THE QUEEN v. MA SAI-CHUEN (D1) AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.:

1. On 22nd May of this year the second applicant, CHUNG Kwong- sun, pleaded guilty to taking part in a robbery which had occurred on 15th October 1983. The circumstances were as follows.

2. At about 10.30 a.m. on the day in question a phone call, purporting to come from a representative of Po Da Trading Company, was made to an employee of Wider Electrical and Watch Company expressing a wish to buy 12,500 electronic watch modules. A price of $6.30 per module was agreed. The goods were to be delivered forthwith to an address at 16 Jordan Road, Kowloon.

3. At about 1.45 p.m. that afternoon two employee of Wider arrived at the nominated address with the goods ordered but the occupiers did not know anything about the matter. While the employees were standing in the corridor in a state of some perplexity two men armed with knives appeared; warned them to leave the goods where they were; forced them up the staircase to the landing; tied and gagged them and made off with the goods.

4. CHUNG Kwong-sun was subsequently arrested following which he made a statement under caution admitting complicity in that robbery. He pleaded guilty on arraignment and, after hearing his antecedents, Garcia, J. sentenced him to 8 years imprisonment. He seeks the leave of this Court to appeal against that sentence.

5. The first applicant, MA Sai-chuen, pleaded not guilty to complicity either in the robbery in relation to which CHUNG Kwong-sun was involved or in an earlier robbery which had taken place on 26th September 1983. His trial, which involved other accused, took some 13 days. It concluded on 11th June of this year when the jury found him guilty of complicity in both robberies. On the following day the learned judge sentenced him to 10 years imprisonment on each count; such sentences to run concurrently. He seeks the leave of this Court to appeal both against the convictions and sentences. It will be convenient if we deal with his application for leave to appeal against the convictions first.

6. The Crown case in relation to the robbery of 26th September 1983 was that the 1st applicant had ordered from Nga Tat Electronics Company 10,000 watch movements to be delivered to Luen Yee Building in Des Voeux Road, Central, and had organised a similar criminal operation to that which the Crown alleged he had subsequently arranged for 15th October. The nature of that operation I have already recounted. Six written statements, said to have been made by this applicant, were adduced in evidence, one of them without objection, to demonstrate that he had effectively admitted involvement in both robberies. He gave evidence disputing the voluntary nature of five of the statements and denying guilt.

7. Ma's original "home-made" grounds of appeal were dated 28th June 1984 but "substituted grounds", settled by counsel, were filed on 30th August 1984 together with a Notice of Motion seeking an adjournment of the applications so that a transcript of the voir dire proceedings might be obtained. This morning an application was made to amend the Notice of Motion to allow the applicant to obtain a transcript of the evidence given at trial as well. The basis of this application was that there was no evidence available to the Crown showing that Ma was involved in the first of the robberies. However, this was the subject matter of part of his alleged statement dated 21st November 1983. Further, a Mr. CHIU Yat-kong gave evidence at the trial that this applicant had sold him 10,000 watch modules on the afternoon of 26th September 1983 for $53,000. Both applications were late and both of them we refused; not no the grounds of lateness but because the provision of transcripts either of the voir dire or of the trial would in no way avail this applicant. The learned judge ruled on the evidence after the voir dire hearing, as was his duty, and expressed himself satisfied beyond all doubt that the applicant had made the five statements impugned voluntarily.

8. This really covers the first substantive ground of appeal. Mr. van Buuren, who appeared for Ma, argued rather faintly that the judge had failed to emphasize that there was more evidence available to the prosecution on the one count than the other. I do not think he can seriously have expected us to allow the application on that footing.

9. The second ground reads:

"That the direction of the learned trial judge on the law relating to the culpability of counsellors in relation to the 2 charges of robbery the 1st Appellant faced was inadequate in that he failed to direct the jury that they should consider the 'essential elements' of counselling in relation to the 2 charges of robbery separately."

As was pointed out in the course of argument the learned judge did just this in some of the last words he addressed to the jury.

10. The third ground of appeal reads:

"The learned trial judge erred in his direction to the jury when following his direction that it was dangerous to accept the evidence of the 3rd accused without corroboration he referred to the evidence of the 1st Appellant, such a direction being likely to indicate to the jury that they could look to the evidence of the 1st Appellant to corroborate the evidence of the 3rd accused."

This is a difficult ground to follow but is probably answered when, in the course of the summing-up, the learned judge warned the jury that all evidence given by the 3rd accused at the trial was that of an accomplice and that there was no evidence amounting to corroboration except the confessions contained in the statements which were in evidence and which fell to be considered by the jury on the hsis that they should attach such weight to each of them as they thought fit in all the circumstances.

11. The fourth ground of appeal was that:

"The learned trial judge erred in directing the jury on the basis that common sense indicated that the 1st Appellant was not to be believed."

It is trite law that a judge is entitled to express his opinion on the evidence providing he has made it clear to the jury that it is for them to make the decisions of fact and that this is their province and not his. By the time he referred to "common sense" he had twice given the jury the appropriate direction. There is nothing in this ground of appeal.

12. The fifth ground of appeal was that:

In fact the learned judge did so direct the jury in terms.

This is substantially the same point as that raised in grounds four and five (d); the burden of all these complaints being that the learned judge indicated to the jury that in his opinion the evidence of this applicant was not worthy of credit. The answer already given, that the judge had made clear that this was the jury's province and not his, answers the point.

13. There is a concluding suggestion that the confession admitted in evidence without challenge was likely to confuse the jury as to how they were to deal with this applicant's confessions as a whole. In this regard the learned judge said:

"Now in considering this element you must have regard to the evidence which I have earlier recounted (i.e. dealing with handling) and also the evidence of the 1st accused himself as to the circumstances under which he came to undertake to realise the goods for the two persons he named."

14. It will be apparent that we find no substance in any of the grounds urged upon us. Ma's application for leave to appeal against conviction is refused.

15. As to Ma's appeal against sentence, that was 10 years on each count running concurrently, the applicant's original ground stands; namely that the sentences were too severe. The learned judge found that this applicant, 24 years old, single, with a clean record, had organised two substantial robberies the second of which had involved the use of knives and the tying up of the victims. It was urged on his behalf that he committed these crimes in order to escape from the embarrassment of commercial debts. This really can avail him nothing. All in all we can see no basis for interfering with the sentences imposed and MA Sai-chuen's application for leave to appeal against sentence is also refused.

16. As to the application of CHUNG Kwong-sun to appeal against sentence we take into account what he says in his own grounds of appeal:

It was common ground that this 22 years old, single, applicant, played a subordinate role albeit a role involving the use of a knife to threaten a victim. Further, although he pleaded guilty the evidence against him was very strong so that the plea was not in itself the strongest indication of remorse. In June 1983 he had been convicted of assisting in the management of a vice establishment and of assault occasioning actual bodily harm but as these offences were visited only with fines they cannot have been of a very grave nature. The present crime came into a much more serious category but, as his grounds of appeal remind us, he was frank with the police after arrest and cooperative. After the sentence of 8 years had been imposed he gave evidence for the Crown. Eight years would normally be appropriate for this offence; certainly following a plea of "not guilty". However, as the learned judge subsequently remarked, it does and could not afford any recognition of his conduct after sentence had been imposed. What is more it is disproportionate to the sentence imposed on the first applicant. We feel able to allow his application for leave to appeal against sentence, to treat this hearing as that of the appeal and to substitute a sentence of 5 years for that of 8.

17. Before parting with these applications we would refer to two authorities to which Mr. Westbrooke, who appeared for Chung, has referred us. Both are reported in the Criminal Appeal Reports for 1982 Volume 74. Giving judgment in the first, decided as long ago as 1st July 1976, (The Queen v. Coffey p. 168 at p. 171) Lawton, L.J. stated that:

"- there may be cases in which it is desirable that one accused should be sentenced before another accused, but in general it is the experience of this Court that it is better for the judge to postpone the sentencing of those who have pleaded guilty until he has heard all the evidence relating to the count of the indictment out of which the plea of guilty arises. If he does not wait until he has heard all the evidence he may find when he has heard it that he has sentenced on the wrong basis a man who has pleaded guilty."

The effect of the second authority, decided by Lord Lane, C.J. and Boreham and Ewbank, JJ. on 1st December 1980 (R. v. Weekes & Others p. 161) is adequately set out in the headnote:

"Where on a trial of two or more defendants, one of them pleads guilty and the other or others not guilty, and the one who pleads guilty proposes to give evidence either for his co-defendants or for the Crown, the better sentencing policy is not to sentence that defendant before he gives evidence; but to sentence all the defendants at the same time and that should be done by the same Court whenever that is possible."

We adopt the reasoning of these cases and commend the policy they indicate.