CHEUNG CHUN YU AND OTHERS v. THE QUEEN

CACC000412/1973

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 412 OF 1973

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BETWEEN
	(1) CHEUNG CHUN YU	Appellants
	(2) LAI HO KUEN
	(3) YEUNG CHEONG WAH
	and
	THE QUEEN	Respondent

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 14th December 1973.

 

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JUDGMENT

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Huggins, J.:

1. We are concerned at this moment with the appeals against sentence of the first and second Appellants only. They, together with the third Appellant who appeals against conviction, were indicted for robbery.

2. A van of a security company was delivering money for the payment of wages. It stopped outside a factory and the money was being conveyed into the factory and up in a lift. There were four members of the staff of the security company present, including the driver: one of them had a shot-gun. The three men, including the first and second Appellants, suddenly entered the lift and while it was in motion they attacked the people inside. One of them grabbed the neck of the man with the shot-gun, another pointed a knife at the security men and took the cash box in which the money was kept. The money was removed from the cash box and put into a briefcase and the three men then made their escape. There was a chase but they were not caught at that time.

3. The learned judge passed sentences of ten years' imprisonment on each of these two Appellants. They are respectively, aged 29 and 23. They apparently have no previous criminal records but the probation officer's reports are far from promising. The first Appellant had been in and out of jobs and he told the probation officer that he had done nothing wrong. The second Appellant appears to have been gambling and generally was a thriftless person. They have emphasised that they have been in custody for approximately twelve months, this offence having been committed in September of 1972 and they having apparently been arrested some time later. The trial began on 24th April. However, periods spent in custody dealt with by s.67A of the Criminal Procedure Ordinance and the period after committal for trial is allowed for: no order of this court is necessary.

4. This was obviously a planned and very determined robbery - a robbery of a kind which affects many workers - and we see no reason to think that these sentences were in any way excessive.

5. The applications of the first and second Appellants are dismissed.

13th December 1973.

6. Having yesterday dealt with the applications of the first two Appellants for leave to appeal against sentence, we now come to the application of the third Appellant for leave to appeal against conviction. He has conceded that if the two statements he is alleged to have been made were correctly admitted in evidence they were conclusive, and there can be no possible doubt that they were sufficient evidence which, if believed by the jury, justified conviction.

7. There were two statements: one was a cautioned statement given to the police and one a formal answer to the charge. Counsel appearing for this Appellant objected to the admission of both of them, and the objection was to this effect, that as to the cautioned statement this Appellant was threatened and physically assaulted by Detective Police Constable 5200 and as to the answer to the charge he was scolded by the inspector who was taking the statement and was asked to write what he had been previously told to write. As we shall see, the evidence which the third Appellant gave did not entirely correspond with the objection taken.

8. The case which was put to the police witnesses, and denied by them, and which was then given in evidence by the Appellant was that at the time of his arrest he was seized by the police and handcuff to another man; that he was asked whether he admitted the robbery and when he denied it he was kicked once on the right-hand side of his body; that he was taken first to the Hung Hom Police Station, where the officer said:

"Right, little brother, you are not admitting, but when we have taken you back to the Police Station, when we have taken you back to our Police Station, it would not be possible for you to deny it."

that he was taken to the toilet at the Kwun Tong Police Station; one hand was twisted round his back and his head was pressed down into a basin of water; that subsequently it was said to him:

"Little brother, if you persist in denying we have something more to show you",

after which he was handed a notebook and a ball-pen and he wrote at the dictation of the officer. As to the answer to the charge he said he was told that he was being taken to the inspector and that it was a matter of formality: he was asked if he still remembered what he had written the other day, and he took that to mean that he was to write the same thing: while he was in with Inspector Chu another officer came into the room and mumbled to him "You remember what you wrote the other day - just write this down and this will be all right". The third Appellant asserts that the charge was never read to him and that he was never cautioned: all that Inspector Chu said to him was "Real Mainland Pig".

9. The learned judge, having heard the evidence, had a very firm impression as to what his decision was to be, nevertheless he wished for an opportunity to read through the evidence which had been given and he adjourned from 1.10 p.m. on Friday to Monday morning. He then gave his ruling in which he said he had not the least hesitation in holding for the admissibility of both statements. He was "satisfied, absolutely satisfied" as to the truth and reliability of the witnesses for the prosecution.

10. In our view, that was sufficient. The learned judge had evidence which he was entitled to believe. We see no reason to say that his decision was wrong.

11. We have observed that subsequently the jury returned a verdict of 5 to 2 in favour of conviction. That would suggest that at least two of the jurors were in doubt as to the voluntariness of these statements: there would seem to be no other reason why they should doubt the truth of the statement other than that they were not voluntary and the statements, as we have said, were clear confessions. We have considered whether we ought to hold that, having regard to the doubts of these two jurors, the verdict was unsafe. However, we do not think that this comes anywhere near fulfilling the requirements laid down in Reg. v. Cooper 1969 1 Q.B. 267. We ourselves have no doubt about the correctness of the jury verdict.

12. This application for leave to appeal against conviction is dismissed.

 

14th December 1973.

 

Representation: