R. v. CHAN KING HEI and Others

Criminal Appeal
1994 No. 358

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H E A D N O T E

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Editor's submission in Archbold 1995 Edn at para.15.371 that a judge should give reasons for his ruling on a voir dire disapproved.

Residual discretion to exclude evidence considered - such discretion will be rarely exercised.

Approach to 1992 "Judge's Rules". If relevant to admissibility or weight, reference may be made to them before the jury.

Curing an unlawful arrest - R v Kulyncz [1971]1 QB 367 approved.

Bill of Rights Art.5(2) - if facts are in dispute, too late to raise point on appeal.

Citing a catalogue of unreported cases on sentence which are neither guideline cases nor decide matters of principle are unhelpful.

IN THE COURT OF APPEAL

1994, No. 358
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. We have adjourned the application of Pang Yun-sum (D1 at trial) for one month to enable him to instruct solicitors and counsel. We turn to the other applicants.

2. Each of these applicants, whom we will describe as they were described at trial, Yin Kin-cho as D2, Chan King-hei as D3, Yuen Yan-chi as D4 and Yeung Yiu-sang as D7 is, applies for leave to appeal against both his conviction and his sentence.

THE CONVICTIONS

3. They were each convicted, with others, on 7th July 1994 after a lengthy trial before Deputy Judge Burrell and a jury of conspiracy to rob. Also, of these applicants, D4 and D7 were convicted of having with them firearms and ammunition with intent to commit an arrestable offence and D2, D3 and D4 of assisting unauthorised entrants to remain in Hong Kong.

THE FACTS

4. The main offences were of the most serious kind. A plan was made to rob a factory in Kowloon Bay of electric goods thought to be worth $6m. The watchmen there were to be tied up, the factory broken open, the goods removed into lorries and taken to a waiting buyer. A gun and a grenade were to be used if necessary. To effect this plan, five Mainland youths were recruited by D1 and D4. Money was handed over for the Mainland youths to obtain guns and so far as they were concerned, after the robbery, they were to be taken by car, driven by D3, to a waiting fishing vessel to return them immediately to the Mainland.

5. In the course of preparation for the offence, the factory was visited and the surroundings observed. The place where the goods were to be disposed of was also visited to check the route and its surroundings. Those taking part were promised large sums of money, ranging from $100,000 to $300,000 and in one case, $800,000 though this may well be exaggerated.

6. The five Mainlanders were recruited and were smuggled into Hong Kong on 18th June. A room at the East Motel was booked as a place for the conspirators to meet and hide. When the Mainlanders arrived, they brought with them the gun and - it would seem - the grenade. The gun and the grenade were hidden by D1 in the ceiling near that room. Lorries, the car, the gun, the grenade, gloves and crowbars had all been obtained in preparation. The particular task of the Mainlanders was to tie up the watchmen and then to assist in the robbery. The role of D3 was as driver and the others were to play various parts.

7. Early in the morning of 19th June 1993 the police pounced and arrested most of those involved. When they did so, the police were aware that the gang was likely to have arms. It is not surprising in those circumstances that the arrests were made unceremoniously, but on the information before us those arrests were made no more firmly than was called for in the circumstances. Complaints that the arrest of D3 was made unlawfully because he was not told, it was said, the reason for his arrest at the time, and was detained too forcefully were advanced at trial.

8. The evidence consisted chiefly of the evidence of a co-conspirator, Leung Wai-sang - one of those recruited from the Mainland and who had personally brought the gun into Hong Kong - and of the confession statements made by each applicant after he was arrested. At the trial, of the applicants now before us, only D2 chose to give evidence.

D3'S APPLICATION ON CONVICTION

9. We turn first to D3's case in his application for leave to appeal against conviction as he is represented by counsel, Mr Tolliday-Wright.

Rulings and Giving Reasons

10. He first sought leave to argue that the judge ought to have made rulings on the voir dire: (a) as to whether the arrest of D3 had been lawful and (b) whether there had been any breach of "the rules and directions for the questioning of suspects and taking of statements", ("the 1992 Rules") by the officers taking the statements and questioning the applicant. These submissions were associated with a third submission. That the judge ought to have given full reasons for his decision to admit the confession statements. Counsel recognised the difficulties he faced. Authority and recognised practice are against him. It was said as long ago as 1984 by this Court in R v Lam Yip-ying [1984] HKLR 419 that the giving of reasons was unnecessary. At 424 Roberts CJ said:

"As this court has previously said, it is not necessary for a trial judge to give reasons for his finding as to whether a statement is voluntary or not, nor for his refusal to exercise his residual discretion."

The practice in Hong Kong is the same as in England. But Mr Tolliday-Wright finds some support for his contention in Archbold 1995 Edn. at para. 15-371. That paragraph reads:

"There is no requirement for the judge to give reasons in deciding to admit confession evidence on the voir dire or to admit other evidence challenged under section 78. The absence of a detailed ruling will not give rise to criticism: see R. v. Moss, 91 Cr.App.R. 371, 375, C.A. It is submitted, however, that it would greatly assist defence counsel, in considering an appeal and in formulating grounds of appeal, and also the Court of Appeal, if an appeal proceeds, if the judge were to give a short reasoned judgment. The judgment should include the finding of facts, if any, and a summary of the arguments of both counsel, should state which matters have been taken into account in reaching the decision, and give the reasons for not excluding the evidence."

11. Any opinion of the editors of this prestigious work demands careful consideration. But we do not accept the reasoning is applicable in Hong Kong. In England, the Police and Criminal Evidence Act may be relevant but we have no equivalent here.

12. We repeat that it is not necessary for a judge to give reasons for his decision on a voir dire. If he chooses not to give reasons he will not be criticised. Indeed, it is often the best course. It is a consequence of the different roles of judge and jury. It demonstrates that admissibility is a matter for the judge. Weight and credibility are for the jury whatever view the judge may have formed of the evidence given by the witnesses on the voir dire - which will often include the accused himself.

13. Counsel also submitted that the judge ought to have ruled on the lawfulness of D3's arrest and the alleged breaches of the 1992 Rules in the course of the trial. With the greatest respect, this is a bad point. There was no relevant issue on these matters upon which a ruling was required. Such a ruling in the course of the trial would have required the judge to assess the weight and credibility of evidence which was the jury's exclusive province.

14. It remains open to counsel to advance before the jury any matters relevant to weight and credibility. The lawfulness of the arrest here was of doubtful relevance even if made out. A breach of the 1992 Rules, if established, was likely to be relevant depending upon the nature of the breach.

The 1992 Rules

15. These Rules are important but are for guidance only as this Court has said already in R v Leung Lap-sun and others, 1994 No. 276. On that matter, Mr Tolliday-Wright invited us to have regard to what was said about an earlier version of these Rules by the Full Court in R v Lee Wing-loi [1974] HKLR 440. A passage in the judgment of Briggs, CJ reads (p. 445):

"In the voir dire, when the jury is not present, it is proper for counsel to refer to the Judge's Rules for the question of admissibility of a statement is then in issue. However, when a statement has been admitted it is for the jury to decide what weight to give to it, and it cannot assist them to know that there has or has not been a breach of the Judges' Rules. Indeed, there may be a danger that the jury will think that they are rules of law instead of advice to the police."

16. Mr Tolliday-Wright submits that this is not authority for the proposition that neither the judge nor counsel ought to mention the 1992 Rules to the jury or that, if it so decided, it should not be followed. If it were thought that the Full Court decided that counsel ought not refer to the Rules before the jury when an alleged breach is relevant to weight and credibility of the evidence, then that case cannot be correct. But we doubt if the Chief Justice meant to say that. Clearly, if there is a breach of the Rules which is relevant to weight or credibility, those matters can be dealt with in a proper manner before the jury.

17. In this case, the judge rightly refused counsel's invitation to rule on either the lawfulness of the arrest or breaches of the Rules in the course of trial. He gave a proper and correct direction to the jury on this point after being invited by counsel so to do.

Residual Discretion

18. Mr Tolliday-Wright also contends that the judge ought to have given reasons for refusing to exclude the statements of D3 in the exercise of his residual discretion. It suffices to say that so far as giving reasons is concerned, the principles mentioned above apply. Clearly there is a residual discretion at common law for the judge to exclude relevant and otherwise admissible evidence on the grounds that it is necessary in order to secure a fair trial of the accused. No exhaustive definition of this principle is possible. The most well-known example is, of course, where the prejudicial effect of evidence outweighs its probative value. It is also possible that a judge will consider excluding evidence as unfair after substantial and significant breaches of the 1992 Rules. But the circumstances when a judge will exercise this discretion will be rare, and only in cases where it is clearly demonstrated that exclusion is necessary to secure a fair trial of the accused. See R v Cheung Hon-yeung, 1992 No.132, per Power JA, as he then was; also R v Scott, R v Barnes, [1989] AC 1242, per Lord Griffiths at 1256; and R v Sang [1980] AC 402.

19. There were no grounds here upon which the judge could have excluded the confession statement once he had concluded that they had made voluntarily.

Bill of Rights

20. In a further submission, Mr Tolliday-Wright seeks to argue that this applicant was deprived of his rights under Articles 5 and 11 of the Bill of Rights. Counsel concedes, as he must, that he never sought to argue these breaches at trial. He submits that on the same grounds which rendered the arrest unlawful, there were breaches of Articles 5(2) and 11(2). Those two Articles read:

"Article 5(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

Article 11(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality -

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;"

21. Article 11(2) is not relevant to arrest and can be left. Article 5(2) is relevant and several matters arise. First, on the facts. If not raised below for the judge to consider, it is too late for this Court to decide disputed facts which were before the judge and later before the jury. There was a dispute below and the applicant never gave evidence. The judge dealt with it in his summing-up when he said about the evidence of the person arresting D3:

"He (the arrester) told you that he only arrested him for possession of firearms and not conspiracy to rob but he denied the suggestion that he didn't arrest him or caution at all."

22. Secondly, how would this assist the applicant even if established? If there was a breach of Article 5(2) for a failure to tell the applicant the reasons for his arrest, by the time he confessed, any unlawful arrest had been cured. On this point, see R v Kulyncz [1971] 1 QB at 367. At the latest, when this applicant was interviewed he was told why he had been arrested. The officer said:

"Now I arrest you for I have reason to believe that you have been involved in a conspiracy to rob case."

And when he made answer, this applicant said:

"I am willing to make this statement. I know that I am not obliged to say anything, and whatever I say may be given in evidence. In this case I was only responsible for driving vehicle."

He fully understood the reasons for his arrest.

23. This section of the Bill of Rights adds little if anything to the duty of an officer to inform the person of the grounds upon which he is being arrested at the time. Such a breach, even if established, could have no additional bearing upon the admissibility or the admission of the confession statements.

Two Final Points

24. Two final matters are advanced. The first in ground 11. Counsel suggests that the manner in which the judge directed the jury about DPC19366's evidence obscured a discrepancy argued for at the trial. With respect this is not an argument which could possibly succeed. It is a peripheral matter within the jury's province, and cannot be re-argued here.

25. The second is equally without substance. It is bad, as drafted, and reads thus:

"In the absence of other evidence of weight it would have been appropriate and fair to have directed the jury more carefully in regard to the case against the Appellant resting as it did purely on the confessions."

This is based on a short passage in Lord Devlin's book "The Criminal Prosecution in England" in which he suggests that in certain circumstances, it may be fair and proper to tell the jury that if it has doubts on an admissible confession, it should seek some other support before convicting. Fleshed out in oral submissions, counsel suggests that the judge ought to have invited the jury to seek independent support for D3's confessions. On this it suffices to say that the judge's direction on the confession statements was impeccable. The submission may accord with Lord Devlin's opinion of what the law ought to be. If so it has no support in law or authority in this jurisdiction. The submission is simply wrong.

26. For these reasons, we refuse D3's application for leave to appeal against conviction and his appeal is dismissed.

D2'S APPLICATION ON CONVICTION

27. We turn to the other applications for leave to appeal against conviction. First, Yin King-cho, D2. He raises a number of matters which he describes as "unfair aspects of the trial". In these, he seeks to re-argue matters which were before the jury and left properly for the jury's decision by the judge. The judge dealt fairly with evidence of this applicant. He reminded the jury of his evidence, he pointed out where it did not accord with that of prosecution witnesses, he dealt with his arrest, the taking of his statement on blank pieces of paper and his denial of the request to be a prosecution witness. The judge also reminded the jury of the violence to which this applicant said he had been subjected and the circumstances in which he said he had confessed. The judge does not have to remind the jury of every detail. All the evidence was before the jury for their consideration and decision. The suggestions of unfairness made by this applicant are not made out.

28. There is, however, one matter we would mention specifically. The applicant's complains that WPC55482 said that he was a "target person" in evidence before the jury. The judge refused an application to discharge the jury on that ground. He contends that in this respect the jury had already convicted him and it was unfair. In fact we are told that it was cross-examination in answer to a question which that officer was obliged to answer, she said she had been observing others - including this applicant - on the day before the arrest. There is no suggestion, as we understand it, that he was said to be a target criminal or anything like that. There is therefore no reason to think that the jury ought to have been discharged or that the jury could not fairly consider the evidence advanced by this applicant or that the trial itself became unfair. Nor in these circumstances was the judge's decision not to dwell upon the matter in the summing-up unfair to the accused.

29. There are no good grounds that he can possibly advance upon an appeal against his conviction. His application is refused and the appeal dismissed.

D4'S APPLICATION ON CONVICTION

30. We turn to Yuen Yan-chi, D4. In his application for leave to appeal against conviction, he also raises matters which were dealt with at trial or concern his confession statements about which he gave no evidence. Having not given evidence at trial, he now seeks to blame his counsel for that decision.

31. In particular, he says, there is no evidence against him on the firearms count. The validity of that submission is best demonstrated by a reference to his confession statement. In one passage - there were others - he says:

"I knew that the five illegal immigrants from Mainland would bring with them two guns and hand grenade(s)."

In his case, also, no arguable point is raised. The application is refused and his appeal is dismissed.

D7'S APPLICATION ON CONVICTION

32. Yeung Yiu-sang, D7, wishes to advance three grounds. First, that he did not know the Hong Kong people in the case before he arrived here. That is so but he was recruited for this robbery by the witness, Leung Wai-sang and said so in his confession statement. Secondly, he says he knew nothing about the use of firearms. Again, in his case, it is only necessary to refer to his confession statement. He said:

"I heard Wai-sang say on the boat that 'Pau Chai' might be used when we 'Tso Yeh' this time. On the other hand, I saw holding a plastic bag light yellow in colour when boarding. When we were getting off the boat, he let me hold it for a short while. I saw something wrapped up by newspaper inside the plastic bag light yellow in colour. It was very heavy. I hadn't open (sic) it to take a look because I was not familiar with him and it was embarrassing to do so. However, I guessed that it was a pistol."

Later, he says:

"'Tso Yeh' also means robbery while 'Pau Chai' refers to pistol."

33. Finally, he points out that Mok Nai-yuen, originally D9, was acquitted and where his name appeared in confession statements, it was deleted. He complains that the culpability of Mok Nai-yuen was thereby transferred to him. But a reading of the statements, particularly D7's and this applicant's own statement in which he admits his part in the matter demonstrate that there is nothing in this point.

34. His application for leave is refused and the application is dismissed.

THE APPLICATIONS ON SENTENCE

35. We turn now to the applications which each of these applicants makes for leave to appeal against the sentence imposed upon him. The grounds can be summarised that the sentences in each case were too heavy and that in some cases they were inconsistent one with another.

36. The sentences were as follows. We mention D1 only because he receives the heaviest total sentence and it is necessary to consider his sentence against the other sentences for their consistency. Nothing we say in this judgment in any way affects his right to advance any matters which he wishes to raise on his application when it is made in due course.

37. D1 was sentenced to 16 years for the conspiracy to rob, 16 years for the firearms offence, 2 years of which were to be consecutive to the earlier sentence and four years for the last offence, making 18 years in all.

38. Turning to these applicants, D2 was sentenced to 10 years on the conspiracy to rob and 4 years on the third offence, he having been acquitted of the firearms offence, making 10 years in all.

39. D3 was convicted of the same two offences as D2 and acquitted of the firearms offence. He was sentenced to 8 years on the conspiracy to rob and 4 years concurrently of the last offence, making 8 years in all.

40. D4 was convicted of all three offences. On the conspiracy to rob he was sentenced to 15 years, 15 years on the firearms offence, 2 years of which were to be served consecutively, and 4 years concurrent on the last offence, making 17 years in his case.

41. So far as D7 was concerned, he was convicted of the conspiracy to rob and the firearms offence, he was sentenced to 14 years on the conspiracy to rob and 14 years on the firearms offence, 2 years of which were to be consecutive, making 16 years in all.

The Conspiracy to Rob

42. In sentencing, the judge considered first the conspiracy to rob. He did not detail the serious aspects of this offence. They were perhaps too obvious. The important features were:

(1) The planning of a huge robbery of high value - $6m;

(2) At least 8 men were involved, probably more;

(3) They were in it for very high rewards;

(4) Youths were recruited from the Mainland with specific tasks - (a) to bring in firearms - in fact a revolver and a grenade; and (b) to assist in the robbery by tying up the watchmen at the factory;

(5) Obtaining a car to transport the participants;

(6) The obtaining of lorries and other implements for use in the robbery;

(7) Arranging for the disposal of the goods;

(8) The visiting of the factory to see the layout and the place where the stolen goods were to be delivered; and,

(9) The planning to use, if necessary, the pistol and the grenade, to carry out the robbery.

The judge took 16 years as a starting point. It is suggested that was too high because (a) the conspiracy was not a completed offence and (b) lower sentences have been passed in other similar cases.

43. We have been invited to consider a number of unreported cases where sentences had been imposed for conspiracy to rob using firearms or imitation firearms. The sentences passed vary greatly. In R v Wu Man-hon and others, 1993 No. 111, 14 years was taken as the starting point. In that case reference was made to R v Kan Chun-pang 1991 No. 504 in which this Court said that in a robbery with firearms ending in street battle, 25 years as a starting point would be appropriate. A number of other cases were cited in Wu Man-hon and others with a broad range of sentences in different circumstances.

44. R v Chan Wa-chiu and others, 1992 No. 144, is relied upon by Mr Tolliday-Wright. There three illegal immigrants had been recruited from the Mainland by a 4th participant, to rob with an imitation firearm. They all pleaded guilty to conspiracy and the judge took 8 years as a starting point. Counsel seeks to argue that the application for leave in that case was refused without comment by the court on the leniency of the sentence.

45. In R v Auyeung Siu-wai, 1992 No. 475, a case not cited to us, this Court said:

"In passing sentence the judge properly observed that the starting point for sentence in a robbery involving the display of a firearm was in the range of 12 to 15 years' imprisonment."

This was a robbery with a pistol and a knife by five people, of customers and staff in a massage parlour.

46. Perhaps this sufficiently demonstrates that it is unhelpful to cite a catalogue of unreported cases in an application on sentence which are neither guideline cases nor cases which decide any point of either law or principle. They are examples only of the very wide discretion which judges exercise on the varying facts and seriousness of cases of robbery and conspiracy to rob with firearms. It is a judge's duty in each case to take into account the full circumstances of both offence and offender. Having done so, the results vary widely. It is also apt to say that over recent years, because of the escalating use of firearms and the tendency to recruit from the Mainland, sentences for this type of offence have been gradually increased by judges in order to deter.

The Judge's Approach

47. In this case, it suffices to say that this conspiracy to rob was a most serious case and a starting point of 16 years was amply justified on the facts. The pattern of sentencing followed by the judge was to sentence for the conspiracy to rob and to assess the culpability of each applicant, taking into account his participation and also whether it was shown that he knew that firearms would be used. He also took into account the personal circumstances of each offender although this is a matter which weighs little in such a case.

48. Where firearms offences are separately charged, there is sometimes a danger that an accused will be sentenced twice for the intended use of firearms - that is on both the conspiracy and the separate firearms offence. We have considered whether the judge fell into that trap here. But it is clear that he did not do so. He sentenced on the conspiracy, taking into account whether each accused knew that firearms were to be used and his level of participation. He then sentenced on the firearms offence where any accused had committed this separate and serious offence in preparation for the robbery. So far as the sentences for the third offence are concerned, they are all concurrent. It is not necessary for us to consider them further.

49. Finally, the judge rightly considered totality. For D1 therefore he took 16 years as his starting point. There was no plea. He was one of the main conspirators who had recruited the Mainlanders and arranged for them to come into Hong Kong. He had asked for the weapons to be brought. He had hidden them personally. We say no more about his sentence. But the others were sentenced with this as a comparison.

D4's Application in Sentence

50. After a long trial it must be remembered that the judge is in a unique position to assess the culpability of each accused. In D4's case, he regarded his culpability as much the same as D1, because his participation was the same, but he reduced the sentence, by 1 year because of his previous good character. In his case, the sentence was neither manifestly excessive nor was it wrong in principle. His application for leave is refused.

D2's Application on Sentence

51. D2 was acquitted of the firearms offence. The judge in sentencing said that he was prepared to sentence him and the 3rd defendant on the basis that they had no knowledge that firearms might be used in the robbery. So far as D2 was concerned that was generous, having regard to his confession statement. His participation, however, was considerable. He visited the factory and knew where the goods were to be disposed of. A total of 10 years in his case was also neither manifestly excessive nor wrong in principle. His application is refused.

D3's Application on Sentence

52. D3 was also acquitted of the firearms offence. The judge sentenced him on the basis - borne out by his confession statements - that he was recruited as a driver. Giving weight to that and on the basis that he had no knowledge of the firearms, he was sentenced to 8 years total. In those circumstances, that was neither manifestly excessive nor wrong in principle. The application is refused.

D7's Application on Sentence

53. Turning to D7, he was recruited from the Mainland, he came here to rob, he was involved in bringing in the gun which, to his knowledge, was to be used. His complicity in the offence, although he did not know any of the Hong Kong participants before he came, was full. It was not, of course, in quite the same category as D1 and D4. That was reflected in the sentence when he received 16 years in total, 14 years on the conspiracy with 2 years consecutive on the firearms offence. Again his sentences were amply justified and were not manifestly excessive nor wrong in principle. His application is also refused.