R. v. Chan Lap Man, Raymond and Others
Read the full judgment text of on BabelCite. was delivered on 4 November 1996.
1. This is another legal battle in this case. The remaining three defendants are charged jointly with a conspiracy to commit robbery. The particulars of offence are as follows:
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HCCC000373C/1995 1995, Nos. 372 and 373 ------------------- H E A D N O T E ------------------- Joint charge of a single conspiracy against 3 defendants -- only evidence of the conspiracy as charged against each of the 3 defendants being his own admission in a cautioned statement -- no evidence to link that the conspiracy admitted by a defendant with the conspiracy admitted by any other defendant's cautioned statement -- no case to go to the jury against any one defendant on the joint charge Held : (1) In the normal circumstances, a cautioned statement made by a defendant in the absence of another defendant cannot be evidence of the truth of its contents against the other defendant. (2) Comparing the contents of a defendant's cautioned statement with the contents of another defendant's cautioned statement for drawing inference that the conspiracy mentioned in each of the cautioned statements is one and the same conspiracy is to use a defendant's cautioned statement as evidence against another defendant who is not the maker, and that cannot be allowed. (3) Even though there is evidence of a conspiracy as charged against each one of the three defendants to go to the jury based on the cautioned statement correspondingly made by each one of them, because of the absence of admissible evidence that the conspiracy referred to in any one defendant's cautioned statement is the same as that referred to in any other defendant's cautioned statement, no case should be left to go before the jury against any one defendant regarding the joint charge that the three defendants were involved in the same conspiracy. 1995, Nos. 372 and 373 IN THE HIGH COURT OF HONG KONG CRIMINAL JURISDICTION ---------------
--------------- Coram : Hon. Woo, J. in Court Date of hearing : 1 November 1996 Date of delivery of ruling : 4 November 1996 ------------- R U L I N G ------------- 1. This is another legal battle in this case. The remaining three defendants are charged jointly with a conspiracy to commit robbery. The particulars of offence are as follows:
2. After the close of the prosecution's case, counsel for the three defendants submitted that there was no case to answer in respect of each of the defendants. Their grounds can be summarised as follows :
3. Miss Millar for the prosecution did not proffer any argument on the second ground, for it has been the Crown's case right from the start that the three defendants were involved in a common enterprise, one and the same conspiracy, to commit the same robbery. 4. The prosecution called altogether fourteen witnesses. Ten of the witnesses are police officers who were involved in the taking of the records of interviews of the three defendants under caution. These records of interviews contain admissions and were produced in evidence. Three medical officers of the Laichikok Reception Centre were also called to tell the court about the defendants' physical conditions at the time of their admission to the Reception Centre and whether they had lodged any complaint with the doctors. All the testimony relates to the circumstances under which the records of interviews were made. Only one civilian witness was called, an assistant manager of the air-freight department of ASG (HK) Ltd. ("ASG"), who mainly told the court about the security system of the company and its addresses, namely, before January 1995 at 8th floor, Sunshine Cargo Centre, Kowloon Bay and thereafter at the 3rd floor of the same building. It is therefore clear that the only evidence of any conspiracy against D1 is his own admission in the record of interview, exhibit P24, that against D2 his own admission in exhibit P37, and that against D3 his own admission in exhibit P40. 5. The exhibits were edited by agreement amongst counsel so that all references to a substantive offence of robbery and almost all the names of the conspirators are obliterated. 6. In exhibit P24, D1 described a conspiracy to rob a batch of mobile telephones from either the 3rd floor or the 8th floor of Sunshine Cargo Centre in Kowloon Bay that was originated by a person who approached him before Christmas 1994. He gave some details as to what was done and to be done by the conspirators in carrying out the object, and mentioned that a person in Sunshine would provide them with information relating to the place to be robbed. 7. In exhibit P37, D2 told the police that his only involvement in a conspiracy to rob ASG of a batch of Ericsson telephones was to provide information about the company to a person to facilitate a robbery. He was approached by a person at the end of September 1994, but he only agreed to participate in January 1995 when he provided the person with a sketch showing the layout of ASG and the positions of the close circuit televisions installed thereat. 8. In exhibit P40, D3 said that before Christmas 1994, he promised a person to rob telephones in Kowloon Bay. 9. As the charge on the indictment is a conspiracy to rob, there must be sufficient evidence to go before the jury against D1 on his own admission in exhibit P24. The same applies to D2 based on exhibit P37 and to D3 on exhibit P40. However, that is not the end of the matter. The charge on the indictment is a single conspiracy to which all three defendants were parties. What the prosecution need prove is that D1, D2 and D3 and other persons were involved in the same conspiracy to rob or, in Miss Millar's words, in the same common enterprise. 10. The indictment contains only one count against all three defendants. Archbold 1996, Vol. 2, para. 33-16 deals with the point succinctly :
11. In Griffiths & Others v. R. (1965) 49 Cr App R 279, 290, Paull, J., delivering the judgment of the Court, dealt with a single conspiracy thus :
12. The charge on the indictment against all three defendants is a very broad one, simply that they conspired together and with other persons to commit robbery. The target of the planned robbery is not stated, the things to be robbed not described, and the nature of the robbery not disclosed. It includes every sort of conspiracy to rob, and the conspiracy admitted in the cautioned statement of each of the defendants is encompassed. As Mr Iu pointed out, the charge includes any conspiracy to rob under the sun, including one to mug a taxi driver or to waylay an old lady. 13. If there is a separate charge against each of the three defendants, on the evidence of his own admission, he can be convicted. However, even though there is sufficient evidence to go before the jury that each of the defendants was involved in a conspiracy as charged, there must be evidence to link the conspiracy alluded to in each of the defendant's own statement with that referred to in another defendant's. Using Mr Iu's examples for demonstration, if A admits in a cautioned statement that he conspired with some persons to rob a bank, B admits under caution that he conspired with some persons to mug a taxi driver, and C made a confessional statement that he conspired with a person to waylay an old lady, there is sufficient evidence to go to the jury as to whether each is guilty of the conspiracy as that shown on the indictment. Nonetheless, it is essential that there must also be evidence to show that the conspiracy referred to in each of the statements is the same conspiracy in which A, B and C joined. 14. It is well settled law that a statement made outside court by an accused which inculpates a co-accused is not evidence against the co-accused unless he expressly or by clear implication adopts the statement. See the authorities cited at para. V[1055] of Bruce & McCoy's Criminal Evidence in Hong Kong. In R. v. Rudd (1948) 32 Cr App R 138, 140, Humphreys, J. stated:
15. There are certain exceptions to this rule (see Mawaz Khan v. R. [1967] 1 AC 454, 463E-F), but it suffices for me to say that none of the exceptions applies to the instant case. 16. It is also well settled that a document created by one conspirator after the conspiracy has been completed or frustrated is inadmissible against another conspirator, and a statement made to the police under caution cannot ordinarily be regarded as an act or declaration in the course of a conspiracy. See Bruce & McCoy, para. V[1105]-[1150]. 17. The state of evidence in this case is such that there is evidence, based on the cautioned statements corresponding to D1, D2 and D3 individually, that each one of them was involved in a conspiracy to rob, within the period as set out in the indictment. However, exhibit P24 is the only evidence against D1 alone to point to his involvement in a conspiracy, as exhibit P37 points to D2 alone and exhibit P40 points to D3 alone. If one asks the question whether they were involved in a common enterprise or the same conspiracy, there is no other evidence than these exhibits. Whenever the word "same" or "common" is used, in the particular circumstances of this case, one is necessarily bound to compare the contents of the exhibits. The law I stated above and the rule against hearsay are clear that it is not allowed to use a cautioned statement of one defendant as evidence of the truth of its contents against any other defendant. Comparing one defendant's cautioned statement with that of another defendant will contravene all these principles, for the evidence or inference of sameness must be derived from the use of the contents of another defendant's cautioned statement against a defendant who is not the maker of that statement. 18. Look at the matter another way. If I hold that there is sufficient evidence of the offence charged to go to the jury regarding D1, purely based on exhibit P24, and I hold the same regarding D2 and D3 respectively based on their respective cautioned statements in exhibits P37 and P40, is there any proper basis for the jury to decide which one of the defendants is guilty of the conspiracy mentioned in the indictment? If they start with the conspiracy mentioned in D1's admission, and conclude that D1 is guilty of the conspiracy stated in the indictment, they will have to decide whether D2 joined in the same conspiracy, and also whether D3 joined in the same conspiracy. As there is no admissible evidence to link the conspiracy stated in D2's and D3's admissions with that in D1's admission, then the jury must acquit D2 and D3. Or should they not rather start the process with the conspiracy referred to in D2's cautioned statement first and then repeat the same rigmarole with D1 or D3's cautioned statement? Should they be allowed to find D1 guilty of the charge on the indictment but not D2 and D3? Or should they be allowed to find D2 guilty and not either D1 or D3? One will get into grave difficulties insofar as there is no evidence against all three that they were involved in one and the same conspiracy. On this analysis, there can be no proper or fair basis to leave the case to the jury because they, as properly directed, could not properly find any one of the defendants, but not any other, guilty of the offence as charged. 19. In the circumstances, I rule that there is no admissible evidence that D1, D2 and D3 were involved in the same conspiracy or in a common enterprise as charged, and that the case cannot properly be left to the jury against any one of the defendants regarding the joint charge that the three defendants were involved in the same conspiracy. Representation: Miss Millar, Crown Counsel, for the Prosecution. Mr Wong Po-wing, instructed by Messrs Yaddy Cheung & Co, assigned by DLA, for the 1st Defendant. Mr Thomas Iu, instructed by Messrs Bernard Wong & Co, assigned by DLA, for the 2nd Defendant. Miss Esther Toh, instructed by Messrs Pang, Tang, Wan & Choi, assigned by DLA, for the 3rd Defendant.
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