The Queen v. Tsang Hing-wo and Another

CACC000442/1984

IN THE COURT OF APPEAL

BETWEEN

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Coram: Roberts, C.J., McMullin, V.-P. & Silke, J.A.

Date of Hearing: 3rd and 4th January 1985

Date of.Judgment: 18th January 1985

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JUDGMENT

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Silke, J.A.:

1. On the 6th May 1982 a well planned and ruthlessly executed armed robbery took place at the Wing Hing Cheung Jade and Jewellery Company - "Wing Hing Cheung" - in Canton Road.

2. Some of the participants were tried previously. We are concerned with the trial of a further four men, three of whom were indicted for both murder and robbery and one, the 4th defendant, for robbery alone.

3. At trial the jury disagreed as to the involvement of D1 and the Judge ordered a retrial. They convicted the 2nd defendant, TSANG Hing-wo - "Wo Chai" - and the 3rd defendant - KWOK Ka - of murder and robbery. The 4th defendant was convicted of robbery on the basis of counselling and procuring.

4. Wo Chai and KWOK Ka now seek leave to appeal against their convictions.

Case for the Crown

5. The Crown's case was based mainly on the evidence of an admitted accomplice, LEUNG Chun Yee. LEUNG had participated fully in the robbery, admitted being a participant in earlier armed robberies and was a man with previous convictions. The necessity for corroboration of his evidence was emphatically drawn to the attention of the jury.

6. He said that a meeting had taken place, after a telephone call from one, CHEUNG Wai Yee,- who was convicted of murder and robbery in relation to the same incident - between himself and others at the Hong Kong Hotel. Present were CHEUNG and the 4th defendant. It was agreed that a robbery of the Wing Hing Cheung should take place and LEUNG was asked to recruit other persons to take part but he did not do so.

7. Another meeting took place at the Silver Palace Restaurant in Canton Road several days before the robbery. Present at that meeting, amongst others, were Wo Chai and KWOK Ka both of whom were casually known to LEUNG. The date of the robbery was arranged and a plan of campaign was come to. This included the carrying of guns. Nine persons were to be involved.

8. On the night before the robbery LEUNG went with CHEUNG and "the others" to the Wing Hing Cheung. CHEUNG told LEUNG what his duties were to be and further that he was on the morning of the robbery to go to Tai Kok Tsui to pick up Wo Chai, KWOK Ka and others.

9. On the 6th May LEUNG did pick them up and he brought them to a reservoir at Lok Fu. All nine persons were present. He positively identified the group as including the 1st defendant, Wo Chai and KWOK Ka. There was a stolen getaway van at the reservoir. The party got into that van and the six guns which were to be carried were distributed. One of those guns, exhibit P117, was identified by LEUNG as the gun which was given to Wo Chai. Forensic evidence showed that it was from this gun that the fatal shot was fired. KWOK Ka was not given a gun. In the van were baskets into which jade was to be put at the shop, masks to be worn by the robbers and a bottle of phosphorous which was to be used to deter pursuers.

10. CHEUNG told LEUNG that he had previously assigned their roles to each of the participants.

11. LEUNG was directed by CHEUNG to take the car he came in back to Tai Kok Tsui which he did. He was to meet the party at a steak house in Canton Road about one block away from their target. He arrived there first. The others came. It will be necessary to go back to this portion of LEUNG's evidence with particular reference to KWOK Ka in a moment, but to follow the sequence of events: the group left the steak house, and  went to the scene of the robbery, barriers were placed on the road to deter intervention and to prevent pursuit. LEUNG stood at one of those barriers brandishing a gun. Some of the party entered the shop with guns, some with baskets. All of the participants knew that the guns were loaded with live ammunition since instructions had been given at the reservoir as to how to load and fire the guns.

12. In the Wing Hing Cheung were several members of the TANG family who ran the business. It was Madam TANG Sau-ling's evidence that about 8 to 10 people entered. She purported to identify but one of them, the 1st defendant. Mr. TANG Kwong-ming put up resistance and struggled with one of the robbers thinking the guns they carried to be fakes. He was swiftly disabused of that idea when the robber fired a bullet into the ceiling. He was made to lie on the ground but, nothing daunted, continued his resistance ending up by throwing a stool at the back of one of the retreating robbers after the jade had been loaded into the baskets and was shot in the face, the bullet lodging in his jaw.

13. His brother, TANG Kwong-wah, chased after the robbers as they left the shop. When he emerged into the street he was shot at point-blank range by one of the robbers and died as a result of that wound.

14. In the course of the getaway several passers-by were intimidated. One was shot, a taxi-driver was shot and bullets were found in another car. The robbers escaped in the van.

Application of Wo Chai

15. At the hearing of this Appeal Mr. Keane, with him Mr. Mackay, appeared for both the applicants. He, very fairly and properly informed us that he could find no arguable grounds in respect of the convictions of Wo Chai. The evidence by LEUNG of the participation of Wo Chai in the robbery was corroborated by Wo Chai's confessional   statement and there was ample evidence before the jury for them to reach the conclusions they did. The summing-up in this respect was impeccable. Mr. Keane was permitted to withdraw and we heard Wo Chai in person on any point which he might wish to bring to our attention.

16. Nothing that Wo Chai said to us himself causes us to alter our view that his convictions were proper ones. His application for leave to appeal against conviction for murder and for robbery is dismissed.

Application of KWOK Ka

17. KWOK Ka, however, is in a somewhat different position. The Judge had very properly directed the jury on the basis that, if presence at the robbery were shown, then all those who participated, fixed with the knowledge of the carrying of the guns and of the possibility of their use, were also guilty of murder.

18. CHAN Wing-siu & Others v. The Queen⁽¹⁾, which upheld a decision of another Division of this Court, is authority for that proposition. There it was said:

"that all those who took part in an unlawful joint enterprise would have the necessary intent to be guilty of murder or grievous bodily harm if they had foreseen that the infliction of serious bodily harm would be a possible incident of the joint enterprise;".

19. The issue here is the degree of presence and participation by KWOK Ka in the joint enterprise - the robbery and murder. Mr. Keane has based his attack on two main grounds. First that there was not sufficient evidence of participation to put KWOK Ka to his defence and that the trial judge had a duty to withdraw the case from the jury; second that even if there was some evidence the nature of that evidence was so tenuous that it was unsafe to leave the matter to the jury.

20. No submission of no case was made at the end of the prosecution's evidence. KWOK Ka did not give evidence. There was before the jury a statement by him denying complicity.

21. Mr. Keane is fortified in his argument by the directions the trial judge gave in his summing-up as to KWOK Ka. He said:

22. A strong direction to consider acquittal. There was no corroboration of LEUNG's evidence. The failure to give evidence by an accused is not, of itself, corroboration nor to be treated as indicative of guilt - though it is difficult to avoid the reality that a jury might say to themselves "Well, he has not told us his side of the story" and consider that a factor in their consideration.

23. The evidence of a journey to Taiwan, in the company of Wo Chai and the 4th defendant, some two months after the robbery and within days of the arrest of CHEUNG Wai Yee was not corroboration of the offences charged. It might well have gone to KWOK Ka's fear that, as he was implicated in the planning, he could well be arrested and his desire to avoid that arrest. The jury were so directed.

Evidence of Participation

24. Now returning to the reservoir. It is at this point that LEUNG makes his last specific reference to the presence of KWOK Ka. LEUNG left for Tai Kok Tsui with the car and was not aware of what happened to the individuals at the reservoir after he left. Having placed himself at the steak house, he was then asked in chief:

"Q.    At some stage thereafter did the others arrive?

A.     Yes, the vehicle arrived.

Q.    At about what time, do you remember?

A.    About twelve.

Q.    And were the other eight gang members in that vehicle?

A.    Yes, I suppose they were."

Then LEUNG, having been given back his gun by CHEUNG, went to his post at the road block walking from the steak house to Ning Po Street. He was asked how "the others" got to the jade shop and he answered that some of them went there on foot, some of them went there in the van but he did not specify who did what.

25. He went on that he saw "the others" rushing into the shop but he could not see what was taking place inside that shop. He heard a number of gun shots fired and he said that he saw "those who had committed the robbery” leaving the shop and boarding the van.

26. The van moved off but stopped when it got- to LEUNG's position at Ning Po Street where he got on. He was then asked:

27. On this evidence it is necessary to infer that KWOK Ka came from the reservoir to the steak house in the van, to infer that he went from the steak house to the jade shop, to infer that he participated in the robbery and to infer that he left the robbery scene in the van.

28. It seems to have been assumed at trial by both Counsel and the Judge that there was evidence sufficient to permit the inferences I have referred to being drawn and in the particular a final inference of guilt.

29. In the direction we have quoted, it appears that the trial judge was concentrating on the nature of the witness from whom the evidence had emanated and the lack of corroboration. There hawing been no submission of no case he seems to have felt, when he said that he had "no power in law" to take the case from the jury that the credibility of LEUNG was the issue and was one which was solely for the jury.

30. It is true that KWOK Ka never said that he resiled from the enterprise, between the reservoir and the jade shop.

31. It is correct that, while individual inferences need not be proved beyond reasonable doubt, an inference of guilt, arising from the evidence grounding the individual inferences, must be established beyond reasonable doubt. Otherwise there is no proof of guilt to the required standard. And here the whole of the Crown's case against KWOK Ka on murder and robbery was based upon his presence and participation in the events at the shop.

32. Upon a proper analysis of the evidence of LEUNG it is apparent that there is an unfilled gap, not just a gap between the steak house and the robbery scene but as between the reservoir and the steak house. The evidence was not enough to justify the convictions.

33. In the light of this conclusion we do not think it necessary to consider the suggested conflict of authority on the role of the Judge in like circumstances. Had the wideness of the unfilled gap here been drawn to the attention of the trial judge he had the power to stop the case and would no doubt have exercised it.

34. The application for leave to appeal by TSANG Hing-wo is refused. The application for leave by KWOK Ka is granted, the hearing of the application treated as the hearing of the appeal and the appeal allowed; the convictions quashed and the sentences set aside.

(1)    [1984] 3 W.L.R. 677 P.C.

Representation:

TSANG Hing-wo in person.

Desmond Keane, Esq., Q.C. and G.A. Mackay, Esq. assigned by DLA for the Applicant, KWOK Ka.

M.K. Ricketts, Esq. for Crown/Respondent.