HKSAR v. Wong Hok Hang and 2 Others

CACC 255/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 255 OF 2004

(On Appeal From District Court Criminal Case No. 92 of 2004)

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BETWEEN

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Before : Hon Cheung JA, Hon Gall J and Hon Burrell J in Court

Date of Hearing : 25 January 2005

Date of Judgment : 25 January 2005

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

Leave to appeal against conviction

1.This is an application for leave to appeal against conviction. 

2.For ease of reference the applicants are referred to as the 2^nd, 3^rd and 4^th defendants respectively.  They together with another defendant namely, the 1^st defendant were charged with the offence of conspiracy to rob.  Each of the 1^st and 2^nd defendants was also separately charged with possession of arms and ammunition without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance Cap. 238 (‘the Ordinance’).  The article in question was a can of pepper spray. 

3.All the defendants were found guilty after trial in the District Court by H H Judge Day.  None of them gave evidence or called any witnesses on the charges.  Each of the defendants was sentenced to 4 years and 6 months for the conspiracy charge whilst the 1^st and 2^nd defendants further received 9 months for the possession charge which was to be served concurrently with the 4 years and 6 months’ imprisonment. 

4.The 2^nd defendant had since abandoned his application for leave to appeal against the possession charge.

The Prosecution’s case

5.The prosecution’s case against the defendants was that they had conspired to rob a person who would be carrying diamonds at a building known as the Tsim Sha Tsui Mansion at 83-87, Nathan Road, Kowloon, Hong Kong (‘the building’).  The intended victim, however, did not appear and the robbery was not committed. 

6.It was an admitted fact that the pepper spray (capsicum) was caught by section 13 of the Ordinance and the 1^st and 2^nd defendants did not have a licence to possess the article.

The surveillance

7.The evidence against the defendants was based on, among other things, the surveillance conducted by police officers on 21 November 2003.  The surveillance started soon after 1 p.m. when the 3^rd defendant was seen leaving his home in Ma On Shan and getting into a car (‘the car’).  At about 1:30 p.m. he was stopping in Tai Po to pick up two other persons.  These two persons were said to be probably the 2^nd and 4^th defendants because the police officers could not be sure about the identities of the persons he had picked up.  However, by 2:30 p.m. the 2^nd and 4^th defendants were seen getting out of the car in Hillwood Road, Tsim Sha Tsui.  The 2^nd and 4^th defendants returned soon afterwards with the 2^nd defendant carrying food. 

8.At about 3:15 p.m. the 3^rd defendant drove the car to Carnarvon Road where he parked.  The 1^st and 2^nd defendants got out of the car followed later by the 4^th defendant.  The car had apparently collected the 1^st defendant somewhere unnoticed.

9.Between 3:30 p.m. and 6:30 p.m. the 3^rd defendant stayed with the car in Carnarvon Road.  The 1^st and 2^nd defendants went to the building.  During these three hours the 1^st and 2^nd defendants were seen going in and out of the building and on several occasions they were seen loitering outside the building.  On one occasion they met the 4^th defendant outside the building and all three went inside.  The 4^th defendant then returned to the car and met the 3^rd defendant.  The 1^st and 2^nd defendants remained outside the building. 

10.Later on, the 1^st and 2^nd defendants again met the 4^th defendant.  This time near Humphreys Avenue before they separated.  The 4^th defendant eventually returned to the car and the 1^st and 2^nd defendants returned to the outside of the building. 

The arrest

11.The 1^st and 2^nd defendants were arrested outside the building by the police officers at 6:30 p.m.  Each of them was found to have on their body a face mask and a can of pepper spray.  Another group of police officers approached the 3^rd and 4^th defendants.  The 3^rd and 4^th defendants fled with the car.  They were arrested in the car after a chase. 

The statements

12.The 1^st defendant was interviewed by the police and gave two statements.  The judge ruled the statements admissible against him.  The statements contained admissions by him of the crime.  As the judge had summarised, in these statements the 1^st defendant talked about the meetings to plan the robbery; of a reconnaissance exercise; of an attempt which failed because of the non-appearance of their target in the days leading to their arrest; and of their waiting on the day of the arrest for the opportunity to waylay a man they believed would be carrying diamonds.  The robbery was suggested by the 4^th defendant.  The 3^rd defendant was the driver.  The 1^st and 2^nd defendants would carry out the robbery.  The judge had very carefully ruled while the statements were evidence against the 1^st defendant they were not evidence against the other defendants. 

13.The 2^nd defendant also made two statements.  However, these statements were ruled inadmissible by the judge. 

Identity of the victim

14.The prosecution was unable to prove the identity of the intended victim.  But as pointed out by the judge this was irrelevant because the defendants were charged with the offence of conspiracy to rob. 

Grounds of appeal

15.The grounds of appeal of the defendants can be summarized as follows :

For the 2^nd defendant :

For the 3^rd and 4^th defendants :

The finding

16.As against the 1^st and 2^nd defendants this is what the judge said :

‘ The only inference I could properly draw when I heard evidence, which I accepted, of two men loitering around outside a building for three hours, each with a mask and a pepper spray in his pocket, was that they intended robbery.  I could not conceive of any legitimate reason why one man would have a spray and a mask on him in broad daylight in Nathan Road; that there were two men together, identically equipped, compelled the only conclusion : they had planned a robbery and were awaiting their opportunity.’

17.As against the 3^rd and 4^th defendants, the judge held that :

‘ If the evidence involving the 3^rd and 4^th defendants is taken in isolation - one sitting in a car for three hours and the other wandering around between the car and Tsim Sha Tsui – then of course it does not prove the conspiracy.  Their undoing is their connection with the two potential robbers.  The surveillance evidence connected D3 and D4 irrefutably with D1 and D2, and to suggest that the connection may be innocent defies common sense; the 3^rd defendant having brought the three others to Tsim Sha Tsui, then parked in Carnarvon Road and waited for three hours; D4 came and went between the car and the 1^st and 2^nd defendants.

I am satisfied that D1 and D2 were waiting to commit robbery.  What else were D3 and D4 doing other than waiting for them and involved with them?  There can be only one reason why they were behaving like this : they were part of the conspiracy.  I have no doubt that the 4^th defendant was liaising between the players, and that D3, having driven his friends to Tsim Sha Tsui, was to drive them away again after the robbery.’

Common design and purpose

18.In our view a case can be built on circumstantial evidence.  Individual evidence can be taken together from which an inference of guilt can be made.  From the evidence it is clear that the presence of the four defendants on the day in question was by design and not by chance.  The 3^rd defendant was the one who picked up the other defendants.  They eventually ended up in Carnarvon Road which was in the vicinity of the building.  The 3^rd and 4^th defendants remained for the most part at the car while the 1^st and 2^nd defendants waited outside the building making several trips inside.  The 4^th defendant twice walked from the car in Carnarvon Road to meet up with the 1^st and 2^nd defendants.  Before returning to the car, the 4^th defendant himself went into the building once.  These are strong inferences that the four defendants were acting in a group and were pursuing a common purpose.  They were there in Tsim Sha Tsui on the day in question for a specific purpose. 

Conviction of the 1^st and 2^nd defendants

19.It can hardly be challenged that the judge had correctly found each of the 1^st and 2^nd defendants carried a face mask and a can of pepper spray with them when they were arrested.  There was ample evidence to support the finding.  While the face mask may be used for an innocent purpose, the presence of the pepper spray cans can only be used for some illegitimate purpose.  The long wait by the 1^st and 2^nd defendants outside the building and their trips inside clearly are strong evidence which entitled the judge to draw an inference that they intended to commit a robbery by the use of the spray.  It is a well known fact that the spray could be and were used in robberies for the purpose of subduing the victim.

20.While the judge said that he did not have to rely on the admission of the 1^st defendant to find him guilty, clearly the admissions by the 1^st defendant showed that he was there to commit the offence of robbery.  While this admission was not evidence against the 2^nd defendant (or likewise the 3^rd and 4^th defendants), the presence of the 1^st and 2^nd defendants together during a relative long period of time and the equipment they carried with them amply justified a finding that the 2^nd defendant was there to commit a robbery with the 1^st defendant and both of them were guilty of the offence of conspiracy to rob. 

21.The argument that the crime that they intended to commit was something other than robbery was simply not available to the 2^nd defendant in this case.  There was no contrary evidence and, if, despite the evidence against him, the 2^nd defendant said that he was there together with the 1^st defendant for another purpose then clearly this would require an explanation from him.  He chose to remain silent.

Conviction of the 3^rd and 4^th defendants

22.The 3^rd and 4^th defendants were clearly connected to the 1^st and 2^nd defendants by design.  From the evidence the judge was amply justified in drawing the inference that the 3^rd and 4^th defendants were also part of the conspiracy to rob.  As the judge rightly pointed out, to suggest that the connection may be innocent defies common sense.  We agree with the judge’s observation that the 4^th defendant was there to liaise with the 1^st and 2^nd defendants to carry out the robbery while the 3^rd defendant was the driver responsible for the getting away from the scene after the robbery.

23.What we had said about the argument of another possible crime being committed applied with equal force to the 3^rd and 4^th defendants. 

Conclusion

24.The decision of the judge was correct and the application is accordingly dismissed.

Ms Mary Sin, SADPP of Department of Justice for the respondent

Mr. Steven Lau, instructed by Messrs K. W. Luk & Co. for the 2^nd applicant/defendant

Mr. Eric Y. N. Lau, instructed by Messrs Tang, Wong & Cheung for the 3^rd and 4^th applicants/defendants