R. v. CHEUNG KA VENG and Another

IN THE COURT OF APPEAL

1995, No.396
(Criminal)

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

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

J U D G M E N T

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

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

1. In this matter there were originally eight defendants. They faced, in all, 13 counts of robberies. The only two with whom we are concerned today are the 6th defendant, Cheung Ka-veng, to whom we will refer as D6, and the 8th defendant, Cheung Kam-ming, to whom we will refer as D8. D6 is represented by Mr. Mitchell-Heggs and D8 by Mr. Y.C. Yeung. D6 was convicted on the 1st, 3rd and 8th charges and D8 on the 10th, 11th, 12th and 13th charges after trial in the District Court before Deputy Judge Andrée Wiltens. Each now appeals against those convictions.

2. The charges involved robberies for the most part in food shops and restaurants. In each of the charges a number of persons, the combinations varied in accordance with the individual charges, were involved.

3. In the first count, in which D6 was involved, there was a robbery in the Bo Lin Vegetarian Food Shop at about 10:15p.m. on 4th July 1993. The restaurant had closed for the day when two men entered and menaced those who remained on the premises taking cash and goods such as necklaces from the staff and, principally, $70,000 from the safe of the restaurant which was the day's taking.

4. D6 was also involved in the third count. In that count on 15th August 1993, a Mr. Yeung Kam-tai, after having had breakfast was proceeding to his place of work at the Paul Sun Kee Transportation Company when he was set upon by two Chinese males, one of whom produced an 8" long cutter, and robbed of $90,000 in cash, that being the wages for company's workers.

5. The 8th count in which D6 was also involved took place at the Sun Tak Hing Noodle Shop on a day in October 1993. The shop was about to open at 5 a.m. when two men, armed with knives, pushed their way in and took $3,000 from a cash drawer of the shop.

6. D8 was involved in the 10th, 11th, 12th and 13th count. The 10th count was a robbery at the Mini Paris Vietnamese Restaurant. As the restaurant was closing on 29th December 1993 at 10:45, one of the employees was menaced by a man with a knife who, with another, declared robbery and stole $15,550 cash and a number of valuables from the restaurant employees.

7. Count 11 was again a restaurant robbery and again the employees were menaced late at night and $10,000 were stolen. That occurred at the Choi Lung Lau Shanghai Restaurant at 10:30 on 19th January 1994.

8. In Court 12 the Shanghai Inn, another restaurant was robbed on 6th February 1994. Again two Chinese males entered, one of whom was armed with a beef knife, robbery was declared and cash, which included $29,000, the restaurant's daily takings, was stolen along with other property such as wristwatches.

9. The final count, the 13th count, involved the Chui Lam Noodle Shop and took place on 20th February 1994. The modus operandi was the same. At 10:35p.m. two Chinese males forced their way into the shop, declared robbery and stole cigarettes and keys and, principally, $23,000 which was the takings of the restaurant for that day. The restaurant owner, Mr. Yeung Man-hong, bravely pursued the robbers when they boarded a taxi and, indeed, continued his pursuit after a change of taxi. In consequence of his persistence the robbers finally abandoned the second taxi leaving behind keys which they had stolen from Mr. Yeung and, more importantly, a mobile phone which was later admitted to be the property of a Mr. Cheung King-fu, the brother the D8.

10. All defendants simply denied having been involved in the charges and those who gave evidence on the general issue adopted the earlier evidence they had given in their voire dires. D8 alone did not give or call evidence on the general issue.

11. D6 gave evidence both in his voire dire and on the general issue and, on the latter evidence, stated that, at least with regard the 3rd count, which occurred on 15th August 1993, he could not have been involved because he had a plaster cast on his foot and he was at home.

12. Mr. Mitchell-Heggs, who appears for D6, has attacked the ruling of the trial judge admitting his confessional statement. He asks this court to go behind that ruling suggesting that the trial judge failed to give proper consideration to the evidence before him. The judge had the advantage of seeing the witnesses, of hearing their evidence and of making his assessment as to their credibility upon the basis of what he saw and heard. This advantage we do not have. It is suggested by Mr. Mitchell-Heggs that there was a serious doubt as to the voluntariness of the confession which was never resolved. This doubt, he says, arose because of medical evidence that came from a Dr. Hui. Dr. Hui was not called but his report was tendered in which he said that upon examining D6 he found a 1 cm circular bruise over the left shoulder, a 1 cm circular bruise over the left anterior lower chest wall, a 1 cm circular bruise over the right glon and a 2 cm x 3 cm over the right thigh. His examination was on the afternoon of 25th May 1994, some two days after the arrest of D6. It is contended that the trial judge failed to give proper consideration both to this evidence and to the evidence of counsel, Miss Kelly Shui, who saw the applicant at the police station on 23rd May after he made his third statement.

13. The trial judge, when dealing with this evidence, said:

"I accepted that the sixth accused did complain to Miss Shui (the counsel who saw him in the police station) in similar terms to his complaints to me. Again, however, I comment that mere repetition of the complaint does not make it more credible - it remains a question of credibility, and although it was an early complaint, I decided against the sixth accused on that issued."

14. As to the injuries, he said:

"Five prosecution witnesses were called. I believed them as to how they effected the apprehension and interviews of the sixth accused. The sixth accused elected to testify, but after again giving myself a 'Berrada' warning, I concluded he was lying to the court. There were admitted facts as to the injuries the sixth accused was found to have when he was medically examined two days after the statements were completed. Those injuries I found to be so few and minor that they are inconsistent with the sixth accused's allegations of prolonged and severe assaults."

The weight to be given to those matters was wholly within the province of the trial judge. We are being asked upon the basis of the record to say he was wrong to accept the evidence of the police officers and was wrong to reject the arguments based upon the medical report and the evidence of Miss Shui which suggested that they were of such weight that the judge should, at least, have had doubts as to the truthfulness of the officers. The judge, as indicated above, specifically adverted to and dealt with both of these matters. He was seized properly of them. Nothing has been argued which would properly allow us to call his ruling into question. This ground has no merit and we reject it.

15. The second ground argued by Mr. Mitchell-Heggs is in several parts but is encapsulated in Ground 2(i) which states:

"The 'alternative procedure' having been adopted of the purposes of the voir dire, when the Appellant came to testify on the general issue the question of admissibility of the confession (ruled admissible before close of the prosecution case) should have been re-addressed or considered in the light of the Appellant's evidence of alibi."

We say immediately that we find no merit in this ground. The evidence which it is suggested required a reassessment is the "alibi" evidence of D6 that he was at home at the time of the robbery and could not have been involved in the third count. The judge said:

"I scrutinized all the accused as they gave their brief evidence with a view to ascertaining their demeanour and veracity. I came to a separate and distinct conclusion in respect of each of them, although for the sake of bravity I can say simply that I did not believe a single one of them."

He was here clearly rejecting the "alibi" evidence. There was nothing which called for a reconsideration of the voire dire ruling. We reject also this second ground.

16. D6's application for leave to appeal against conviction is refused.

17. We turn now to the grounds argued on behalf of D8 by Mr. Yeung. Again Mr. Yeung was asking this court in almost every ground to hold that the judge was wrong to admit the cautioned statement of D8. We do not find of any merit in Grounds 1A and 1B.

18. Ground 2 is as follows:

"The Learned Deputy Judge erred in failing to take into consideration other co-accuseds' evidence of impropriety in the taking of confession statements by officers from the same team to see whether this evidence bore a 'striking similarity' to the Appellant D8's evidence. As a result the Appellant D8 was deprived of a realistic probability for his evidence to be found more credible."

19. In any case a trial judge, unless there is some indication to the contrary, must be taken to have had in mind the evidence before him. The unsupported contention that he might have been unmindful of the totality of the evidence is one to which, normally, no weight can be given. In the present case, however, the matter is put beyond doubt as the trial judge in the following passage clearly indicated that he did have in mind the totality of the evidence:

"I regarded the evidence as over-lapping the various voire dires, with several witnesses testifying on numerous occasions. To some extent therefore, I did consider the material on all the voire dires as impacting on each individual voire dire and that was certainly so with regard to the final submissions."

The judge was considering the totality of the evidence and there is nothing, therefore, in Ground 2.

20. Ground 3 and Ground 4 were argued together. The thrust of those grounds was that the trial judge failed "to leave the voluntariness issue open" at the end of the day when he was considering the issue of guilt. We find nothing to support this suggestion. A trial judge is not required to state in terms that he is leaving that issue open. We have no doubt that had the trial judge when he came to consider the issue of guilt been occasioned any doubt as to the voluntariness of the statements, he would have given heed to it. The fact of the matter is that he was not. Indeed is the case of D8 there was little more to consider as he neither gave nor called evidence.

21. It is suggested in Ground 5 that the trial judge adopted "a wrong standard of proof when he found it necessary for the defence to establish as a conclusion that one document have spawned the other". This ground arises out of a reference by the judge to a contention that the statements of two of the defendants were so similar as to raise a suspicion that they were concocted by the police. Suffice to say that we are satisfied that what the trial judge was not improperly imposing an incorrect burden of proof upon the defence but was saying no more than that if two persons told of the same incident you would inevitably expect to find similarities in the story of each and that suspicions would only arise if the statements were markedly similar but that there was nothing of that sort in the present case.

22. Ground 6 was not pursued.

23. Ground 7 suggests that the judge failed to direct himself as to character. The judge gave himself a 'Berrada' warning when considering the voire dire. This was, so it was argued, only a credibility warning and not a propensity warning. It is suggested that when he came to consider the issue of guilt, when propensity was in issue, there was no such warning. A judge sitting alone is not required to state in terms that he bears character in mind. This court has so ruled on a number of occasions. Further we are left in no doubt that the judge was mindful of character when considering the issue of guilt.

24. Finally in Ground 8 it is suggested that the trial judge failed to consider each charge separately. This suggestion is made because of the statement of the trial judge when he said:

" I was exhorted on behalf of each accused to place little or no weight on the various statements made by each of them. I looked at these documents very closely during the course of the voire dires, and subsequently. I am of the view that a voluntary confession by the perpetrator of a crime is the best evidence there can be. I noted in the two statements of agreed facts several matters were admitted which could be considered corroboration."

He then went on to say one of those matters was the finding of the elder brother's mobile telephone in the get-away taxi after the commission of Charge 13. The trial judge was not here considering the individual charges. He was dealing with defence submissions that little or no weight should be placed upon the various statements that had been made. He was not, we are satisfied, confusing the admissible evidence on each charge but was simply saying when dealing with a defence submission that as regards two of the statements there was independent evidence which indicated that they were truthful and could be relied upon. There is nothing in Ground 8.

25. The applicant no longer pursues his application for leave to appeal against sentence. The application for leave to appeal against conviction is dismissed.