Man Kam-wah @ Man Kam and Others v. The Queen

CACC000470/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 470 OF 1974

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Coram: Huggins, McMullin and Pickering, JJ.

Date of Judgment: 2nd December 1974.

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JUDGMENT

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Huggins, J.:

1. These are appeals against conviction by seven out of a total of nine Defendants charged with murder and various other offences related to the robbery of a bank. The fifth Appellant was the sixth Defendant: the sixth Appellant was the seventh Defendant: the seventh Appellant was the ninth Defendant. I shall refer to them accordingly. Counsel has indicated that he is unable to advance any ground upon which we could interfere with the convictions of the first, third and fourth Defendants and their applications are dismissed.

2. On behalf of the second sixth seventh and ninth Defendants counsel has attacked only their convictions on the charge of murder. In short the contention is that the evidence was insufficient to justify the jury in finding that these Defendants or any of them fired the shot which killed a police officer while the robbers were escaping from the scene of the bank robbery or that they had a common intent to kill or to cause grievous bodily harm with the person who did fire the shot. No complaint is made of the summing-up.

3. The following statement of the material evidence for the prosecution is taken from a summary of facts submitted by counsel at the hearing of the appeal and we are grateful for the assistance he has given to us. At 8.50 a.m. on the morning of 14th August 1973 a public car registration No. AV 9296 was hailed by four Chinese males outside a teahouse in Kowloon. Three of the Chinese males got into the back seat whilst one sat in front. One of the men in the back produced a revolver and the driver was forced to drive the car to Clearwater Bay Road. There the driver was forced to walk down the hillside for some 300-400 yards into some bushes and was tied up and gagged. The car was then driven away by the assailants. At about 11.10 a.m. of the same day (14th August 1973) eight Chinese males entered the Chartered Bank situated at the corner of Cheung Wah Street and Un Chau Street in Shamshuipo. Six were wearing hoods and two were wearing forage caps. Of the eight, four carried guns and two carried knives. In the bank a security guard had his revolver snatched by a robber after the lanyard had been cut with a knife, and he was hit on the head and neck which rendered him unconscious. During the robbery a messenger was also hit on the head with a revolver and another security guard had his revolver snatched. Before the robbers left the bank three female staff members were forced to leave the bank with them - two of the three girls were released outside and one was forced to get into the vehicle. At the time when the robbers were coming out of the bank there was a Securicor van parked near its entrance. The robbers pointed revolvers at the two occupants of the van and forced them to get out and when one was slow in alighting from the vehicle he was hit on the head and was also rendered unconscious. The car, with the eight robbers and the girl hostage, was then driven along Cheung Sha Wan Road, where it mounted the pavement, and then collided with a bus at the junction of Tonkin Street. Immediately after the collision the occupants got out of the car and the girl escaped. All the robbers ran up Tonkin Street. The fourth accused was identified by the bus driver as the driver of the get-away car. Two of the robbers, whilst running up Tonkin Street, drew their revolvers and the bus driver said he heard "bangs" but P.C. 6369, who saw a gun being drawn and pointed in the direction of the police van, did not say whether shots were fired. One of the robbers running up Tonkin Street threw a plastic bag containing a knife into the nullah. During the escape some of the robbers jumped across the central railing to the south-bound carriageway of Tonkin Street where they forced the driver of a red Mercedes Benz, at gun-point, to get out and the vehicle was taken. The driver of the red Mercedes Benz said that there were five and they all had guns. The driver also said that one shot was fired but not in his direction. Once the robbers had boarded the red Mercedes Benz it was driven down Tonkin Street, turned into Cheung Sha Wan Road, then into Yen Chow Street, and then into Un Chau Street where it got stuck in a traffic jam. By that time the red Mercedes Benz was being pursued by a police patrol car in which were P.C. 9611, P.C. 2752 and the deceased Sergeant 790. The police witnesses say that there were at least two suspects who ran up Pei Ho Street towards Tai Po Road. One of them was identified as the first Accused. When the first Accused was outside No. 185 Pei Ho Street he was seen to draw a revolver from his waist and to fire two or three shots. P.C. 9611 shouted to the Sergeant to duck: he himself took cover at the rear of a minibus, drew his own revolver and then proceeded up Pei Ho Street taking cover behind the columns. The two suspects who ran up Pei Ho Street arrived at Tai Po Road and there they hijacked a yellow Honda car by threatening the driver with a revolver and drove off in that car. P.C. 2752 fired a shot at the car and one or two shots were returned from the car. In Pei Ho Street Sergeant 790 was fatally shot through his head, and three pedestrians were injured. In the early hours of 15th August 1973 the police conducted raids at various premises throughout the Colony and the nine Accused were arrested. The first, second and third Accused were arrested together in a hut in Chai Wan and there the police recovered $119,090 which was part of the money taken from the bank. Where the fourth Accused was arrested, $32,800 was found. Where the sixth Accused was arrested, $29,050 was found. Where the seventh Accused was arrested, $31,350 was found. Where the ninth Accused was arrested the police seized a pattern for making hoods, a sewing machine, some thread which matched the thread in the hood found in the getaway car No. AV9296, a blank cartridge and a bundle of keys which matched the drawer where the guns and ammunition were found. Where the eighth Accused was found a quantity of guns and ammunition was recovered along with a large sum of money.

4. In a statement to the police the seventh Defendant admitted being present at the robbery and driving away from the bank in the getaway car until it collided with the bus. The other three of these Appellants pleaded an alibi.

5. It was, of course, necessary for the jury to be satisfied that each of the Appellants had the required intent. In their cases that intent had to be an intent common with the person who actually fired the shot to use extreme violence to effect the escape of all the robbers and the safe transit of the stolen property to the place where it was to be distributed among them. Counsel conceded that there was a common plan to escape together, but he submits that, that plan having been frustrated and the robbers having dispersed in different directions, only those at the scene of the shooting could possibly be found to have an intent common with the actual killer. Plausible as this argument may be we do not think it reflects the realities of the situation. It rust always be a matter of degree whether events which have intervened to frustrate the plans of conspirators have brought their common intention to an end and, as such, it is a matter for the jury. Had the killing occurred in the very early stages of the dispersal it is unlikely that anyone would have doubted that the common intent continued, while if the killing had occurred on the following day it is unlikely that anyone would have concended that the common intent was still in being. Between those two extremes lies an linfinity of possible combinations of circumstanes, and we are unable to say that it was not open to the jury in the present case to find that the death of the police sergeant was in pursuance of  a common intent to employ such violence as might be necessary, including the use of firearms, in order to effect the escape of all the robbers and the conveyance of the money to the Valley Road Estate. Counsel emphasised that one of the robbers threw away his knife after the dispersal had taken place and suggested that he at least could not thereafter have had the common intent. We think that the throwing away of a knife did not of itself prevent this man's being associated with the shooting even though the shooting occurred later. Had he immediately surrendered to the police the position would no doubt have different, for that would have demonstrated his wish to dissociate himself from any continuance of the common plan. There might have been a difference between throwing away a knife and throwing away a pistol, but is sufficient that a robber could throw away the knife while still intending that those armed with pistols should use them. The seventh Defendant asserted that at no stage was he armed with a weapon of any kind, but he could still have intended that anyone who was armed should use his weapon in effecting the escape and the jury were entitled to conclude that that was his intention, for he cannot have been ignorant of the fact that some of his companions were carrying pistols.

6. As to the sixth Defendant counsel urged that there was no evidence that he returned to the Valley Road Estate and that therefore there was insufficient evidence that he ever intended to go there: it followed that he could not be responsible for a killing which occurred while the others were trying to reach that estate. Again, this seems to us to be altogether too subtle an approach. The jury obviously thought that the whole series of events took place within such a short space of time and was of such a character as to leave no doubt that all those taking part in the robbery intended that firearms be used to effect the escape and if the sixth Defendant did not go to the estate that fact was no more indicative of his having separated from what was plainly the original plan than was the throwing away of a knife during the course of the escape.

7. For these reasons the applications of the second, sixth, seventh and ninth Defendants for leave to appeal against conviction are also dismissed.

2nd December 1974.

Representation: