Read the full judgment text of CACC 000255/2004 on BabelCite. This Court of Appeal judgment was delivered on 25 January 2005 before Cheung JA, Gall J, Burrell J.
Criminal law – conspiracy to rob – sufficiency of evidence – circumstantial evidence – joint enterprise – leave to appeal against conviction – Firearms and Ammunition Ordinance Cap. 238 s.13 – pepper spray – face mask. The applicants (2nd, 3rd, and 4th defendants) sought leave to appeal against their convictions for conspiracy to rob arising from events on 21 November 2003. Police surveillance tracked the 3rd defendant as he drove the other defendants to Tsim Sha Tsui, where the 1st and 2nd defendants loitered for three hours outside the Tsim Sha Tsui Mansion, the expected venue for a diamond transaction. They were arrested carrying face masks and cans of pepper spray. The 3rd and 4th defendants fled in the car but were arrested after a chase. The 1st defendant's admissions (ruled admissible only against him) described a planned robbery, reconnaissance, and waiting for the target. The court held that a case can be built on circumstantial evidence and that the combination of face masks and pepper spray, in the context of a long wait outside a building where diamonds were expected, led irresistibly to the inference of conspiracy to rob. The argument that some other crime might have been intended was not available to the defendants, who chose to remain silent. The 3rd and 4th defendants were connected to the 1st and 2nd defendants by design through the car and the 4th defendant's liaison role; the 3rd defendant was plainly the driver. To suggest the connection was innocent defied common sense. The application was accordingly dismissed.
Legal issues: Sufficiency of evidence for conspiracy to rob against 2nd defendant · Admissibility/use of face mask as evidence in SARS context · Whether 3rd and 4th defendants were co-conspirators · Whether the prosecution had to prove the specific crime intended
Outcome: Application for leave to appeal against conviction dismissed for the 2nd, 3rd, and 4th defendants.
Cited by 3 cases