R. v. LO WING MING and Others

IN THE COURT OF APPEAL

1995, No.682
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The Applicants faced one charge of robbery which was particularized as follows: that they on 17th January 1995, at the Yan Yuen Kee Store, Shop No.13, ground floor, On Kwan House, Shun On Estate, robbed Yan Yuen-ming of cash $900, 12 bottles of brandy, 400 packets of cigarettes and robbed Cheng Foon-nui of $1,100 cash. The applicants who pleaded not guilty in the District Court were tried before Judge Jackson and found guilty. Each was sentenced to imprisonment for six years. Each now seeks leave to appeal against both conviction and sentence.

2. The victims were a husband and wife who were the proprietors of a small store in the Shun On Estate. The husband was aged 75 and the wife was in her late sixties. At about 7 a.m. on the morning of 17th January the wife had opened the small door on the front metal door and stepped outside preparatory to opening the shop. One of the robbers was behind her holding a 4" paper cutter and when she turned round he pointed it at her chest and told her not to move and that he wanted money. She was pushed into her shop and her mouth was covered with adhesive tape. At this stage two other robbers ran into the shop and shut the small door. $1,100 was taken from her pocket. One of the robbers continued to menace her with the paper cutter and she was understandably very frightened. She could hear items being taken from the stock of the shop which were, it now is clear, being placed into a red, blue and white nylon bag. The 75 year old husband hearing noise came to investigate. He was menaced with a jungle knife about 2' in length. Money was demanded from him and he handed over $900. The culprits shortly after fled from the premises but before so doing told the husband that he was not to chase them or he would be killed.

3. The other persons involved in the incident was a boy aged 11 who had come to the shop to purchase a snack. He saw the culprits leaving with a red, blue and white nylon bag and he was told to go away but he continued to observe them and saw them enter a goods vehicle and leave the estate.

4. Some 11 days later on the 28th January, the 1st applicant was seen by a police officer in a lift with goods which, it was later found, were the proceeds of the robbery. He was apprehended. The 2nd and 3rd applicants were arrested later on that day. Each of the applicants made a cautioned statement admitting the offence but at trial each alleged that they had been subjected to threats and violence and that the statements were untrue and involuntary. An identification was held but none of the applicants were identified.

5. Seven police officers gave evidence in relation to the voir dire proceedings. The 1st applicant gave no evidence in the voir dire but called a witness had said that at 2 p.m. on 28th January 1995 he had seen the applicant pass his front door on the way to his home and he was then accompanied by a police officer. This evidence seems to have been given in an attempt to establish that, all along, this applicant was a police informer.

6. The 2nd applicant also gave no evidence in the voir dire but he called a police officer who had assisted the duty officer at Sau Mau Ping Police Station on the day of his arrest and that officer told of the procedures which were then followed. That officer also gave evidence which related to the 3rd applicant saying that an asthma inhaler was found among his property. The 2nd applicant also called a witness who said that he had seen the 2nd applicant with the Sau Mau Ping Task Force officers on 21st and on 28th January.

7. The 3rd applicant gave evidence saying that he had been subjected to ill-treatment and called a doctor from Sau Mau Ping who told of the results of an examination which he had made of the applicant.

8. The trial judge, although not required so to do, gave reasons for admitting the cautioned statements. He said that the evidence of the police officers who had arrested and interviewed the defendants was most convincing. He continued:

"Each of those officers were, again to my mind, impressive and truthful witnesses who were generally astonished at the allegations made against them. Each and every one of which allegations were robustly denied.

He referred also to the evidence of PW10, a police officer who had given evidence about a red police vehicle to which the 1st applicant made reference, saying it was of little assistance as it did not in any conclusive way establish where the vehicle was at any particular time.

As to the evidence called by the 1st applicant, the judge said as follows:

"The evidence of his first witness, DW1, that he had seen the 1st defendant in the company of a single uniformed police officer at about 2.00 p.m. on 28 January near his home, was frankly of no assistance to me or to the 1st defendant whatsoever. Apart from anything else, that evidence was contradictory, highly improbable and could not be said, in any way, to lend support in any relevant detail to the 1st defendant's allegations as put to the police officers.

The police officer, who the 1st defendant then called to give evidence, DW2, told me nothing of consequence which might lend support to the 1st defendant's allegations."

9. The judge went on to then deal with the evidence called by the 2nd defendant saying:

"He did however, call LAU Lap-chi, that is DW3, who is presently attending a Drug Addiction Treatment Centre, following conviction for an offence of possession of dangerous drugs. He told me, inter alia, that he was present when the 2nd defendant was arrested for this offence and that at that time the 2nd defendant made no verbal admission to it. He said that both he and the 2nd defendant had earlier been approached by members of the Sau Mau Ping Task Force to try and find out information concerning the robbery of the store.

The judge said: "I simply did not believe this evidence ..... because the evidence which he gave, as tested in cross-examination, and the manner in which he gave that evidence was quite plainly contrived and in my view, false."

10. He then dealt with the evidence of the 3rd defendant who had elected to give evidence on the issue of admissibility saying:

"I can say little more beyond that I did not believe his evidence, which was to my mind, patently rehearsed and as tested in cross-examination, untrue."

He specifically rejected the 3rd applicant's evidence that he had been threatened with denial deprival of his asthma inhaler. As to the evidence of the doctor he said:

I was not assisted by the evidence of Doctor Wong, DW5, in his description of the colour of the bruises which he says he found on the 3rd defendant's body, and assuming that they were indeed blue, as he told me, as opposed to brown as his report states, I positively reject, based on all of the evidence before me, that if they resulted from blows inflicted 2 days or so previously, that such blows were inflicted by the police."

11. In the outcome the judge rejected the evidence given and called by the applicants and admitted the statements.

12. On the issue the 1st applicant gave evidence and called two alibi witnesses, his girlfriend and his sister-in-law. The 2nd applicant gave evidence and called one alibi witness. The 3rd applicant did not give evidence but he also called an alibi witness. The trial judge dealt with the evidence as follows:

"The defence case on the general issue was, in essence, that so far as the 1st defendant was concerned, he was not arrested at the time and in the place as told to me by the police, that he was framed, concerning the exhibits of brandy and cigarettes, and he made no verbal admissions upon his arrest and that the admissions attributed to him in exhibit P7 were fabricated by the police. In addition he was not a participant in the robbery but was, at the time of the robbery, asleep in bed with his girlfriend."

The trial judge then said:

"On the evidence before me I did not believe, either the 1st defendant or DW7 (his girlfriend). They were shown in cross-examination not to be witnesses of truth and I reject their evidence, as I reject for the same reasons, the evidence of DW8, that is the 1st defendant's sister-in-law."

13. As to the 2nd defendant, the judge said:

"His evidence and the manner in which he gave that evidence, whilst under cross-examination, was plainly dishonest and I reject it. His alibi witness, DW10, LAU Lap-ho, had to be seen to be disbelieved. His evidence made no sense whatsoever and I was not influenced in anyway by the fact that he is presently in a Drug Addiction Treatment Centre .........."

14. As to the 3rd applicant, the judge said that he elected not to give evidence but he called his girlfriend. She gave alibi evidence about which the judge stated:

"Having observed her give her evidence I was left in no doubt, following her cross-examination, that it was contrived and untrue and I reject it."

15. Before coming to his conclusion the trial judge found as a fact that while the 2nd applicant may at some time have been a police informer that had no bearing on the offence for which he was being tried. The trial judge was satisfied as to the guilt of each of the applicants and he convicted them.

16. The 1st applicant in his grounds of appeal has again made mention of the red car but this does not seem to have been a matter of any real significance in the prosecution. He suggests that the trial judge was partial and gave an unfair adjudication. Having read the careful reasons given by the judge and his examination of all of the aspects of the evidence before him, we are satisfied that there is nothing in this suggestion of this partiality.

17. The 2nd applicant complains that he was convicted against the basis of his statement which he says was obtained by intimidation. He also again raises the suggestion that he was in fact a police informer. The trial judge satisfactorily dealt with both of those matters and they cannot, we are satisfied now be called into question before this court.

18. The 3rd applicant complains that he was convicted despite the fact that no identification was made of him by the victims. The trial judge had that in mind when coming to his conclusion and indeed stated that he was in no way surprised that the elderly victims were unable to make any identification.

19. Nothing of any moment has been advanced in any of the grounds urged before us. The convictions were neither unsafe nor unsatisfactory and the applications for leave to appeal must, therefore, be refused.

20. Each of the applicants submits that his sentence was too severe. The 1st applicant in addition points out that according to the evidence his only participation was as the driver. The 3rd applicant asks us to take into account that this is his first offence of robbery and that he is the breadwinner of his family. The trial judge, before sentence, called for training centre and detention centre reports and again carefully reviewed all of the reports. He makes specific mention of the fact that the evidence indicated that the 1st applicant was the driver. His sentences were in accord with the sentences indicated as appropriate for an offence of this kind by the guidelines in Mo Kwong-sang. Nothing that has been said which suggests that the sentences was either too severe or wrong in principle and the applications for leave to appeal against sentence must also be refused.