TSANG WAI HING v. R.

IN THE COURT OF APPEAL

1993, No. 83
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Tsang Wai Hing appeared for trial before His Honour Judge Yam, as he then was, sitting as a Deputy Judge of the High Court, and a jury upon an amended indictment containing a total of thirteen counts, all of which alleged robbery on various days stretching from 17th May 1991 to 9th September 1991. On the first, third, fourth, sixth and seventh counts he was found guilty of the alternative offence of handling stolen goods. On the fifth, eighth, ninth, tenth, eleventh, twelfth and thirteenth counts, he was found guilty of the substantive offence of robbery. He received a total sentence of 8 years' imprisonment. He sought leave to appeal against his conviction and, by an application made out of time, if necessary his sentence.

3. When this matter first came before another Division of this court on 18th August 1993, the applicant asked for an adjournment in order to provide himself with private legal representation. That application was granted.

4. On 23rd December 1993, the matter came on for hearing again, was heard and the application in respect of conviction was dismissed but leave was granted to appeal against sentence out of time, that appeal was dealt with and the sentence was increased to a total of 10 years' imprisonment. We stated we would give our reasons later and this we now do.

5. Tsang took issue with his conviction on the basis that the trial was an unfair one and the trial judge had failed to bring to the attention of the jury "doubtful points of the case in a just manner". The doubtful points to which he referred were first: that there was insufficient evidence to show that he had been involved in the offence. His identity card, which was used for the purpose of pawning certain of the stolen goods, was one he had lost and he was therefore not involved in those pawnings. Second: there was insufficient evidence to show that the jewellery which was recovered from the pawn shop had come from his involvement in the robbery. He questions the identification of one of the items of jewellery by its owner. Third: and this figured prominently in the course of that which he had to say to us, a certain pair of black trousers found at the time of his arrest were not his. Nothing belonging to him was found in those trousers. They were being worn by a person Chan Hung whom he accuses of making him a scapegoat. Fourth: when his living quarters were searched he was not there and in any event that search was not carried out until several hours after the offence and no picture were taken of the premises. Fifth: he says that as the offence was committed at 8.00 p.m. in the evening and he had only come off duty at Kwai Chung at 7.30 p.m. he had nothing to do with any robbery. He was not properly identified in any event. Sixth: his counsel at trial let him down by accepting that handling was a viable alternative; and, that he failed to go and take photographs of the applicant's residence. Seventh: he raised the issue again of the matter of the black trousers and further went on that the stolen things were found in the rear flat but one of the investigating policemen said they were found in the front flat. Eighth: and this refers to count 10, the victim there had given evidence that the robbery was committed at 2.30 p.m. and reported at 5.00 p.m. Yet the time stated in the police record was 4.45 p.m. The jewellery recovered from the pawn shop was taken to the shop between 4.00 and 5.00 p.m. This despite the robbery being at 2.30 p.m. He suggests that these were discrepancies. Ninth: during the trial Lam Yuk, the witness in count 12, testified the jewellery stolen had been bought by her in Thailand and bore a label "Man Wo Hing" but the gold necklace produced in court did not bear that label. Therefore, she could well have misidentified her belongings and finally, point 10, he complains that there was no identification parade.

6. At trial, it was not disputed that thirteen robberies took place. The issue was the involvement, if any, of the applicant in those robberies. The trial proceeded on the basis of dealing with count 13 first for it was immediately after the commission of that offence that the applicant was arrested and this also brought in the matter of the black trousers. This was a lift robbery when Madam Pau Yuk Ping was robbed of various items of jewellery by a man with a knife. She described the robber as wearing a dark blue T-shirt and dark trousers "like black" in colour. A neighbour of Madam Pau heard her cries of robbery, looked through his main door and saw persons coming in and out of the lift with one person going down in it. The neighbour telephone the caretaker. The caretaker, having received the phone call, watched the lift and saw someone come out of it whom he described as wearing dark bluish coloured T-shirt and a pair of black trousers. He followed that person to Fife Street from Argyle Street and to Portland Street. The man was never out of his sight before he went into a building in Portland Street. In that building he saw the man open the door to Flat No.3 and go inside. The caretaker then went back to his own building and led the police to the house in Portland Street and to the premises indicated where the applicant was arrested. When the police entered the premises, the caretaker could not at first see the person he had followed. The bath room door was opened and inside the bath room was the man the caretaker had followed. That was the applicant. He identified the clothing worn by the man and which was seized on a bed in a cubicle.

7. A full Turnbull warning was given by the trial judge.

8. It was the evidence of investigating police constables that the applicant had indicated the bed he occupied inside the cubicle which was the upper bed of Bed No.4. He also identified the blue T-shirt and the black trousers as clothes which he had worn on his arrival in his cubicle. A necklace, recovered in the cubicle, was identified by the victim as hers. She also identified one other item of the jewellery which was found in the applicant's cubicle.

9. In evidence, he raised precisely the same point which he raised in his homemade grounds: that he was not wearing the T-shirt and trousers. They were worn by Chan Hung. He was assaulted by the police; the search of the his room was not carried out in his presence. All these matters were left clearly and precisely to the jury for their consideration. They were fully and properly directed on the issues of robbery, of handling and of recent possession. Having considered those directions, no point can possibly arise from them.

10. There was additional evidence in that the applicant made a cautioned statement. This, its truth and manner of its taking, was contested before the jury. Again, the judge brought to their attention all the relevant circumstances.

11. He did, however, having told the jury that:

"If, for whatever reason, you are not sure whether the confession was made or not sure whether it was true, then you must disregard it."

go on:

"If, on the other hand, you are sure both that it was made and it is true, you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances."

12. With respect to the trial judge, this can be a dangerous formula to use. We strongly endorse the view expressed by a differently constituted division of this court in R. v. Yu Ho Man CA 370/1992 at p.4 (unreported) that such a formula is undesirable and should not be used in future.

13. Of the items stolen in the counts 1 to 12, some were recovered in a cookie tin during the search of the applicant's cubicle, some in the black trousers which had figured so prominently and others were retrieved from pawnbrokers. Of those items which were pawned - and this related to counts 5, 8, 9, 10, 11 and 12, the items were pawned within hours after the robbery took place. In respect of count 1, the items were pawned the day after the robbery; in respect of count 6, one item was pawned one day afterwards and another item was pawned two days later; in respect of count 7, the items were pawned three days later; in respect of count 4, two months later. In respect of count 2, the items were found in the cookie tin. The individual pawnbrokers gave evidence, the judge left the matter of their evidence to the jury thus:

"The question for you to decide is whether each of these pawnbrokers has made the correct identification of the man who came into his shop to pawn things as the one shown in the I.D. card, i.e. whether you are sure it was the defendant himself who had pawned these items on each and every occasion. You have to make your decision in respect of each count individually and separately."

He repeated his Turnbull warning and made reference to some matters which he considered to be weaknesses in the identification evidence. He drew to the attention of the jury the applicant's evidence that he had lost his identity card. The suggestion was that whoever pawned the things in counts 1 to 7, where his identity card was used, might be using that lost identity card. In respect of counts 8 to 12, the pawn tickets themselves were found in the applicant's cookie tin. The applicant said that they were all those of Chan Hung because, for those pawnings, he had lent his identity card to Chan Hung to carry out the pawning.

14. As to the defendant's allegation in respect of the treatment he received from the police, again this was fully left to the jury. The trial judge concluded his summing-up by again reminding the jury of the defence raised by the applicant.

15. All that the applicant has said to us in his homemade grounds of appeal to which we have earlier referred and in his submission to us were matters which arose in the course of the trial and which were preeminently matters for determination by a properly directed jury. Here, this jury was, with the one possible exception to which we have referred, a properly directed jury. By the verdicts they returned, they clearly took great care. We found no merit in the application and it was refused.

Sentence

16. As we have indicated, the applicant sought leave out of time to appeal against his sentence. He was asked if he wished to proceed with that application and the court raised the issue of the totality of the sentence passed. He was again if he wished to proceed and he indicated that he did.

17. We considered that the judge was unduly lenient in the totality of his sentence. These were a multiplicity of robberies committed in private premises, or in lifts, by the applicant and a knife was involved. The applicant had a bad criminal record starting in 1975 including two counts of robbery in 1980 and three counts of robbery in 1985. In the latter case, he was sentenced to a total period of 7 years' imprisonment.

18. We did not think that the totality of 8 years after trial, and allowing for convictions on certain of the counts for the alternative of handling, properly reflected the criminality of the applicant. We therefore gave the leave he sought, treated the hearing of the application as the hearing of the appeal and allowed the appeal to the extent that the totality was raised to one of 10 years' imprisonment. Our intention was to reflect this by increasing the sentence on count 5 to 8 years' imprisonment. We do not think that we properly effected this.

19. The trial judge had, of necessity, imposed a large number of individual sentences. What he did was this:

Count 5: 6 years' imprisonment.

Counts 1, 3, 4, 6 and 7: 3 years' imprisonment on each, the sentence on those counts were set to run concurrently from the first day of custody.

Counts 8, 9 and 10: 6 years' imprisonment on each. These were set to run concurrently with each other but these sentences were not to run until after one year of custody, that gave a totality of 6 years' imprisonment commencing one year after the defendant was first in custody.

Counts 11, 12 and 13 imposed six sentences of 6 years each. These were set to run concurrently with each other but were not to commence until after two years the defendant is in custody. This gave a totality of 8 years' imprisonment.

20. While stating in open court that our purpose was to achieve a total of 10 years, it has now become apparent to us that mathematically our method was not correct because of the last set of sentences being set to run two years after he had been in custody. We do not think we should alter the rest of the general sentences but would alter the sentence on the fifth count to one of 10 years' imprisonment which would give effect to the intention we expressed.