The Queen v. Cheung Tsz Keung and Others

HCMP000004/1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Bewley, J. in Court.

Date of hearing: 1st October 1992

Date of delivery of judgment: 19th October 1992

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J U D G M E N T

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1. This is an application for discharge under seqtion 16 of the ;Criminal Procedure Ordinance on the grounds that the evidence is insufficient to establish a prima facie case against the applicant.

2. On 11th July 1991 the Republic National Bank of New York (HK Office) requested Guardforce Ltd to deliver cash USS17 million and HK$35 million to Hong Kong Airport for delivery to Taiwan. The cash had been deposited in the strongroom in Guardforce Headquarters, Kowloon. Guardforce Car No.15 was assigned to make the delivery

3. On the morning of 12th July Mr YIU Chun-keung, Crew Commander of Car No.15, collected the cash, which was contained in white canvas bags, and loaded it onto Car No.15 assisted by the other crew members The vehicle left for the airpora shortly after 8.00 am and arrived at the Hong Kong Air Cargo Terminal Ltd. (HACTL) at about 8.25 am. On arrival a crew member alighted from the vehicle to collect an entry permit to the secure area. While he was doing this, Car No. 15 was driven to the HACTL Administration Building where it was parked. Another crew member opened the door intending to alight, when suddenly three men forced their way into the vehicle. Two of the men were armed with pistols. One of the culprits occupied the driver's seat and the crew was bundled into the rear of the van where the money was contained. The crew was then tied up and blindfolded.. The vehicle was driven to a construction site on Kwun Tong Road South. There the culprits transferred all the cash to a white van which they, then boarded and drove away towards Mongkok

4. One of the alleged robbers (the lst defendant) has been identified at a parade by one of the security guards. He is the man with whom the applicant was living at the time of the robbery and the father of her child. It is alleged that the applicant, who was an employee of Guardforce, passed information about the delivery of the money to the lst defendant, which enabled the culprits to plan and execute the robbery.

5. The applicant  joined Guardforce on 17th December 1990. On 5th January 1991 she successfully applied for transfer to the Security Transport Section, which was the heart of security operations concerning the movement of cash. This is the only place where all the information-concerning vehicles, destinations times and amounts of cash is encapsulated.

6. In May she was on maternity leave after the birth of the child but she returned to work on 21st June. She gave notice at the end of July saying she had to look after the baby. On 29th August she did not appear for work. The applicant was arrested, together with the lst defendant on 10th September when the police broke into their flat after they had refused to open the door

7. The applicant, the 1st defendant and his mother operated a joint bank account at the wing, Lung Bank On 1st   July 1991 this account was overdrawn by $507,081. Between ₂2nd July and. 16th August 11 cash deposits totalling over $600,000 were made in sums of $30,000 to $120,000. The depositor was not identified except that on five occasions it was a man

8. In 1987 the same three persons obtained a mortgage loan of $1.4 million to buy a flat. Up to August 1991 only the monthly interest had been paid. On 5th and 6th September the applicant deposited $370,000 in $1,000 notes in reduction of the loan.

9. On 12th September $250,000 in $1,000 notes was found hidden behind an aquarium in the house of the applicant's parents, together with three bank deposit slips in the 1st defendant's name. There is no evidence as to how the money came to be there.

10. Finally in the applicant's handbag on her arrest the police found $71,000, of which $60,000 was in $1,000 notes.

11. Returning now to 11th July, the day before the robbery, the HK$35 million, in $1,000 and $100.notes, was transported from HSBC to the Guardforce vault by company security staff. The US dollar notes had earlier been flown from USA to Hong Kong. At 4.30 pm that day a clerk of the Hong Kong Branch of the Republic National Bank contacted the Guardforce Control Room and ordered a security van and escort to take cash to the airport before 8 am next day. The amount was not specified Guardforce decided that Car No.15 and Car No.33 would be used and the crews of these were notified that afternoon by radio messages from the Control Room.

12. The airway bill and instructions were delivered by the bank to the Guardforce Control Room at 9.30 pm hat evening The significance of is hat the applicant was one of three staff members on duty in the Control Room at that time; she left at 11 pm These documents were deposited in a tray and could have been examined by anyone present. They were passed to the escort commander next morning. Although it was known to many persons in the bank and in Guardforce that a security van was leaving for the airport early on 12th July and it was common knowledge that these vans seldom carried less than HK$10 million, only those privy to these documents would have known that this particular trip involved such a vast amount of cash.

13. The principles to be applied were stated by Kempster JA in Attornev General v. LI Fook-shiu Ronald CA No.3/90 at page 16:-

"If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of 'no case' or an application for discharge in circumstances where the Crown's case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:-

(1)     Is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;

(2) Is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3)     Could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If he concludes that a jury could, may or might so be satisfied he will rule against the submission or application."

14. Mr. Plowman submits that, on these facts, more than one inference may be drawn by the jury and that those inferences are equally consistent with innocence as with guilt He points out, in particular, that there is no evidence that the applicant passed information to anyone. He also submits that the evidence of the bank deposits and the finding of the large sums in $1^,000 denominations do, not assist the Crown because it is a reasonable inference from these matters that the applicant came to know about the robbery only after it had occurred. If she was living with one of the robbers it is not surprising that she was willing to dispose of the proceeds. It is not a necessary inference from her behaviour after the robbery that the applicant knew about it beforehand. There is force in this argument

15. Mr. Cahill, however, says it is important to look at the evidence as a whole He concedes that the individual aspects of the evidence are not capable of raising an irresistible inference of guilt. I agree that this is the right approach and, bearing this in mind, I come to the following conclusions The robbers were undoubtedly tipped off by someone. That person was either an employee of the Republic National Bank of New York or of Guardforce On that basis the applicant is one of perhaps several dozen suspects.

16. What narrows the field is the size of the consignment and the fact that thia information was availableto very few people including the applicant. This was an exceptionally large sum of money and it would be a remarkable coincidence if the robbers just "got lucky" as Mr. Plowman would have it. In these circumstances a jury is bound to look closely at the applicant's request for transfer to the Control Room so soon after her arrival at Guardforce

17. There may be an innocent explanation for this move she may have been looking for a more interesting job Nevertheless it becomes highly significant when seen in the light of her association with a man later identified as one of the robbers It also gave her the opportunity to identify an above average cash consignment such as this one. If she did give the information to the 1st defendant that night, it is true that the robbers had only a few hours in which to execute the operation. But, in the circumstances, their plans must clearly have been in place; they would have been waiting only for the signal to go

18. The inference that the jury may draw from this evidence - in the absence of explanation - is that the applicant joined Guardforce with the intention of installing herself at the hub of the operation. From there it would be open to the jury to draw the further inference - the neutral nature of the post-robbery evidence notwithstanding that she was the person who provided the vital tip-off

19. It is in my opinion essentially a jury matter. Theevidence is sufficient to support a conviction, depending on y the jury's findings on the primary facts. Whether they draw an inference of guilt is a matter for the jury.

20. The application is refused.

Representation:

Mr.P Cahill, SACP, for Crown.

Mr Plowman, instructed by Drivers, for the Applicant Law Yim Fong.