THE QUEEN v. WONG KIT WING AND OTHERS

IN THE COURT OF APPEAL

1995, No. 512(C)
(Criminal)

THE QUEEN

v

WONG KIT-WING,
TSUI KA-WING and
TANG YUK-MING

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J U D G M E N T

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Mortimer JA  (giving the judgment of the Court) :

1. On 17 May 1995 each applicant was convicted of offences before Deputy Judge Bokhary (as she then was) and a jury. Wong Kit-wing (D1), Tsui Ka-wing (D2) and Tang Yuk-ming (D3) were each convicted of a joint offence of possession of arms and ammunition with intent and one conspiracy to rob. D1 and D3 were also convicted of two further joint conspiracy to rob.

2. On 14 July 1995 D1 and D3 were each sentenced to a total of 15 years imprisonment and D2 was sentenced to a total of 10 years imprisonment. Each seeks leave to appeal against both conviction and sentence.

The facts

3. The trial of these applicants was one of a series tried by Deputy Judge Bokhary involving nine accused in all. This was the consequence of a police raid on a flat in Pau Cheung Street, Tokwawan. Inside the flat the police found three hand guns and a quantity of ammunition in an open drawer. There were six men in the flat including the three applicants and Chan Kwan-mau who pleaded guilty to the above offences and others and gave accomplice evidence at the trial against the applicants.

4. Count 2 concerned a conspiracy to rob Lee Kwong-yim, the owner of a majong school. Chan described planning of the robbery in the flat followed by armed expeditions to carry it out which were later abandoned for various reasons. Chan implicated each applicant in this conspiracy and each confessed to it in voluntary statements.

5. Count 3 in the indictment alleged a joint conspiracy to rob the Chow Sang Sang Jewelry Shop and count 4, a joint conspiracy to rob the Kwong Shing Goldsmith Company. Chan gave evidence implicating D1 and D3 in these two offences and they both admitted complicity in confession statements. Chan’s evidence was that a group including D1 and D3 armed with guns went to the Chow Sang Sang Jewelry Shop to rob it but abandoned the plan when they found police officers patrolling the area. It was decided that a smaller shop should be chosen. This led to a plan to rob the Kwong Shing Goldsmith Jewelry Company (count 4). An armed group from the flat, including D1 and D3, went to this shop in order to rob but again found police officers patrolling the area and abandoned the plan.

D2’s application on conviction

6. It is convenient to consider D2’s application first because he was represented at the hearing by Mr Andrew Raffell.

7. At p.12B–D the judge directed the jury that:

“On the whole of the evidence you are entitled to find that each accused knew of the arms and ammunition in the flat, and had a fixed intention to commit in the immediate future a robbery as a member of a gang of armed robbers, some of whom would carry these arms and ammunition for the whole gang’s common purpose of committing an armed robbery.”

Mr Raffell submits that the effect of this direction was to withdraw from the jury’s consideration D2’s defence to count 1 and the issue whether his client knew of and was in joint possession of the arms and ammunition in the flat.

8. This submission is untenable in the light of Chan’s evidence and D2’s confession which recounted that arms and ammunition were left in the flat to be used by any occupant for the purposes of armed robbery; that D2 had stayed in the flat for a week in the flat before his arrest; that he had been out with the intention of committing the robbery in count 2 with others who were armed; and finally that he had handled one of the guns in the flat. In other parts of her summing-up the judge reminded the jury of D2’s evidence denying knowledge of the arms and ammunition and any intention at any time to use them. There is no substance in the point.

9. In ground 2 of this applicant’s notice, it is conceded that at p.42I-43C the judge directed the jury properly upon their approach to confession statements alleged to have been obtained by force. In spite of this, it is suggested that there were inadequate directions elsewhere in the summing-up, that excessive emphasis was placed upon the evidential value of the confessions and insufficient emphasis upon the applicant’s case that the confessions were fabricated and obtained under duress.

10. These submissions have no foundation. The judge’s summing-up must be considered as a whole. When it is so read, the jury can have been in no doubt as to the proper approach to these confessions. Nor were the judge’s directions concerning the applicant’s defence in any way unfair or misleading. No arguable point is raised on this ground.

11. Mr Raffell’s next submissions are equally without foundation. At p. 60C–H when reminding the jury of the contents of D2’s confession statement, the judge said:

“Incidentally there is on p.5 a list of an error which you may consider of no real importance at all. Following references to Saturday, Sunday and Monday respectively, are references in brackets to the 15th, 16th, and 17th of December. This should be – one would find if one were to look at a 1993 calendar – the 11th, 12th and 13th respectively. There may be similar errors elsewhere; and you may consider any such other errors to be equally unimportant.”

Mr Raffell submits that by describing the errors as “of no real importance”, the judge was dismissing what could have been an important issue for the jury. It is difficult to imagine how this obvious error could be an important issue. Nor were the exact dates of these events material to any defence advanced.

12. It was a sensible direction inviting the jury not to waste time on trivia.

13. Finally, in ground 5 Mr Raffell submits that the verdicts of guilty against this applicant were so inconsistent with the verdicts of not guilty on counts 3 and 4 that “no reasonable jury who have applied their mind properly to the facts of the case could have had arrived at the conclusion”. Again, this submission does not stand even superficial analysis. In his confession statements, he clearly admits guilt of count 2 and facts from which guilt of count 1 can be inferred. Further, the witness Chan Kwan-mau implicated him in these two offences.

17. First, he submits that he and those advising him had insufficient time at trial to prepare his defence in relation to the evidence of Chan Kwan-mau. He submits that the statements were served upon him at the trial and the judge refused an application for an adjournment for further preparation. The timetable at trial, however, shows that there is nothing in this complaint. Counsel for the Crown opened the case on 10 April 1995. Chan’s statements had been served before the trial and Chan was not called to give evidence until 2 May.

18. His second point is that his keys were produced as an exhibit at trial bearing a label on the reverse side on which were his name and the address where the guns were found. He submits that this was highly prejudicial to him. The transcript shows that the keys with the applicant’s name on the back of the exhibit label were produced. It was not certain that the jury had seen his name on the back of the label. Counsel for this applicant raised the point with the judge in the absence of the jury and she ordered that the applicant’s name and other details be covered over. In case the jury had noticed his name – which seems to have been unlikely – the judge warned the jury in these terms:

“I do not know whether you have the opportunity to look at them at all, but if you did look at the back of the label, I direct you that you must completely ignore that information as contained on the back of the label because that is simply not evidence, and please put that out of your mind. If you haven’t looked at that, that is fine; but if you have, just completely ignore the information. Do you understand?

Jury: Yes.”

The judge dealt with this matter impeccably and there is nothing in the point.

19. Thirdly, this applicant contends that a police officer told the jury that the applicant was arrested in a “target flat”, that he was a “target” and that he had a criminal record. On this ground, he says, his counsel asked for the jury to be discharged but the judge unfairly refused the application.

20. Again, the transcript demonstrates that the point is groundless. In chief, the officer described a photograph of the flat as of “the target unit”, but under cross-examination he explained that he was not keeping a special watch on the premises. Counsel left the matter there. It was insignificant and never referred to again.

21. As to the applicant’s criminal record, an arresting officer explained that he had checked with the Identification Bureau about the criminal records of those arrested. He did not go on to say that any had a record, but the matter was raised by counsel who applied for the jury to be discharged. So far as this applicant is concerned, the particular concern was that D2 was of good character and intended to put his character before the jury which could lead the jury to assume that the other two had a bad character. The judge considered the submissions and ruled that the jury should not be discharged, adding:

“Perhaps counsel for the 1st and 3rd accused will ultimately take the view that the least said the better, but if after they have had time to think it through there is any particular direction which they, or either of them, would like me to give to the jury in due course, I would, of course, listen to recommendations on the point.”

22. Decisions whether it is necessary to discharge a jury are uniquely in the discretion of the trial judge and only in very rare circumstances will the Court of Appeal interfere with its exercise. There are no grounds for interfering with the judge’s ruling especially as no further submission was made by counsel for D1. Indeed, D1 gave evidence that he was in the flat in Pau Cheung Street because he had jumped bail for an offence on which he was later tried and acquitted. It was clearly agreed by counsel that the matter should be left there. There is nothing in this ground and for the reasons that we have set out, this application by D1 is refused.

D3’s application on conviction

23. D3 also seeks to argue that the judge ought to have discharged the jury. We reject this ground for the reasons given. He also submits that the summing-up was biased against him in favour of the Crown and that the judge said nothing about the presumption of innocence when reminding the jury that they could convict on his confession statements. There is no support on the record for either of these submissions and his application is refused.

The applications for leave to appeal against sentence

24. The judge sentenced the applicants after all nine accused involved in the series of robberies and the possession of arms and ammunition in the Pau Cheung Street flat had either pleaded guilty or been convicted after trial. The sentences passed on these applicants were as follows: D1 was sentenced on count 1 to 5 years imprisonment, on counts 2, 3 and 4 to 14 years imprisonment concurrent with each other, but 1 year consecutive to count 1, making 15 years in all.

25. D2 on count 1 was sentenced to 4 years imprisonment, on count 2 to 9 years imprisonment with 1 year consecutive, making 10 years in all.

26. D3 was sentenced on count 1 to 5 years imprisonment, on counts 2, 3 and 4 to 14 years imprisonment concurrent with each other but 1 year was made consecutive to count 1, making 15 years in all.

27. D1 and D2 appears in persons. D3, having initiated applied for leave to appeal against his sentence, has abandoned his application. So far as D1 and D2 are concerned, each contends that the sentence passed him is manifestly excessive. In addition, D1 submits that a higher sentence was passed upon him than was passed upon D2 and that therefore his sentence was wrong in principle. D2 contends that his role was a much lesser one than the others, that he now has a baby daughter whom he wishes to look after and that in prison, he is now undergoing education and has been very successful. He advances these matters to support his application on sentence.

28. So far as D2 is concerned, he was only 18 at the time of the offences with only one relatively minor previous conviction. D1, however, could not rely upon his good character.

29. Having regard to the evidence and the jury’s verdict, the judge did take into account that D2’s involvement in this matter was less than the others and it was on this basis that she passed reduced sentences on him. Undoubtedly, the sentences passed on both D1 and D2 were substantial. However, the whole circumstances here demonstrated careful planning, the provision of guns and the determination to carry out robbery using those guns. As the judge said:

“The danger to the public is obvious.”

The sentences were heavy but the judge took into account in reaching those sentences everything that she ought to have taken into account. The sentences were entirely justified by the nature of the offences which had been committed and the circumstances in which they were committed.

30. The applications are refused.