The Queen v. Eduardo Concha and Others

CACC000343/1985

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Fuad & Kempster, JJ.A.

Date of Hearing: 11th April 1986

Date of Judgment: 18th April 1986

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. These are applications for leave to appeal against convictions for unlawful possession of firearms and ammunition and for "conspiracy to rob". The main issue before us - and it affects all the Applicants is whether there was prima facie evidence of the alleged conspiracy to justify putting the Applicants to their defence. At the trial the committal was challenged under s.16(1) of the Criminal Procedure Ordinance and a ground of appeal was advanced to the effect that the evidence before the magistrate did not justify indictment. It has been accepted before us that it is now too late to complain of the committal and that any deficiency in the evidence on committal could have been remedied at the trial we are concerned with the state of the evidence at the close of the prosecution case.

2. That evidence was as follows. The seven Defendants were Filipinos. They all came to Hong Kong on 28th November 1984 by air. They travelled in two parties on different flights. The members of each group sat together on the aircraft. They held passports which.were all issued on the same day and had airline tickets most of which had approximately sequential numbers. The 6th and 7th Defendants were searched in the customs hall at Kai Tak and each was found to be carrying a loaded revolver. They were detained. The other Defendants were arrested five days later in a police raid on a room at the Aston Hotel in Kowloon. The 1st Defendant was stopped as he left the room with his baggage. The 3rd and 4th Defendants were found in the bedroom, together with (i) a knife, (ii) masking tape, (iii) a ball of string, (iv) 10' 6" lengths of string with the ends knotted together, the lengths folded to form skeins each bound with a piece of newspaper, (v) a quantity of valium ready mixed in solution in a glass and (vi) a bottle of nail varnish. The 2nd and 5th Defendants were found in the bathroom: the 5th Defendant was standing, fully clothed, in the bath and at his feet was a loaded revolver wrapped in a handkerchief: the 2nd Defendant was standing by the water closet, in which was a second knife Also in the bathroom were more masking tape and similar, cut lengths of string. The two knives had been bought that morning. Luggage belonging to all those Defendants in the room was also found in the room. The 1st Defendant had registered as the occupant of the room for use by himself and the 4th Defendant. Medical tests showed that the 1st Defendant had consumed some valium. The 4th Defendant made a statement to the police, but it contained no material admissions. Some of the defendants had reservations on a flight scheduled to leave Hong Kong that evening.

3. It is conceded that there was prima facie evidence of a criminal conspiracy, but the contention is that there was no evidence that that conspiracy was one to rob rather than to commit some other unlawful act. Mr. Westbrook submits that the intention to rob was an essential element of the offence (TSANG Ping-nam v Rig (1982) 74 Crim. App. R. 139) and that it therefore had to be proved beyond all reasonable doubt KWAN ping-bong v Reg.(1979) H.K.L.R. 1). He emphasizes that so to hold would not prevent the Crown in similar circumstances from bringing charges under s. 18 of the Firearms and Ammunition Ordinance of carrying arms with criminal intent.

4. The submission of Mr. Egan for the Crown is that the evidence was such that it was open to the jury to infer (as it must have done) that the intention of the Defendants was to commit a robbery. He relies especially on the pieces of string and the masking tape, which, he suggests, were intended to immobilize and silence anyone who sought to prevent the removal of the goods to be stolen: those exhibits were inconsistent with,for example, a conspiracy to murder, to kidnap or to inflict grievous bodily harm. In the ccurt below counsel for the Crown described some of the exhibits as "a robber's kit". In the end we think Mr. Egan was forced to argue that, in the circumstances prevailing in Hong Kong, it was so much more probable that the intention was to rob than that it was to commit any other violent crime that all other possibilities could properly be ignored and, indeed, that to find any other intention would be perverse. The short question for us is whether that is a permissible approach. This is a different issue from that which was before the Privy Council in TSANG Ping-nam v. Reg. which was not a case where it was suggested that. a person had from the beginning attempted to pervert the course of just ice by giving contradictory evidence but where he was alleged to have done so either by giving false information to the police or by committing perjury at the trial. The issue is not one which is capable of elaborate argument and we say only that it would be flying in the face of reality to hold that it was not open to a jury on the evidence to conclude that robbery was the purpose of the conspiracy. The decision was properly left to the jury.

5. Then it is submitted that the judge did not sufficiently warn the jury that it was not enough that it should be satisfied as to the existence of an unlawful conspiracy but that it must be satisfied that any such conspiracy was in fact one to rob. We think that upon the whole of the Summing up the jury could have been left in no doubt on this point.

6. A more formidable contention is advanced on behalf of the 2nd and 5th Defendants in relation to the charges under s. 13 of the Firearms and Ammunition Ordinance. The relevant part of s.24(1) reads:

shall, until the contrary is proved, be presumed to have had such arms or ammunition in his possession for the purposes of section 13 ...".

The question, therefore, was whether it was proved beyond all reasonable doubt that these defendants were in charge or control of the premises where the gun was found, whether such "premises" were the hotel room generally or the bedroom in particular. The judge said:

"I told, you a few moments earlier. that there are, some preliminary findings of fact. These must be considered first before you decide whether to apply the presumption. In respect of Avendano and Fuentes, if you come to a finding of fact that either or both were in the bath room at the time of their arrest - and you may not find too much difficulty in making that finding - then you are entitled to apply the presumptions to both of them."

With respect to the judge, presence in the room is a very different thing from charge or control of the room. Mr. Egan concedes that this was a misdirection, but he invites us to apply the proviso: he points out that, although the 1st Defendant, as the registered guest, was technically in control, he must have taken the room in pursuance of the conspiracy and all the conspirators were in reality equally in control. (The contrary was not argued on behalf of the other Defendants). Be that as it may, the suggestion that mere presence in the bathroom was enough was clearly a misdirection. However, in all the circumstances, although the Crown did rely on the presumption, it was not necessary to do so a jury properly directed as to joint possession would unquestionably have concluded that all the material exhibits in the room (including the gun-and ammunition) were in the joint possession of all those Defendants who were at the Astor Hotel, whether or not a particular Defendant was in fact so charged. We therefore apply the proviso in respect of this misdirection.

7. Finally, it was contended on behalf of all the Defendants that the judge misdirected the jury when he said:

"It is entirely up to you, members of the jury, whether you consider those charges in numerical order, one, two, three, or whether you consider the conspiracy charge first ahead of the possession of fire arms and ammunition charges.

Whichever way you do it, if you come to a finding of guilt against one or other of the accused on one count, you are entitled to use that finding as a factor, a factor, in considering the other count or counts. Note I say 'a factor'. By no means should you interpret me to say that a conviction on possession leads to a conviction on conspiracy or vice versa. It is simply one of the factors which you may use in evaluating a he evidence on the other charge."

Counsel submit that, although this might be a proper direction in a case where all the charges had to be proved without the assistance of any presumption, it was misleading where, as here, some element of one of the charges was presumed: if any of these Defendants who was not proved to have known of the presence of the gun in the hotel room were unable to displace the presumption that he was, nevertheless, in possession of it, his consequential conviction on the arms charge would, on the direction given, then be regarded by the jury as a factor to be considered on the conspiracy charge, in respect of which no presumption was applicable. This is an interesting submission, which, in view of the decision we have reached on joint possession it is not necessary for us to consider further: this case then ceases to be a case where the knowledge of the presence of the gun and ammunition was presumed and not strictly proved.

(After further argument)

8. We come now to the applications for leave to appeal against sentences. All these Applicants were sentenced to ten years imprisonment for the conspiracy and we will deal first with these sentences.

9. In our view the sentences of ten years imprisonment were proper. This was a combination of no less than seven men, armed with no less than three loaded firearms. It was a planned incursion from abroad into Hong Kong with the intention of disturbing the queen's peace. These were not young, inexperienced men: they were all mature, being aged from 34 to 44 years. The maximum sentence for this particular offence was fourteen years imprisonment and we think that ten years was a proper sentence in all the circumstances.

10. For possession of arms and ammunition five of these Applicants were sentenced to eight years imprisonment. The 4th Defendant was sentenced to six years imprisonment: the distinction was made by the judge on the basis of his plea of Guilty. When he passed sentence, the judge did not in the first instance pass any sentence on the 6th and 7th Defendants for these offences. This was pointed out to him and on the spur of the moment he may have overlooked their pleas of Guilty, although we appreciate that he had earlier said that their pleas were "an entirely negative virtue", since they were caught completely red handed. Be that as it may, by pleading Guilty the 6th and 7th Defendants did save the time of the court

11. Another Defendant who has not appealed was given seven years imprisonment on the firearms and ammunition counts after a trial. We think that that was a proper sentence and, therefore, that the sentences on the 1st, 2nd and 5th Defendants should be reduced to seven years' imprisonment. The sentences on the 6th and 7th Defendants, who pleaded Guilty to these offences, should be reduced to six years' imprisonment.

12. We add, however, that it would have been in accordance with principle that consecutive sentences should have been passed. Had that been done it would, of course, have been necessary to consider the totality, but the Applicants may have been fortunate that concurrent sentences were passed.

18th April 1986

Representation:

K.B. Egan for Crown.

S. Westbrook for 1st, 5th & 7th Defendants.

R. Murray for 2nd, 4th & 6th Defendant