Ng Wai-ming and Others v. The Queen
Read the full judgment text of CACC 400/1979 on BabelCite. This Court of Appeal judgment was delivered on 1 April 1980.
1. NG Wai-ming (D.1), LAW Kwok-ching (D.2) and CHAN Kam-wah (D.4) the three appellants were jointly charged, with CHEUK Ka-tam (D.3), with robbery and the associated offence of possession of a firearm at the time of committing a robbery. D.3 was acquitted.
Cited by 3 cases
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CACC000400/1979
----------------- Coram: Roberts, C.J., Leonard and Li, JJ.A. Date of Judgment: 1 April 1980 ----------------- JUDGMENT ----------------- Introduction 1. NG Wai-ming (D.1), LAW Kwok-ching (D.2) and CHAN Kam-wah (D.4) the three appellants were jointly charged, with CHEUK Ka-tam (D.3), with robbery and the associated offence of possession of a firearm at the time of committing a robbery. D.3 was acquitted. 2. D.1 pleaded guilty to robbery and was sentenced to 14 years' imprisonment. The Crown did not proceed against him on the count of possession of a firearm. He seeks leave to appeal against sentence. 3. D.2 was convicted of robbery, for which he was sentenced to 15 years' imprisonment, and of possession of a firearm, for which he was sentenced to six years' imprisonment, the two sentences to run concurrently. He seeks leave to appeal against sentence. 4. D.4 was convicted of the same two counts as D.2 and was sentenced to the same terms of imprisonment. He seeks leave to appeal against both conviction and sentence. Facts 5. On the morning of the 29th May, 1978, two Securicor officers were detailed to collect a sum of two million dollars in notes, ranging from $1,000 notes to $10 notes, from the Chartered Bank premises in Des Voeux Road. These notes were placed in two specially constructed iron boxes by Securicor officers inside the bank. A further $310,000 was placed in a third box. The three boxes were sealed. 6. Outside the bank was a Securicor armoured van, the driver of which was D.4. The two boxes containing the two million dollars in notes were placed on board it by two Securicor guards, Mr. Cheung and Mr. Wong. They did this by pushing the boxes through a specially constructed trap door at the rear of the van. Mr. Cheung told the driver to lock the trap door and instructed a third Securicor guard, Mrs. Leung, to wait on board the armoured car while he and Mr. Wong delivered the third box, containing the $310,000 to the Algemene Bank, which is not very far away. 7. Mrs. Leung knocked on the door of the armoured car; the driver opened it and let her in. As she was entering, three men came up behind her and pushed her into the van. Behind the driver's compartment is a separate section; she was pushed into it and forced to the floor. There she was tied up with wire, gagged, told to be quiet and threatened that if she did not do so she would be shot. She saw no gun at that stage but, nevertheless, put up no further resistance. She did, however, see a pistol in the possession of one of her assailants a few minutes later. She was unable subsequently to identify any of her attackers 8. The three men, who had forced their way into the van, told the driver to move off and gave him instructions as to where he should go. When the van reached Harbour Road, they ordered the driver, that is to say D.4, into the same compartment at the back of the van, where he was tied up with wire. They left the armoured car, taking with them the two boxes containing the two million dollars in notes. 9. Mrs. Leung was able to free herself quickly and to see a green Toyota van, with a registration number which she remembered, drive away. She freed D.4 and told him to report the robbery to Securicor, which he did. Investigation by police 10. During the intensive police investigations which followed, suspicion fell upon D.4, who was interviewed by the police on several occasions in the month of June. 11. On the 30th June, the police received information that D.4 had a safe deposit box at the Hang Seng Bank. He was therefore asked to attend the C.I.D. offices in Police Headquarters for an interview on the 3rd July. During this interview, he admitted that he did own a safe deposit box at the bank (which he had previously denied) and that he had opened it on the 30th May, 1978, the day after the robbery. The police accompanied him to the bank where the box was opened in his presence and found to be empty. 12. The bank cards relating to the box showed that he had visited the box on the 31st May and on the 5th June. That evening, he was formally arrested and charged with giving a false statement to the police about the deposit box and was kept in custody. 13. Later that evening, he asked to see Supt. Lau, who was the officer in charge of the case, and enquired if he had been arrested for lying to the police about the safe deposit box. The Superintendent told him that that was correct; D.4 insisted that the safe deposit box had had nothing whatever to do with the robbery. 14. About 1 a.m on the following morning, the 4th July, D.4 again asked to see the Superintendent. At this interview, he admitted to the Superintendent that he had been involved in the robbery and asked if he could be a prosecution witness. The Superintendent told him that he was in no position to make any promises about that, as this was a matter that would have to be referred to the Attorney General. 15. After seeing a solicitor, D.4 was released on bail the following afternoon. However, he was re-arrested on the 7th July and charged with robbery. On the following day, the 8th July, he accompanied Supt. Lau to Happy Valley Police Station where two keys were taken from his property. D.4 led the police to a car park in Great George Street where, on the second floor, was a motor vehicle, the door of which was opened by one of the keys which had been found in D.4's property. Under the floor of the vehicle in front was found $36,000 in cash; another $150,000 was found under the back seat of the car. 16. On the same afternoon, D.4 took the police to a flat which was occupied by his mother; in the presence of the police, he asked her for the things which he had left there and which she said she had given to someone. He next took the police to his flat in Kwai Ying Building, where he had a conversation with his wife. D.4 and the police next went to the home of an uncle of D.4's wife, where a cash box was produced, containing $160,000 in notes. 17. Later that day, D.4 returned with the police to his mother's home, where she produced a paper bag containing $50,000 in notes. So the total of notes recovered, under the guidance of D.4, was $396,000. Case against Fourth Defendant 18. The allegation against D.4 was that he was the inside-man and an essential part of the design. His defence, which he put forward when he gave evidence at the trial, was that he was only doing his duty and that he was a victim of the robbery and not a partner in it. 19. The essence of the case against D.4, apart from a verbal confession which he made to Supt. Lau in the early hours of the morning on the 4th July, was his knowledge of the location of the notes. 20. According to Supt. Lau, during the interview which took place early on 4th July in his office, D.4, when asked by the Superintendent why D.4 wanted to see him, replied.
21. Almost immediately after that, the Superintendent said -
22. We will return to the significance of this passage in the evidence in a moment. 23. The main evidence against D.4 was his knowledge of the whereabouts of the very large sums to which he led the police. The Crown says that the irresistible inference is that they must have been the proceeds of the robbery. Admissibility of evidence of finding of notes 24. The admissibility of the evidence of Supt. Lau, that he and other police officers had been led by D.4 to the site of the various sums of money, was strenuously resisted. Indeed, the Crown made no attempt to secure the admission of verbal statements made by D.4 which accompanied the physical finding of the notes. The reason why the Crown did not do so, as is apparent from an examination of the record of the early part of the trial, was that it was conceded that the passage which I have just quoted containing the phrase "I also said to him that it might be in his interest to tell the police the truth," combined with the references therein to the possibility of him being a prosecution witness, might have acted as an inducement. 25. However, what the Crown has sought to do is not to adduce evidence of anything which he said but evidence only of what was found in the course of visits by the police to various places in his company. 26. The authorities have made a distinction between an inadmissible statement and factual evidence which has been obtained by the prosecution as a result of an inadmissible statement. In R. v. Ramasamy(1) Lord Radcliffe, delivering the opinion of the Board, comments as follows on section 27 of the Criminal Procedure Code of Ceylon -
27. He also refers to the early case of Thurtell v. Hunt(2) where Park, J., said -
28. The modern authorities on the subject could perhaps be said to start with Kurama, Son of Kaniu v. R.(3) in which the appellant was convicted of being in unlawful possession of ammunition, which was found on his person during the course of an illegal search by two police officers in Kenya. It was "illegal" in the sense that the two police officers were not of sufficient rank to entitle them to carry out a search of the kind which revealed the ammunition. That case, again a Privy Council case, appeared to state a clear principle that evidence which had been obtained by improper means was, nevertheless, admissible if it was relevant to the matters in issue. 29. Other cases, and in particular R. v. Barker(4) and R. v. Payne(5) seem to have suggested that where improper means, amounting to deception or trickery, are adopted, the evidence concerned would not be admissible at all. 30. However, the law has been clarified by R. v. Sang(6). The effect of that case, as we interpret it, is that where evidence is obtained as a result of a confession, which is inadmissible because the Crown has failed to establish its voluntary nature, such evidence may nevertheless be put before the court. However, there remains in the trial judge his overriding discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighs its probative value. In this instance, the probative value was substantial. 31. Furthermore, it would also be open to the judge, in accordance with his duty to ensure a fair trial, to rule out such evidence if it were obtained by a trick or deception. In this instance, the only trick or deception suggested was that D.4 might have been misled into believing that he might be given immunity and called as a prosecution witness. 32. As to this, the judge found as a fact that, after he was arrested and charged with robbery, D.4 must have realized that his chances of being a prosecution witness were very slim. Exercise of discretion 33. The judge approached the admission of the evidence of the finding of the notes on the basis, as indeed, he was obliged to do in view of the Crown's concession, that the Crown had not established the voluntary nature of the verbal statements which preceded or accompanied the finding of the money. Nevertheless, in accordance with the authorities, rightly in our view, he decided that the evidence of the finding of the money was admissible. 34. He next directed his attention as to whether or not he should exercise his discretion to exclude that evidence, although he had found it to be admissible. This court is reluctant to interfere with the exercise of a discretion of this nature, and does so only if it can be shown that the judge had misdirected himself, either by taking into account material factors which he ought to have ignored or by taking no account of matters to which he should have given weight. There is nothing to suggest that he erred in either such respect in this case. Questioning of persons charged 35. We think that we should, in passing, though it is not essential to this decision, refer to what we might perhaps describe as the over-zealousness of the Superintendent. Mr. Marash drew our attention to a passage in Archbold, which supports the proposition that, after an accused has been arrested and charged, it is proper, in exceptional cases, for the police to ask him further questions. We would like to remind those concerned that such cases must be rare and exceptional. In this case, a very large sum of money was involved, but it is common for the police to have failed to trace stolen property, at the time when the accused is charged and brought before the court. We do not think that such failure is by itself sufficient to justify the question of persons who have already been brought before the courts and charged; and it is a practice which we deprecate. In rare cases it may be permissible, but they should remain rare. Was verdict unsafe? 36. There was at the end of Miss Remedios' grounds of appeal, though she did not pursue the matter today, a ground that the verdict was unsafe and unsatisfactory. So far as this goes, it is worth noting that D.4, when he gave evidence at the trial, which incidentally he had not done on the voir dire, did not dispute receiving the money. Indeed, he admitted that he had received it and that he had secreted it in the various places in which it was found by the police. 37. It is hardly surprising that the jury should have, as they must have done by their verdict, rejected his extraordinary tale as to how he came into possession of $396,000, and must have concluded that this enormous sum could only have been part of the proceeds of the robbery. Indeed, it is difficult to imagine any reasonable jury coming to any other conclusion 38. We therefore see no merit in D.4's application for leave to appeal against conviction and we refuse it. Appeals against sentence 39. Mr. Sanguinetti put forward to us, very persuasively, the argument that the judge had not taken into account the fact that D.1 must be deemed not to have known that firearms were to be carried at the time of the commission of the robbery. 40. Although D.1 was charged originally with the others of possession of a firearm, the Crown offered no further evidence against him during the trial. If he did not know, as must be assumed in his favour, that a firearm was to be carried, this makes the robbery a much less serious matter, so far as he is concerned, We have come to the conclusion that because of that difference, he should receive a lesser sentence than that of the other two defendants. We allow his application for leave to appeal against sentence and substitute for the sentence of 14 years, a sentence of 7 years' imprisonment. 41. We have been much influenced in relation to the sentences of D.2 and D.4 by the Hong Kong cases to which we have been referred. We agree with Mr. Ching's submission that, although English authorities on sentences are sometimes useful, we should primarily rely upon Hong Kong authorities on the subject. 42. Chan Fu and Anor. v. R.(7) and Ng Tat Chor(8) both dealt with robberies in which revolvers were used. In each case there was an exchange of fire. In Ng Tat Chor the Court of Appeal said -
43. In Chan Fu, the Court of Appeal repeated that eight years was the minimum for a case involving the use of firearms. 44. We consider eight years to be too low where firearms are used. Had there been shots fired in the course of this robbery, we would not have come to the conclusion that fifteen years was excessive. But the degree of violence which was used was not great. The only physical assault was that on Mrs. Leung, the Securicor guard, who was tied up and gagged, but who suffered no injuries. 45. This was, however, a serious robbery, in the sense that firearms were carried even though they were not used. Also, there was a substantial degree of planning. Taking these factors into account, we conclude that a sentence of fifteen years is manifestly excessive. We give D.2 leave to appeal against sentence and substitute a sentence of nine years' imprisonment, instead of fifteen. 46. The same considerations which have affected us in relation to D.2 apply also to D.4. There is, however, in his case, the additional factor, which must tell against him, that he was an employee of the company. He must have been an integral part of the plan; indeed, it might very well not have taken place without his co-operation. 47. We give him leave to appeal against sentence, quash the sentence of fifteen years and impose instead a sentence of ten years' imprisonment. The sentences of six years imposed on D.2 and D.4 will remain and will be concurrent. Representation: Sanguinetti (David K.W. Tsang & Co.) for 1st appellant Ching, Q.C. & Nguyen (K.M. Lai & Li) for 2nd appellant Miss C. D'A Remedies (H.M. So & Co.) for 3rd appellant Marash for the Crown/Respondent (1) 1965 A.C. 1 (P.C.), at p.14 (2) 1824 Notable British Trials 55 (3) 1955 A.C. 197 (4) 1941 3 All E.R. 33 (5) 1963 1 W.L.R. 637 (6) 1979 2 All E.R. 1222 H.L. (7) Crim. App. 1977 No.1156 (8) 1977 H.K.L.R. 66 |
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