R. v. Luu Trung Hung and Another

CACC000474/1991

HEADNOTE

Conspiracy to rob - inferences that can properly be drawn from the carrying of knives, wire and adhesive tape by persons walking together as a group.

-----------------------

Coram: Hon Silke, V-P, Power and Macdougall, JJA

Date of Hearing: 21st August 1992

Date of Judgment: 21st August 1992

-----------------------

J U D G M E N T

-----------------------

Power, J.A.:

1. The applicants appeared before His Honour Judge Caird in the District Court. They were the 1st and 3rd defendants at trial and each faced three counts: (a) conspiracy to rob (against the applicants and the 2nd defendant), it being alleged that on 24th of September 1990 together with a person unknown they had conspired to commit a robbery; (b) possession of an offensive weapon (against the 1st defendant only), it being alleged that he had, at 129-131 Yee Kuk Street, Shamshuipo, without lawful authority or reasonable excuse, an offensive weapon, namely a knife; and (c) resisting a police officer in the due execution of his duty, it being alleged that he resisted a detective police constable at that time and place. The 3rd accused also faced charges of possession of an offensive weapon and resisting a police officer in the due execution of his duty. The particulars of these charges were, except for the officer concerned, the same as the particulars in the two charges laid against the 1st defendant.

2. All three defendants were found not guilty on the resisting a police officer charges but were found guilty on the other two charges and were sentenced to 4 years and 3 months on the conspiracy charge and 9 months on the possession of an offensive weapon charge. The sentences were ordered to be served concurrently. The 1st defendant now appeals against both convictions and sentences, and the 3rd defendant appeals against the convictions.

3. The prosecution evidence, which the trial judge accepted, came from police officers who laid an ambush on the day in question in the vicinity of the Shui Hing Building at 129-131 Yee Kuk Street, Shamshuipo. An Inspector Chan and three officers were concealed in the Families Clinic some 60 feet from the building and there were teams of other officers in the vicinity. Inspector Chan said that he saw four males cross the road to the building and enter it as a group. Three of them wore white sport shirts with the bottoms not tucked into the trousers, and the fourth had a coloured shirt. Inspector Chan said he gave a signal for the arrest of the men as he felt that he had been observed by one of them as they were crossing the street. He said that in the commotion that followed he did not see the actual arrests. The man wearing the coloured shirt escaped. The three arrested after a struggle, i.e. 1st, 2nd and 3rd defendants, each had a knife tucked into the waist band of his trousers. The 1st and 3rd defendants were carrying white gloves while the 2nd defendant had a screw driver, a roll of adhesive tape and a bundle of iron wire which he was carrying in a plastic bag.

4. The knife which was taken from the 2nd defendant bore the fingerprints of the 1st defendant. The 1st defendant, who was the only one of them to give evidence, said that he had not been with anyone on that day but was apprehended by police officers while strolling in the vicinity. He denied entering the Shui Hing Building and said that he was carrying neither knife nor gloves. He suggested that the police officers might have put his fingerprints on the knife which the 2nd defendant was carrying when he was unconscious in the police station after having been assaulted.

5. The trial judge rejected the evidence of the 1st defendant. Having given consideration to the discrepancies in the evidence of the police officers, the trial judge was, nonetheless, satisfied that they were witnesses of truth. He accepted that the arrest took place in the lobby of the Shui Hing Building and that the knives, gloves and other articles were found as alleged by the police.

6. The 2nd defendant made a cautioned statement admitting that the three had embarked upon an expedition to rob. This was, of course, not admissible against the applicants and the trial judge did not use it against them.

7. The judge was satisfied that he could infer the existence of a conspiracy to rob from five matters: firstly, the similarity of dress of the applicants and the other men; secondly, the knives, two of which were virtually identical; thirdly, the carrying of the gloves; fourthly, the "affinity" between the four men who crossed the road and entered the building in concert; fifthly, the finding of a screw driver, wire and tape on the 2nd defendant. The trial judge stated that he was satisfied that "these are items which may be used in robberies just as they could be in burglaries". He was satisfied, to use his analogy, that these circumstantial strands, when put together, constituted a rope strong enough to support a charge of conspiracy to rob.

8. The thrust of this appeal as argued by Mr. Macrae for the 1st defendant and Mr. C.K. Wong for the 3rd defendant was, simply put, that these strands were not. sufficiently strong to support a conclusive inference of conspiracy to rob as opposed to a conspiracy to steal or to burgle.

9. Mr. Macrae submitted that while the judge addressed himself to the existence of a conspiracy, he failed to address himself to the object of that conspiracy. We do not agree. That the men were parties to a serious criminal conspiracy cannot be doubted. Indeed it was not submitted otherwise. The possible conspiracies suggested in Mr. Macrae's grounds of appeal were stealing, burglary and robbery. During the course of his address, Mr. Macrae added conspiracy to wound.

10. In our view the conspiracy must have gone beyond one the object of which was simply to steal or to burgle. We are so satisfied because of the strong inference that can be drawn from the carrying of knives, wire and tape that the conspirators must have had in contemplation that persons would, if necessary, be subdued. This must have been the purpose for which such articles were carried. We find nothing in the argument that the trial judge by his observation that these are items which could be used in robberies just as they could be in burglaries indicated the existence of a doubt which called into question his own finding of a conspiracy to rob. Even if burglary was an aim of the conspiracy, we are satisfied that these articles clearly indicate that the conspiracy involved an agreement to use subjugating force if such became necessary, and that it was, therefore, properly held to be a conspiracy to rob. The applications for leave to appeal against conviction must be dismissed.

11. The 1st defendant also appeals against the sentence which was a totality of four years and three months. We are quite satisfied, given that these men had conspired to rob and had embarked upon the execution of the conspiracy, that the sentence of four years and three months was proper. Indeed, it could not be said, in any way, to be too severe a sentence.

12. The application for leave to appeal against sentence is therefore dismissed.

Representation:

Mr. G. Forlin (Crown Prosecutor) for the Respondent.

Mr. A. Macrae (Messrs. Paul Kwong & Co.) for the 1st Defendant (re conviction and sentence).

Mr. C.K. Wong (D.L.A.) for the 3rd Defendant (re conviction on 1st charge)