HKSAR v. Wong Hoi Chung and Another

CACC 168/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 168 OF 2005

(ON APPEAL FROM HCCC NO. 58 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Tang JA and Suffiad J

Date of Hearing: 8 June 2006

Date of Judgment: 8 June 2006

Date of Reasons for Judgment: 21 June 2006

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REASON  FOR  JUDGMENT

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

Background

1.On 13 January 2005, following a trial before Beeson J, Wong Hoi-chung (D1) was convicted by a jury of robbery (count 2) and conspiracy to rob (count 5).  Wong Chi-hung (D2), the brother of D1, was also convicted on count 5.

2.The total of the sentences imposed on D1 in respect of counts 2 and 5 amounted to 18 years’ imprisonment.  The judge also imposed a 15-month concurrent term on a charge (count 8) of possessing a forged identity card to which D1 had pleaded guilty at the outset of his trial.  D2 was sentenced to 15 years’ imprisonment.

3.D1 sought leave to appeal against conviction on counts 2 and 5 and D2 sought leave to appeal against conviction on count 5.  The applicants also lodged applications for leave to appeal against sentence as to which they did not have the benefit of legal representation.

4.At the conclusion of the proceedings on 8 June 2006, we dismissed the applications made by both applicants in respect of conviction and sentence.  We now give our reasons for so doing.

5.The original indictment related to five defendants and a total of eight counts.  Following applications for severance, the judge, for good reason and in the proper exercise of her discretion, severed the indictment, leaving D1 and D2 to be jointly tried on five of the original counts.

6.Count 1 alleged the murder on 3 March 2003 of Chan Wai-leung, a security guard.  Others, including (D3) Chu Hung-kin (alias Lau Ching-chuen), were named in this count.  Whilst D3 was later separately tried and convicted of the murder, D1 and D2 in the matter presently before us were acquitted.  Count 2 was closely linked to the murder.  This related to the robbery of Suen Wai-chung, a security guard, from whom $800,000 was taken at the same time and place as the murder of his colleague.  D1 was convicted on the 2^nd count but the jury acquitted D2.

7.Counts 3 and 4 were allegations of robbery on 15 April 2002 and attempted robbery on 27 December 2002, respectively, on which the jury acquitted both applicants.

8.The 5^th count, on which the jury convicted D1 and D2, alleged a conspiracy with others to commit robbery between mid-May and 10 June 2003.

Case for the prosecution

9.The prosecution relied almost entirely upon the evidence of an accomplice, Cheung Kai-chung (Cheung), who pleaded guilty before the start of the trial to thirteen counts, all of which were robbery-related, including the 3^rd, 4^th and 5^th counts preferred against D1 and D2.  Cheung gave evidence on these counts as a convicted prisoner and an alleged accomplice of D1 and D2.  In relation to counts 1 and 2, Cheung gave evidence under immunity.  His sentencing had quite properly been postponed until after the trials in which he was due to give evidence.

10.On the three occasions covered by the allegations made in counts 1 to 4, guards escorting money on behalf of the Hong Kong Jockey Club were attacked and considerable violence was used.  The murdered guard in count 1 died of multiple knife wounds.  Two robberies (counts 2 and 3) were successfully accomplished and a total of $2.7 million was taken.  The attempted robbery in count 4 failed when the robbers found themselves unable to open the cash-case in which the money was being carried.

11.The conspiracy in count 5 amounted to an allegation that the same gang was planning another similar robbery which was due to materialise on about 9 June 2003.  In order to overcome the problem of being unable to open the cash-case they intended to take, D2 agreed that he would buy an axe.  However, following a period of police surveillance in late May and early June 2003, the timely intervention of the police prevented this robbery from taking place.  The applicants were arrested on 9 June 2003 and an axe was found hidden in the car D2 had been driving immediately before his arrest.

12.Apart from the evidence given by Cheung, which was heavily disputed, most of the facts concerning the robberies were otherwise uncontroversial.  The general tenor of Cheung’s evidence was that D1 and D2 masterminded this series of robberies, largely keeping themselves in the background. Meanwhile, acting on their instructions, Cheung’s role was to recruit men from the Mainland to carry out the physical task of robbing the security personnel who delivered cash transported in armoured vehicles.

13.It will be necessary later, when dealing with the main ground of appeal, to go into the details of the evidence called by the prosecution in greater depth.

Defence

14.D1 gave evidence that after he had met Cheung in a karaoke lounge in Shenzhen, he used his speedboat to bring illegal immigrants to Hong Kong.  He asserted that the people he brought to Hong Kong were going to become illegal workers for Cheung’s triad boss and were not to his knowledge being brought to Hong Kong for the purpose of carrying out robberies.  In addition, D1 called three alibi witnesses, his sister-in-law and two business associates, to confirm his evidence that he could not, in any event, have been at the scene of the murder and robbery as alleged in counts 1 and 2.  D1, supported by his alibi witnesses, testified that he was worshipping at the temple in Lei Yue Mun at the material time.

15.Although D2 did not give evidence himself, he called three witnesses two of whom, in combination, provided evidence that D2 was a construction worker who, in the course of his work on site, would need to use an axe to remove the wooden framework (or “formwork” as it was called) in ceilings after it had fulfilled its purpose and to “peel away” newly set concrete which had blocked the holes where screws had to be inserted (appeal bundle page 872).  This evidence was intended to counter the prosecution’s suggestion (in the context of the 5^th count) that the axe found in D2’s car at the time of his arrest on 9 June 2003 was for use in the furtherance of a robbery.

Grounds of appeal

(1) Inconsistency of verdicts

16.The principal ground of appeal raised for each of the applicants amounted to a criticism that the jury’s verdicts of not guilty were so inconsistent with the guilty verdicts that the convictions should be regarded as unsafe or unsatisfactory.

17.This contention was encapsulated in Ms Moosdeen’s first ground of appeal where she submitted that the jury, having acquitted D2 on the 1^st, 2^nd, 3^rd and 4^th counts “must have rejected and disbelieved the tainted witness PW1 [Cheung]”.  There could, she argued, be no justification for the jury to have convicted D2 on the 5^th count when this rested entirely on Cheung’s evidence.

18.A second ground raised on D2’s behalf, with which we can deal at the same time, alleged that there was in any event insufficient evidence on which to convict D2 on the 5^th count.

19.Mr Mitchell-Heggs, on D1’s behalf, called it “incomprehensible and contrary to logic” that D1 should have been convicted on the 2^nd count (robbery) and yet be acquitted on the 1^st count of murder when both offences were committed at more or less the same time in the course of the same joint enterprise.  Mr Mitchell-Heggs added that the acquittals on counts 3 and 4 further emphasised the jury’s dissatisfaction with Cheung’s evidence about D1’s role.  This case, he asserted, was essentially an “all or nothing” allegation made by Cheung that D1 had been a planner and organizer throughout this series of offences and he reminded us that the judge had called this a “single-issue case … to decide on the credibility of PW1 [Cheung]”.  He submitted, therefore, that the convictions on counts 2 and 5 were “without foundation” in the face of the acquittals on the other counts.

20.Before turning to the evidence on the 2^nd and 5^th counts of the indictment with a view to finding the possible evidential distinction which clearly the jury felt able to draw from all the other counts where the jury acquitted, it is desirable, firstly, to look at the way the judge directed the jury about the need to give separate consideration to the evidence on each count and as against each of the applicants on each count.  The judge said:

“The next thing that you should note is that there are five charges and two defendants that you have to deal with.  Each faces the five counts set out in the indictment.  They are charged jointly with each other and the named persons and the unknown people referred to in each charge.

Although the accused are named together in the charge you must examine their individual cases separately, as if each of them was appearing alone in front of you.  The accused are being tried together in this court but that is done as a matter of administrative convenience.  You must realise that their individual cases are separate and you must consider the charges separately against each of them.

It is important that you look at the evidence against and for each accused on each charge.  Just because they are named together in the charge does not mean that if you find one of them guilty you must find the other guilty as well.

You may find it helpful in your deliberations to consider and weigh the evidence relating to the 1^st accused on each of the charges, and then afterwards, as a separate exercise, consider the evidence relevant to the 2^nd accused on each charge.

As you will have realised, much of the evidence is common to the cases of each accused.  Some evidence relating to one accused may overlap with evidence that relates to the other.  Some witnesses have given evidence that is of value to both accused.  But remember, the important parts of the evidence may be relevant to one accused only, so consider the separate items of evidence for each accused even if that might mean you have to repeat your examination of some parts of the evidence.

As a result of your deliberations you may find one or both of the accused guilty of the charges they face, or you can acquit one or both of the accused on one or more of the charges.  The fact that you find one accused guilty, or not guilty, of a charge which is a joint charge does not mean that you must reach the same verdict in respect of the other accused.

Now I have suggested one way you could deal with the evidence: that you give separate attention to the case of each accused.  But you do not have to follow the method that I have suggested.  You can follow your own methods to ensure that you look separately at each of their cases.  But whichever method you do use, treat each accused as if he was being tried alone.  Remember that it is a matter of convenience that they are being tried jointly in this way, and, as jurors, you have a duty to treat them individually.” (Appeal bundle pp. 82-83)

21.Plainly, in our view, to have failed to give these directions would have been, in the circumstances of this case, a material omission.  Whilst Cheung provided the evidence on each count of the applicants’ complicity, it was nevertheless for the jury to determine in each case whether there was sufficient reliable evidence on which to convict.  In this sense, this was not an “all or nothing” case.  Importantly, as we came to observe on the counts where the jury convicted, there was some material, extrinsic to Cheung’s evidence, which they may have relied upon as supporting Cheung’s account.

22.Turning to D1’s conviction on the 2^nd count of robbery, looked at in the light not only of D2’s acquittal on that count but also the acquittal of them both on the 1^st count of murder, it is firstly necessary to examine closely the evidence given by Cheung as to the extent of the involvement of each applicant.  On Cheung’s account, the part allegedly played by D2 was far smaller than D1’s as a short overview easily demonstrates.

23.Cheung’s evidence on count 2 was that D1 had got in touch with him by telephone.  As a result, they met in a restaurant where D1 spoke of robbing the crew of an armoured van which was being used to convey Jockey Club betting money to one of its premises.  This meeting was followed by another several days later when Cheung met with both the applicants and D1 repeated his plan.  He said that they would need an axe to prevent a repetition of what happened on an earlier occasion when the robbery failed because it had not been possible to hack open the money box.  D2 said he would buy the axe by pretending to need one as a construction site worker.

24.Two days later, D1 met Cheung and someone known as Cheng Chi-yung in order to carry out reconnaissance of the area where the robbery was to be carried out.  The same thing occurred a few days later when D1 also informed Cheung that his brother (D2) had fixed 3 March 2003 as the date for the robbery to take place.  After that, D1 told Cheung to call up a group of Mainlanders to carry out the robbery.  These men were required to wait at Dangan Island and, on 2 March 2003, D1 telephoned Cheung to say he was going to collect them.  He used his speedboat to bring the Mainlanders to Lei Yue Mun pier where Cheung was waiting to meet them.  Cheung then went to a stone house in Lei Yue Mun with D1 and the Mainlanders.

25.Cheung also made reference to D2 in the course of the events he alleged had taken place on 2 March 2003.  He said that he had met D2 who told him that his brother (D1) would give him (Cheung) the “tools required for the robbery”.  He alleged also that D2 went to keep watch for the Marine Police while Cheung went to the pier to meet D1 and the Mainlanders.  Later, Cheung telephoned D2 to say that they had reached the stone house at Lei Yue Mun safely.  D2 said that meals should be purchased for the Mainlanders.

26.On 3 March 2003, at sometime after 10.00 am, Cheung said that D1 provided him with a loaded pistol, a large axe and two knives for distribution to the Mainlanders.  During the afternoon, D1 telephoned Cheung to give instructions about where the Mainlanders should go.  D1 later drove Cheung to the vicinity of the intended robbery while the Mainlanders went in a white van driven by Cheng Chi-yung.  D1 then told Cheung to show the Mainlanders the location for the robbery and Cheung was left to instruct them when to effect the robbery.  After the robbery had been carried out, D1 and Cheng Chi-yung drove Cheung and the Mainland robbers back to Lei Yue Mun where the stolen money was shared inside the stone house.  Later, D1 took the Mainlanders back by boat.

27.Evidence about the robbery itself was provided by an eyewitness who was the colleague of the murdered security officer.

28.In saying, as we have already, that it was immediately apparent from the evidence given by Cheung that the plan to commit the robbery in count 2 and the arrangements leading up to its actual commission involved D1 to a far greater extent than D2, we have in mind that Cheung’s evidence was not only that D1 hatched the idea and went on reconnaissance expeditions with him to view the location; he also picked up the Mainland robbers by boat and delivered them back afterwards; he provided some of the transport to take the gang to and from the robbery location and he supplied the weaponry, including an axe, which was needed to carry out the offence.

29.By contrast to the role played by D1, D2 was not apparently at or near the scene of the robbery when it occurred and, putting the case against D2 at its highest, he had said in Cheung’s presence that he would buy the axe which the robbers would need to break open the money-case, he had kept a lookout for the Marine Police when D1 was bringing in the Mainlanders and he had given an instruction by telephone that the Mainlanders should be fed.  There was no more against D2 than this except that D1 allegedly told Cheung that D2 had chosen the date for the robbery.  In our opinion, it was open to the jury to find that this was insufficient material on which safely to convict D2 of the robbery.  It follows also that such a finding did not necessarily carry with it the implication that Cheung had made up a false allegation against D2.

30.D1’s conviction on the 2^nd count, based on the considerable body of evidence given against him by Cheung, has also to be viewed in the light of D1’s acquittal on the 1^st count of murder which, in the circumstances, could be regarded as a somewhat fortunate result for him.  D1 had, after all, provided the weaponry for the robbery and at least one of the knives was used to kill one of the guards.

31.In D1’s case, leaving aside the murderous nature of the weapons, it is apparent that there had at no stage during D1’s discussions with Cheung been any suggestion of an intention to kill or cause really serious bodily harm in pursuance of the robbery.  Had there been talk of that kind, D1’s acquittal would have been of greater significance in the present context.  However, bearing in mind that D1 took no physical part in the robbery and also that Cheung had been given an immunity from prosecution on counts 1 and 2, we do not find it difficult to understand the jury’s approach to the murder allegation against D1 despite their acceptance of his participation in the eventual robbery.

32.In addition, we have not, of course, overlooked the fact that the jury acquitted both applicants of taking any part in the earlier robbery and attempted robbery reflected in counts 3 and 4 which were respectively committed on 15 April 2002 and 27 December 2002.  On these counts, Cheung’s evidence about the roles played by D1 and D2 revealed rather less direct involvement on their part although, in general, the account he gave was similar to the account given about the robbery in the 2^nd count.  It suffices to repeat the way in which the judge summed up the whole of this aspect of the prosecution’s case to the jury.  She said:

“In relation to [count 3] the initial robbery [Cheung] told us about – the one in April of 2002 – he said that initially he was told that he was told to go there by himself and he was very nervous about doing that.  It was explained to him that the 1^st and 2^nd accused could not do that because they were known at that particular betting centre and might be detected.

He described, in respect of each of these offences, the preparations that were made and the 1^st defendant said that they would not participate physically in the robbery.  That appeared to have been the case through all the robberies, though of course in some, the 1^st accused was keeping lookout or guarding or standing by a vehicle.

When [Cheung] expressed his nervousness, he said he was unable to do it if the 1^st and 2^nd accused did not go, but the 2^nd accused told him not to be afraid because it would be Hong Kong persons who would offer assistance at that time.  Then later, he describes meeting Au Kam-tong who was the person with whom he eventually stayed and who gave assistance as well.

In respect of the first robbery, the initial plan was that after the robbery had been committed, they would run away or they would flee by means of a taxi and it was at that point the question arose of whether or not this hotel room was to be employed as part of the scenario.  He said that it was Au Kam-tong who ‘took us to the room’ and that was done on the instruction of the accused.  It was later at that hotel that the money was first divided up.

He reported that the robbery was successful and he was told at that time not to return to Lei Yue Mun for fear that the taxi driver might notice them and make a report to the police at a later stage.  It was for that reason that the solution was devised that they would meet at the hotel.

He told us that he had a share of $190,000.  There were arguments about whether or not …there was somebody else involved who might have had a larger share; whether he himself had a larger share.  It was his job to instruct the Mainlanders and he carried out instructions that were handed on to him mainly by Wong Hoi-chung [D1].

He gave a similar account of how the December robbery [count 4] was organised.  The date was fixed for the 27^th.  He was asked to inform the Mainlanders.  They were asked to wait at the island.  In respect of that robbery, he said that he was told that the 2^nd accused would be on hand to watch out for any marine police in relation to them bringing in the Mainlanders.  He [Cheung] arranged for the distribution of the knives and pistol to the three Mainlanders who were involved.  That was the robbery that was unsuccessful and they were unable to open the cash case.” (Appeal bundle pp. 105-106)

33.The evidence on counts 3 and 4 stood entirely alone.

34.Returning to count 2, it may not have been entirely without importance to the jury that there was one other piece of evidence in D1’s case which showed that twenty-eight days after the robbery in count 2 D1 paid $55,000 for a Mercedes car.  D1’s evidence had been that he was at that time in a poor financial state and, because of this, he had needed to borrow the money for the car from his wife.  There is no saying how the jury may have regarded the evidence given on this aspect of the case.  All that can be said is that it was capable of providing some support, however minimal, for Cheung’s account that D1 had recently come into money.  It is right to add, however, that the judge advised the jury to take a cautious approach to this evidence saying that they might not find this evidence “particularly helpful”.

35.Turning to the conviction of both applicants on count 5, it was again noticeable that there was some supporting evidence for Cheung’s account which may, in the collective mind of the jury, have strengthened his evidence.  On this occasion, if accepted as it clearly was, the additional evidence strengthened the case not only against D1 but against D2 also.

36.Cheung gave evidence that while he was in the Mainland he was telephoned by D1 who asked him to return to Hong Kong.  Again, Cheung was asked to recruit several people for the purposes of a robbery and D1 asked him to go to Dangan Island and wait there to be collected.  D1 duly picked up Cheung on 30 May 2003 in his speedboat.  Later, at D1’s home, when they were discussing the proposed robbery, D1 said that a pistol was available and that knives would be bought later.

37.It was an agreed fact at trial that police surveillance on 30 May 2003 put D1 in Cheung’s company.  They were seen in D1’s vehicle in Sai Kung and again in Lei Yue Mun.  Police again observed D1 with Cheung on 31 May 2003 at a tea house in Lei Yue Mun.

38.On 4 June 2003, Cheung said that he discussed with D1 and D2 the plan for a robbery on board a boat near the pier at Chai Wan.  Cheung was told by D2 that if anything needed to be dealt with “he would have it fixed” and that Cheung should follow D1.

39.Shortly afterwards, D1 went with Cheung to Aberdeen for the purposes of reconnaissance.  On 5 June 2003, Cheung went to have a look at the movement of armoured security vehicles on his own as D1 had said he was not free to go with him.  Cheung went to Shau Kei Wan and Chai Wan and reported back to D1 afterwards.  On 6 June 2003, he went with D1 to Aberdeen but the venue was regarded by D1 as unsuitable for a robbery.  On 7 June 2003, Cheung again went to Shau Kei Wan and Chai Wan and he was able to inform D1 of the arrival time of a security van in Shau Kei Wan.

40.On 8 June 2003, it was an admitted fact that at 6.33 pm police observed D1 leaving his home at Tseung Kwan O Tsuen in the company of Cheung.  Cheung described how he went with D1 to Temple Street where D1 bought two knives.  D1 also asked Cheung to buy four short-sleeved shirts, two briefcases and one expandable nylon bag.

41.On 9 June 2003, D1 collected the four Mainlanders and brought them in his speedboat to the pier at Lei Yue Mun where Cheung went to meet them.  Cheung took the Mainlanders to a stone house.  Later, he saw D1 again.  D1 said that he was waiting for his brother (D2) to buy an axe.

42.Soon after this, Cheung bought a meal for the Mainlanders and returned to the stone house.  When he left the stone house he found that police were waiting for him and he was promptly arrested.

43.Soon afterwards, at about 3.20 pm, D2 was arrested after getting out of his car.  His vehicle was then searched and in the boot, under the carpet, police found a long-handled axe which had newspaper tied round the metal parts.

44.It was an admitted fact in D1’s case that between 30 May 2003 and 9 June 2003 his mobile telephone was found to have a total of forty-three calls either made to or received from Cheung’s mobile telephone.  It is not without interest, in this regard, that Cheung had given evidence about the practice of using SIM cards only for the duration of a robbery after which they were thrown away.

45.There can be little doubt that the finding of the axe in D2’s car and, as against D1, the agreed surveillance evidence and the series of telephone calls between D1 and Cheung, might well have been regarded by the jury as important independent support for the evidence given by Cheung on the 5^th count of conspiracy to rob.  This is particularly so in the light of the strong warnings, rightly given by the judge in her summing up, about the particular care which the jury should exercise in their approach to Cheung’s testimony.

46.There was, in our opinion, no substance in the suggestion that Cheung’s evidence had necessarily been rejected on the counts where the jury acquitted.  The jury were entitled on those counts, where they found nothing which was capable of supporting any part of Cheung’s account, to find that there was not enough material on which safely to convict.  The jury had received the clear directions we have set out already which dealt with the importance of looking separately at the evidence on each count and against each of the applicants.  Plainly, the jury had conscientiously applied these directions in the course of their deliberations so that they did not simply lump together their verdicts on all the counts as a less meticulous jury might have done once they had convicted both the applicants on the 5^th count.

47.We were referred, in the course of argument, to a number of authorities which deal with the approach to be taken towards verdicts which are, on the face of them, inconsistent but we were satisfied, on close analysis, that no inconsistency was established and certainly none that called for interference on the part of this court.  Whilst, as we have indicated, D1 may regard himself as fortunate to have been acquitted of the murder in count 1, in our view the jury’s verdicts against D1 on count 2 and against D1 and D2 on count 5 were perfectly understandable and in no sense irrational.

48.With regard to Ms Moosdeen’s submission that there was insufficient evidence to convict D2 of conspiracy, the axe found in his car was clearly an important discovery in the context of Cheung’s account of what had been planned.  Cheung said that because the knives and axe used in an earlier robbery had been disposed of, D2 had said he would buy the axe they needed for this one.  The condition of the axe found by the police hidden in the boot of D2’s car hardly, we noted, fitted with an axe that had been used on a construction site which is the way D2’s case was put forward to account for its presence in his car.  When we saw the axe in the course of the proceedings, its condition was pristine.  Even the rubber sheath over the blade was present as it would have been when newly purchased.  In this context, we were unable to accept Ms Moosdeen’s contention that there were signs of wear and tear on the axe.

49.Ultimately, having regard to the account given by Cheung, supported as it was by the evidence of the finding of the axe in D2’s car, there was in our view ample evidence before the jury on which to convict D2 of conspiracy to rob.

(2)               The summing up

50.Ms Moosdeen, in a final ground of appeal, submitted that the judge’s directions to the jury on joint enterprise, common intention and conspiracy were “equivocal” and that the judge “failed to distinguish them in the context of each count separately and in particular to the 5^th count”.

51.Ms Moosdeen’s concern appeared to have been that the judge’s directions on conspiracy were insufficiently “compartmentalised” because the directions given to the jury concerning joint enterprise and common intention on counts 1 to 4 may have led to some confusion when the jury came to consider conspiracy in the context of the 5^th count.

52.As to this, we found Ms Moosdeen’s argument somewhat difficult to understand.  It seemed to us that the judge had made the relevance of each direction on these aspects of the law, and the counts to which they applied, abundantly plain to the jury.

53.Ms Moosdeen did, however, add a further criticism of the summing up which amounted to a complaint that nowhere did the judge say that if the jury disbelieved Cheung’s evidence on a material issue, they should be slow to accept his evidence on any other important issue.  This had, of course, little to do with the real essence of this ground of appeal but it suffices for present purposes if we say that the judge might well have added words to the same effect as those suggested by Ms Moosdeen.  However, the jury were given, at various stages of the summing up, ample warning about the matters which should cause them to be on their guard in their approach to Cheung’s evidence.  In particular, his motivation for giving evidence was that he was anxious to receive immunity on the 1^st count in order to avoid a life sentence for murder and he was content to give evidence for the prosecution on the other counts so that he could receive a greatly reduced sentence.  Immediately before the jury were sent out to consider their verdicts, the judge briefly touched upon this subject again, saying:

“… but the important point is that this is a single-issue case.  The question is, what is your view of the credibility of PW1 [Cheung].  As I have said, you have listened to the case for a very long time and you had him under your eyes for a very long time as well and you have seen how he reacted to questioning.  You have heard his answers.  I have reminded you about a little of what he said and counsel reminded you as well.  You must be sure, very sure about this witness before you rely on any of his evidence.

As I said, having said that, if you are satisfied PW1 is a credible witness despite all his faults and despite all the background, you are entitled to rely on his evidence even if it is the only evidence before you on a particular point.” (Appeal bundle p. 124)

Conclusions on convictions

54.For the reasons we have provided, we found no substance in the applications by D1 and D2 for leave to appeal against conviction and these were accordingly dismissed.

Sentence

55.Although D1 and D2 had also sought leave to appeal against sentence, D1 indicated that he did not wish to pursue his application and we formally dismissed this.

56.Turning to D2’s written application, he complained that his sentence was too severe.  In court before us, he merely reiterated his claim of innocence.

57.The conspiracy in count 5, involved a plan to rob the security crew of an armoured vehicle.  A firearm and knives were to be used to carry out the robbery and an axe was to be used to crack open the cash-case.  D2 was one of the instigators behind the offence and as such he was playing for high stakes.  This was not the sort of conspiracy for which a starting point of below 15 years’ imprisonment could realistically be considered.  In such circumstances, any mitigation there may have been would necessarily have carried little weight.

58.Accordingly, D2’s application was dismissed.

Mr Jackson Poon, SGC, of the Department of Justice, for the Respondent.

Mr Anthony Mitchell-Heggs, instructed by Messrs Jal N Karbhari and Co., assigned by Director of Legal Aid, for the 1^st Applicant (D1) (re: conviction).

1^st Applicant (D1), in person (re: sentence).

Ms Munira Moosdeen, instructed by Messrs Littlewoods, assigned by Director of Legal Aid, for the 2^nd Applicant (D2) (re: conviction).

2^nd Applicant (D2), in person (re: sentence).