LI SHU CHOW v. R.

IN THE COURT OF APPEAL

1992, No. 524
(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. Li Shu Chow appeared for trial before Leonard J. and a jury on an indictment containing four counts. These were, respectively, attempted robbery on 11th June 1991 in Hong Kong Bank at Shop No. 12, ground floor of Hang Hing House, Hing Wah Estate; possession of an imitation firearm at the time of committing that attempted robbery on 7th August 1991 in Ka Wah Bank at the ground floor of Hung On Building, No.4A, King's Road; and possession of an imitation firearm in the course of that robbery. He was convicted on all four counts and sentenced to a totality of 16 years' imprisonment made up of 12 years on the first count; 3 years on the second count concurrent with the first; 13 years on the third count, which was directed to commence 3 years after the commencement of the sentence on the first count, and 3 years' imprisonment on the fourth count concurrent with the first count. He sought leave to appeal against both his convictions and his sentence.

3. The applications first came before the court on 5th January 1994, the applicant was unrepresented, and the matter was adjourned to a date to be fixed.-It came again before the court on 4th May 1994 and the applicant was then represented by Mr. Buchanan on the instruction of S.Y. Chu & Co. At the conclusion of that hearing, we refused the applications for leave to appeal against the convictions and went on to hear the application in respect of sentence. Leave was granted to appeal against sentence and the appeal was allowed to the extent that sentence on the first count was reduced to one of 10 years and on the third count to one of 12 years: the sentences to run concurrently. The sentences on counts 2 and 4 were to remain the same and concurrent. This gave a totality of 12 years' imprisonment.

4. We stated we would hand down our reasons later and this we now do.

5. It was the Crown's case on the first set of counts that, at about 4 p.m. on 11th June 1991, a teller in the Hong Kong Bank on the ground floor of Hang Hing House was standing between counters 1 and 2. It was her evidence that a man walked into the bank hall holding a pistol-like object in his right hand. He had a white mask covering his mouth and his nose. He stated that it was a robbery and not surprisingly, the teller was a "bit frightened" and squatted down. The alarm was set off and the surveillance camera came on with it. The man then left the bank. In a statement given about an hour after this incident, the teller described the man as being about 5 foot 8 to 5 foot 9 tall; fat with a round face and average hair style. The lighting conditions were good at the time of the incident and the man was a little over a foot away from the teller. She had thought that she had seen his face for about three to five seconds. As the judge directed the jury on page 10H:

"Now you may think, members of the jury, that that is a very short time indeed to observe the face of someone and then identify him correctly on a subsequent occasion."

6. The man was a total stranger to the teller.

7. Some 73 days later, the teller attended an identification parade upon which she picked out the applicant. In her evidence at trial, the teller said that she was a hundred percent sure that the person she picked out on the identity parade was the person who attempted to rob the bank. She however agreed that, in her statement made to the police shortly after the identity parade, she had expressed that she was 70% sure on the basis that his appearance was "70% similar" to that of the bank robber. In respect of this part of her evidence, the judge directed the jury at page 12T:

" Now, members of the jury, I suggest to you that if you were asked to convict on the evidence of madam Yu alone, you could not do so because her opportunity to observe that man was so short in all the circumstances where he was wearing a mask, that you might well find it impossible to say that you were sure that she got the right man 73 days later on the identification parade, even though she herself may genuinely believe that she did get the right man.

Now I am not suggesting to you that she has not got the right man, all I am saying is that if that were all the evidence that you had before you, it would be very dangerous indeed to convict on it.

Of course, that is not the only evidence before you and you are entitled to give to the identification evidence such weight as you think fit as part of the evidence as a whole."

8. No pistol was recovered in respect of this robbery.

9. Dealing now with the second set of counts: a teller of the Ka Wah Bank on the ground floor of Hung On Building was, at about 3.20 p.m. on 7th August 1991, standing at counter 3 in the bank. She was doing the accounts and suddenly found a man standing in front of the counter. She saw a pistol. A piece of paper was dropped onto her counter. The man was wearing a red cap and black glasses. Until the man said "Robbery. Money wanted" she did not take great notice of the man. The man then asked her to take out all the money, a request which stunned her for a moment. As there was no immediate reaction from her, the man then said to her "Take out the money. I have a pistol, otherwise you will be shot dead." The teller then took out money from her drawer and gave it to the man. He put it into a bag he was carrying. The man did not leave at that point. The teller said that she did not have any more money but he still remained, so she took some $10 notes from the next door counter and gave them to him. The man then took them, put them in his pocket and left. It was only after that that she read the piece of paper which had been dropped onto her counter.

10. It was her evidence that her observation of the man took place over a period of about one minute and that the man was standing very close to her. The lighting at the time was normal.

11. In a statement given to the police on the same day, about one hour after the incident, she described the man as about 30 years old, wearing a short sleeved T-shirt of blue and white horizontal stripes; of strong build; about 5 feet 10 inches tall and with long hair. He was carrying a black travelling bag about 8 inches by 6 inches and, as we have already indicated, wearing black spectacles and a red cap. The total cash she had given to the man was $23,000. In her evidence in court, she adhered to the description of the man.

12. On 23rd August, 16 days later, the teller attended an identification parade. At that identification parade, she identified the person standing at No.8 as the robber saying in her evidence before the court "when I looked at him, it was him". She was then asked by the counsel prosecuting this question "Were you a hundred per cent sure that the man you identified was the robber?" Her answer was "70 to 80 per cent alike." Her period of observation at the bank had been about three minutes.

13. When it was suggested to her in the course of cross-examination that she had misidentified someone on the parade. She replied:

"I did not misidentified. There were nine person at the parade for me to identify and he was the man who looked most alike."

The trial judge, and properly, drew this evidence to the attention of the jury. He said:

"Now that is important, you may think, members of the jury, because it's one thing to go and look at nine people and say 'Well, of those nine people, that man is the one who is most alike to the robber'; but it is another thing to say 'that is the robber'. There is a difference."

He went on at page 19D:

"So you may think it is a question, members of the jury, whether this lady was really saying 'that is the man' or whether she was saying 'of the nine people on the parade, that is the man who looks most like him'. You may think there is a big difference."

14. Another teller, who had been standing at counter No.4 in the bank on the day of the robbery, also gave evidence. She said she saw a man with a black and silver gun standing in front of the first teller . She saw him hand in a paper slip and then, seeing that none of the tellers were taking notice, she heard the man said "Kill you". She saw the other teller hand over the money whereupon the man left. Her period of observation was about one to two minutes. She also attended the identification parade on 23rd August.

15. In her statement given to the police on the day of the incident, she described the man as 5 feet 8 inches tall, stout build, speak in Punti, wearing a dark glasses, a red cap and a striped T-shirt. At the identification parade she identified No.3 who was, as she put it in court, the height, body build and other things "the most similar to the robber". She agreed that she had told the officer in charge of the parade that she was not "very sure".

16. The judge again stressed to the jury the importance of considering whether the second teller was really identifying the applicant as the robber or merely identifying one person out of the nine who was most similar to the robber. He went on at page 21K:

"If that's all she was saying, then she wasn't identifying the defendant as the culprit. She was just saying he was the most similar of those 9 people."

17. The judge made it clear to the jury that she had never said to them that she had picked out the applicant as the culprit.

18. It is of note that all the persons on the identification parade wore red caps and black glasses and that the applicant had on the parade for the first teller stood at position 8 and for the second teller at position 3.

19. The "other evidence" to which the judge had made reference consisted of statements under caution made by the applicant. The first of those statements was on 22nd August 1991 when the applicant, having been informed of the facts as they were then known to the police of the Ka Wah Bank robbery and being cautioned, said:

"I understand, I have neither robbed nor been to Ka Wah Bank. On that day I went to work but I can't remember where I was at 3 something. Maybe I was driving my boss's vehicle or at the ground floor of my boss's residence at Jardine's Lookout."

20. The second statement was taken at 6 p.m. on 23rd August, that is after the identification parade, and he was reminded of the Ka Wah Bank witnesses and the identification they had purportedly made on that parade. He was further cautioned. He made answer:

"As I have been picked out, (I) (admit) (that) this robbery was done by me. That gun was a toy air gun which I picked up from a refuse point at Jardine's Lookout a long time ago. As I have owed money to the loan shark, I therefore took that air gun and wrote a slip to rob Ka Wah Bank on that day. I took away twenty-three thousand dollars and then I went inside Victor Park where I dumped the air gun into the litter bin. I have given those money to the loan-shark. In addition, I am picked out by the staff of Hong Kong Bank, Chaiwan today. I recall that this case occurred on 11.6.91. I took the same air gun to rob Hong Kong Bank but all the staff got down and I couldn't obtain money, so I left."

21. There were certain questions then put to the applicant by the investigating officer and in the course of his answers the applicant described the appearance of the gun and what he had done with it after he had found it, which was that he had put it into a plastic bag and put that bag in the boot of the car which he was employed to drive. After the Ka Wah Bank robbery he had gone into Victoria Park and thrown it into a litter bin. He described writing the words "Robbery, have gun, want one hundred thousand dollars" on the tinfoil of a cigarette packet. He said that at the time he robbed the Ka Wah Bank he was wearing the same T-shirt as he was wearing at the time of the interview. The black leather bag, the red cap and the pair of sun glasses had also been kept in the boot of the private car he drove. He had been indebted to a loan shark and repayment was the motive for the robbery and attempted robbery. He refused to give the particulars of the loan-shark.

22. At trial, the applicant gave evidence. He was, at the time of the two incidents, a chauffeur with the Fu Tai Group with an average income of $12,000 a month. As he worked overtime driving his boss in the evenings, he would be given substantial overtime. He was a man with a clear record and of good character. He denied being involved with the Hong Kong Bank attempted robbery. He had worked on that day but was unable to remember exactly where he was: which, as the judge pointed out to the jury, was hardly surprising since he was not asked about his whereabouts until his arrest on 20th August.

23. He was more specific as to his whereabouts at the time of the Ka Wah Bank robbery. He had, at 3 p.m., gone to the Fu Tai Group at the Shun Tak Centre to get some documents which he had then taken to Tsuen Wan.

There he took them to the Fu Tai Seafood Restaurant delivering them between 3 and 5 p.m. His arrest was coincidental for he was at the address of another man for whom the police were looking having a meal.

24. A submission was made by counsel then appearing for the applicant that the statement taken after the identity parades was really a concocted statement and was an attempt by the police to reinforce the poor identification which had taken place. Again, this was left for the jury to consider as were the allegations that threats and inducement were made and offered, which the applicant said were in order to force him to give the admissions he did. He had signed the concocted statement because of the treatment meted out to him.

25. The trial judge made it clear to the jury that the statement made by the applicant after the identification parade was the principal evidence upon which the Crown relied to secure conviction. There is no doubt that the jury were fully advised both by the judge, and indeed by counsel prosecuting on behalf of the Crown, that the identification evidence, such as it was, was not sufficient, by itself, for the jury to come to a conclusion of guilt.

26. While it has not been made as specific ground of appeal we note one direction of the trial judge which we think to be unfortunate in its wording for he said this to the jury at page 37Q-R in relation to the view they should take of the statement and the allegations made by the applicant in relation to it:

"Now if you are unsure, for whatever reason, that the confession is true, then you must disregard it. If you are sure it is true, then you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances."

27. This court has, subsequent to the hearing of this application, made it clear that this is not a formula which should be used. If a confession is made as a result of oppression or other improper circumstances then the jury should be specifically directed that if they found those allegations to be true, or if they were unsure as to whether they were true or not, then they would be perfectly justified in placing no weight upon the statement at all.

28. We would add at this point, before considering the grounds of appeal advanced to us by Mr. Buchanan, that we deprecate prosecuting counsel asking questions as to the percentage sureness of an identifying witness. This serves no useful purpose. Either the Crown have an identification upon which they are prepared to rely, by itself or allied with other evidence, or they have not. Percentage questions can only tend to mislead.

29. No complaint is made of the generality of the trial judge's directions but Mr. Buchanan, in relation to what he described as the unreliable identification evidence, submits that the trial judge was under a duty first: to direct the jury that the identification evidence was insufficient and unsatisfactory and second, that no weight should be attached to it. The judge's failure to give both of those directions must, says Mr. Buchanan, have left the jury with the impression that some weight should be given to the identification evidence and therefore the non-direction was unfair and, as he put it, detrimental to the applicant. Further, the trial judge should have directed the jury that an identifying witness was either sure or not sure of his identification.

30. His second and third grounds are interrelated with his first. It is his submission that, in this case, the judge should have directed the jury that in their assessment of the truth of the cautioned statements "no relevance should be placed on the issue of identification". He drew our attention to the question asked by the jury after they had retired which is set out at page 50 of the transcript as follows:

"If one believes the confession was coming out of the defendant's own mind and based only on the statement wrote up on August 23 1991 (P 18), can one make a judgment on the verdict - guilty/not guilty?"

31. Having brought this question to the attention of counsel and heard their submissions upon it, and having indicated to counsel the form of redirection he should give and heard their comments upon that, the judge told the jury that the first thing they had to decide was: did that which the defendant wrote in it, that is P 18, come from his own mind. If they were sure upon the evidence that it did come from his own mind, then they had to consider whether what he wrote was true. If they were unsure for whatever reason that the statement was true, then they should disregard it. He then went on to say at page 52C:

"If, on the other hand, you are sure on the evidence that the statement is true, then you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances. If you decide that you can rely on the statement, you must weigh it together with all the other evidence which it is for you as the judges of fact to accept or reject and then decide whether on the evidence you are sure that the defendant is guilty or not guilty of the count which you are considering. If you are sure that he is guilty on the count you are considering, you will convict him on that count. If you are not sure, you will acquit him."

32. That the judge made it abundantly clear to the jury that the identification evidence was Insufficient and was unsatisfactory is made very clear from the summing up. The jury knew, for they were so specifically told, that the Crown was not relying on identification evidence alone.

33. We do not accept that he should have gone on to direct them that no weight at all should be attached to the identifications. It was for a properly directed jury to consider the whole of the evidence in the case. And the whole of that evidence covered that which was said in the cautioned statement and the identifications. It was for the jury what, if any, weight they should place on the identification evidence and, we repeat, they were fully and adequately warned as to the nature of that evidence. Again, it was entirely for the jury to consider the contents of the cautioned statement and whether they accepted the admissions which, on the face of it, appeared in that statement in the light of the evidence as to the circumstances in which that statement was made. It was not for the trial judge to direct the jury that they should view that statement, which opened with the words: "as I have been picked out ...", in isolation from the rest of the evidence.

34. If the jury thought that what the applicant had said was true, then that went to reinforce the correctness of the identifications that were made. We repeat that the jury could have been left under no illusion that, without that statement, the identifications were insufficient.

35. For these reasons, we refused leave to appeal against conviction.

Sentence

36. It was Mr. Buchanan's submission first that the totality of the sentence imposed - 16 years for these two groups of related offences - was manifestly excessive and that in each set the starting point was too high. Further, that the firearm was an imitation one incapable of being discharged.

37. He has drawn our attention to a number of appeals in which sentences for robberies of a generally similar nature were considered. As this court has indicated on many occasions, each case depends upon its own facts and it is only guideline cases such as Mo Kwong Sang, they are of any real assistance when considering applications for leave to appeal against sentence. However, one of them R. v. Poon Ping Keung, Criminal Appeal 426 of 1989 (unreported) has some relevance to the totality of the sentence passed here. There the applicant was convicted on his own plea of 11 attempted robberies, 9 robberies, attempting to cause an explosion and possessing an explosive. The applicant had robbed a number of banks by stating he possessed a bomb and, on one occasion, actually caused an explosion. He received a total sentence of 16 years' imprisonment.

38. We are conscious the sentences imposed here were sentences imposed after trial. The judge, and properly, considered the two sets of sentence should be consecutive but bore in mind totality. He thought the sentence on the first count should be 12 years' imprisonment - the sentence which he imposed - and the sentence on the third count - which was an actual robbery as opposed to an attempted one - to be 13 years. These sentences took into account the use of the imitation firearm. That would have given a totality, if they had been made fully consecutive of 25 years, a totality which the trial judge, and indeed ourselves, would have been thought to be far too high. In this case, we would not quarrel with that method of approach.

39. These were very amateurish offences. Nevertheless, the presentation of a gun, whether it be real or imitation is, of itself, a very frightening thing for the person threatened. But we considered that the overall totality was too high relative to the nature of the offences and the nature of the offender. A totality of 12 years' imprisonment was, we thought, sufficient in the interests of justice, which of course includes the interests of the public, to mark the criminality involved here.

40. We therefore gave leave, treated the hearing of the application as the hearing of the appeal and allowed the appeal. We set aside the sentence on count 1 and imposed a sentence of 10 years' imprisonment and set aside the sentence of 13 years on count 3 imposing a sentence of 12 years' imprisonment. We directed that these sentences run concurrently with the sentences on counts 2 and 4 remaining the same but also running concurrently with the other sentences. The effect of this was to give a total sentence of 12 years' imprisonment.