So Ying Chi And Others v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 326 OF 1968

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JUDGMENT

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1. These are appeals against six convictions out of eight charges.

2. The trial in the court below involved six charges for robbery with aggravation, one (the 2nd charge) for demanding with menaces and one (the 8th charge) for assault with intent to rob. All the accused were not involved in each of the charges; one charge of robbery with aggravation (the 7th charge) and the charge of assault with intent to rob were laid against the 2nd and 3rd appellants only.

3. The 1st charge arose out of allegations that the appellants, who had lost their employment as mill workers at the Nam Fung. Factory in February 1968, blamed a newly appointed supervisor at that factory, the first complainant, Shum Kei-tat, and forced him to pay them money as a result; waylaying him outside his apartment for this purpose and making threats of injuries to himself and to his family if he failed to pay. The 2nd charge dealt with a later incident, on the 17th March, when the appellants were alleged to have got on to a motor vehicle with Shum Kei-tat after he had finished the night shift at 7.20 a.m., dismounted when he did and demanded further money from him. Following their threats they required him to bring the money to them at the Peninsula Cafe the following day. He said he went there and tried to explain that he could not pay further money but, in the words of the trial judge, was saved from a difficult situation by the appearance of two detectives in the Cafe whose arrival gave the complainant, Shum Kei-tat, an opportunity to leave the Cafe of which he took advantage.

4. The 3rd and 4th charges dealt with two further incidents when the appellants allegedly obtained additional sums from Shum Kei-tat by threats.

5. The 5th and 6th charges related to incidents in which another supervisor at the Nam Fung Textiles Factory, Yeung Hiu-cho, claimed that he was similarly intimidated and made to part with money to the appellants.

6. The 7th charge related to a supervisor, Chan Ka-on, in another factory, the Tai Hing Textiles, where all the appellants had worked two years previously. He also claimed that he had been waylaid outside his apartment, similarly blamed for the appellants' loss of their employment there, and beaten by the 2nd and 3rd appellants together with another man not before the courts and robbed of his watch.

7. The 8th charge related to an attack on a worker in the Personnel Section of the Tai Hing Textiles, who said that he was accosted by the 2nd and 3rd appellants when approaching his home and similarly blamed, and that in the course of the struggle a hand was placed in his pocket but he put up resistance and when members of his family turned out he escaped.

8. All three appellants were acquitted on the 2nd and 4th charges but verdicts of guilty were found on the remaining charges with the exception of the 8th charge, where the judge was not satisfied of an attempt to rob but found the 2nd and 3rd appellants guilty of the lesser offence of common assault. The 1st appellant received 2 years concurrent on four charges of robbery, the 2nd appellant also received 2 years concurrent on the same four charges of robbery and 3 years on the 7th count, also concurrent, as well as 6 months on the assault charge, also concurrent. The 3rd appellant received a similar sentence.

9. Up to the 8th day of August, all the appellants were represented by the same counsel and solicitors but on that day, as there appeared to be some possibility of a conflict of interest between the 2nd and 3rd appellants, additional counsel and solicitors were assigned for the latter.

10. On the 7th August, 5 days before the date fixed for the hearing of the appeal the solicitors then representing the 2nd and 3rd appellants gave notice that it was their intention to call fresh evidence to prove that their clients, the 2nd and 3rd appellants, were absent on the occasion of the incidents which formed the basis of the 7th and 8th charges, and which were alleged to have taken place on the 6th April and the 15th March respectively. No particulars of the evidence were given.

11. At the commencement of the hearing on the 12th August, counsel for the 2nd appellant asked for an adjournment on the grounds that his solicitor had been unable to make contact with the witnesses whom it was proposed to call. Counsel for the 3rd appellant did not seek an adjournment or to pursue the application relating to further evidence. No affidavits were filed to show what efforts had been made to contact the witnesses in question or to indicate the grounds on which it was thought that they would give evidence which would be cogent and material to the question at issue in the court below.

12. Counsel made a brief statement from the Bar about the steps taken to contact the witnesses but was apparently not in a position to give any indication of the substance of the evidence which these witnesses might be expected to give. He rested his application for an adjournment and leave to call additional evidence primarily on the ground that his client had not been represented at the trial and did not understand the procedure about calling witnesses.

13. The record of the proceedings in the court below shows that, at the conclusion of the evidence for the prosecution, the judge explained to the accused their right to make a statement from the dock or to give evidence themselves and their right to call witnesses. If, in fact, the 2nd and 3rd appellants wished to contend that they were not present at the scene of the crimes which formed the subject matter of the 7th and 8th charges, and that there were witnesses who could support that contention, we saw no reason why they should not have told the judge at the...