police and that his cautioned statement had been fabricated, they could take that evidence into account when considering the credibility of the arresting officers as a team. But the officer who took the statements from A3 was not involved in the taking of any statement from Cheung, nor did Cheung assert that that officer had been guilty of any impropriety. We think that the judge was correct to tell the jury not to speculate or to assume from Cheung’s assertions as to the treatment he had received that the other accused had been similarly treated.

99.  Fourth, it was contended that, when directing the jury concerning the defence of duress, the judge erred in failing to tell them that although Cheung’s evidence that he had believed from what A1 had said immediately prior to the Silver Spring Sauna robbery that A1 was holding A6 hostage, was not evidence of duress in respect of A3 – since A6 was not a member of A3’s family – they could take it into account when deciding whether A3 had been a willing party to the robbery. There is not the slightest merit in this submission. The judge was perfectly correct in directing the jury that a threat which is not directed at an accused or his family is not evidence of duress in respect of that accused. For the judge to then turn around and say that it was evidence that they would take into account in deciding whether that accused had been a willing party to the robbery would have been to negate his earlier correct direction.

100.  Fifth, Mr. Rodway submitted that in directing the jury regarding A3’s cautioned statements the judge failed to direct them that the passage “I just came to follow people to make money. I have nothing to do with it” was equivocal in that it was open to the interpretation that he had come to follow people to make money by means of some lawful activity.

101.  The judge said this to the jury:

“What does it mean? On the one hand it would seem to be a denial – ‘I have nothing to do with it. On the other hand, I just came to follow people to make money’ would seem to be open to the logical inference that he was there to participate in whatever the group was doing at that time to make money.”

102.  As we have already mentioned, A3, when asked by the officer what he had meant by the words referred to, replied:

“I meant to say that I went along with my friends, prepared to rob a gambling establishment to make money.”

103.  The judge’s observation was, if anything, unduly favourable to the applicant.

104.  Lastly, complaint is made that the following passage in the summing up tended to indicate that the jury were bound to accept any opinion that the judge appeared to express:

“It will be part of our function to decide whether or not that threats were made to the accused. If they were made, whether they were still operating on the mind of each of [A3] and [A6] at the time they were at the Silver Spring Sauna so as to overbear their will. You must view them separately because their circumstances were separate.” (Emphasis supplied)

105.  Having listened to the tape recording of the judge’s summing up, we have no doubt that the word “our” in the transcript is a corruption of “your”. The judge clearly used the word “your”. This ground does not, therefore, need consideration.

106.  With regard to A6, Mr. Rodway advance one ground of appeal, namely, that the convictions were unsafe and unsatisfactory. He submitted, as in the case of A3, that the judge had erred in failing to direct the jury that “no corroboration is necessary” of Cheung’s testimony whenever it was of assistance to the defence. We had already dealt with and rejected that argument in respect of A3’s application.

107.  His next submission in support of this ground was that the judge filed to remind the jury of the following matters:

(a) that A6 was held hostage at gunpoint by A1 outside the Silver Spring Sauna at the time of the robbery at those premises.

108.  This is an exaggeration of Cheung’s testimony, which was, “[A1] was holding one gun ….. [A1] told [A6] to stay with him, meaning that if we did not follow his instructions he would do something harmful to [A6].” The latter part of this evidence was pure assumption on the part of Cheung. However, the judge did remind the jury in these words:

“You will recall that [A6] …. was upstairs with [A1], and [A1] had a gun, and [A6] did not.”

109.  Later the judge told the jury:

“It is the defence of [A6] that there was duress, as with [A3]. He says that he was acting out of fear, that his will have been overborne, that any sober man of reasonable firmness would have been overborne.”

110.  This was an unduly favourable direction to the jury in that it conveys the impression that A6 had given evidence as to his state of mind. A6 did not give evidence. The only evidence concerning duress came from Cheung who could only testify as to what had happened and to his own state of mind. He was not present with A1 and A6 outside the Silver Spring Sauna, but was inside physically carrying out the robbery.

111.  The only evidence of what A6 had said was what was contained in his cautioned statements to the police. Nowhere in these does A6 say that he was held hostage at gun point by A1 or that he was subject at any time to duress. On the contrary, his statements consist of confessions to the offence on which he ultimately stood trial.

112.  In the first statement, which related to the conspiracy to rob, he admitted that he had made arrangements in China with Ah Fei and Ah Tak to find guns and to sneak into Hong Kong to commit robbery, and that on reaching Hong Kong on 29 December he was met by Ah Fei who took him to his flat. Later, they were joined by four other men from China named Ping Wah, Ah Tak, Hung Chai and another Ah Fei. Ah Tak had brought three pistols with him. On 10 January Ah Tak and Hung Chai, who had been staying with Hung Chai’s elder sister, came to the flat and invited A6, Ping Wah, Ah Fei and Ah Chuen to a restaurant. On arrival at the restaurant Ah Tak told them that there would be work to do that night. A6 understood this to mean that a robber was afoot. At around 7 p.m. Ah Tak called A6 and told him to bring Ping Wah, Ah Fei and Ah Chuen to a cooked food stall meet him. On arrival at the cooked food stall they met a Hong Kong Chinese who told them that they were going to commit a robbery at a gambling stall that night. Ah Chuen and Ah Fei then left the stall and returned later saying that they had a gun. The group, including three Hong Kong Chinese whom A6 did not know, then set off to carry out the robbery. However, they were arrested by the police before they could execute it.

113.  On being cautioned as to the offence of being in possession of firearms and ammunition, A6 replied, “I just said now that the three guns were used by Ah Tak, Ah Chuen and Ah Fei, I only went to make money. This matter has nothing to do with me.”

114.  Later, having been cautioned in respect of the Silver Spring Sauna robbery, A6 admitted that he had acted as a lookout and had not entered the premises. He said that Ah Tak had told him to stand outside and act as a lookout while Ah Tak, Hung Chai, Ping Wah and Ah Fei carried out the robbery inside. Ah Tak, Hung Chai and Ah Fei carried guns and Ping Wah was to be responsible for taking the money. After the robbery they hailed a taxi and returned to the flat where the proceeds of the robbery were counted. As received $1000 as his share.

115.  There is therefore no substance in this head of complaint.

(b) that the positive ferrozine test carried out on A2 “ supported the appellant and Cheung Man Fai’s evidence that [A2] had held a gun to them prior to the conspiracy.”

116.  It seems to us, however, that, on a fair reading of the evidence at page 1810 of the transcript, that it was A4, not A2, whom Cheung said had pointed a gun at him and the other mainlanders at A1’s flat shortly before the meeting held at the cooked food stall. The evidence that the ferrozine test carried out on A2 was positive has no relevance to the point sought to be made.

(c) that if the jury believed Cheung’s testimony that he was assaulted by the police they could take that evidence into account when considering the credibility of the police officers as a team.

117.  Again, this is a matter which we dealt with in connection with A3’s grounds.

(d) that the jury might find that the contents of the statements given by A6 to the police were consistent with the defence that he had no option but to do so as he was told.

118.  It is not clear to us what words or passage could be relied on for this purpose. We are unable to find anything in the statements which is fairly susceptible of such an interpretation. The statements are clear and unambiguous confessions of participation in an armed robbery and a conspiracy to carry out another robbery. There is nothing in them that conveys any indication of reluctance to commit these offence let alone any suggestion that duress had been brought to bear on the applicant.

119.  The last ground was the same as that made on behalf of A3 concerning the corrupt transcription of the word “our” for “your” from the judge’s summing up.

120.  For the reasons we have given we are satisfied that there is no substance in the grounds of any of the applicants. Their applications for leave to appeal against conviction are therefore refused.

121.  We now turn to the application for leave to appeal against sentence. A1 complains that his sentence on the conspiracy to rob count is excessive. He asserts that the planning for the proposed robbery at the gambling stall had been conducted by his co-accused and that he did not become involved in the conspiracy until what might be termed the eleventh hour.

122.  Even if the evidence had supported that assertion we do not consider that a reduction in sentence was called for on that account. The 1^st applicant willingly joined a conspiracy and was about to assist his co-accused in carrying out its object when the police intervened. There is no merit in his application.

123.  Mr. Rodway submits on behalf of A3, A6 and A7 that the judge failed to make a proper differentiation between the role played by the local residents, including A1, and those played by the applicants from the mainland. He contends that the mainlanders had been subjected to some degree of pressure by the local members of the gang to commit the offences of which they were convicted. Mr. Wright for A5 adopts Mr. Rodway’s submission.

124.  It is plain, however, that the juries, by their verdicts, rejected the defence of duress on the counts on which they returned verdicts of guilty. Moreover, it emerges very clearly from the cautioned statements of A3 and A6 that the plan to commit robber was hatched in China and that they came to Hong Kong for the express purpose of putting their plan into action. These statement stand in stark contrast to the allegations of duress and, indeed, with any suggestion of pressure falling short of duress.

125.  We can find no justification for disturbing the judge’s assessment that the applicants should be treated on the basis of equal culpability in the crimes that they committed. In this regard we bear in mind that he had the undoubted advantage of having heard the evidence in both trials.

126.  The sentence are neither manifestly excessive nor wrong in principle. The applications are therefore refused.