R. v. Cheng Siu Keung and Others

CACC000737/1993

IN THE COURT OF APPEAL

1993, No. 737
(Criminal)

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Coram: Hon Yang, C.J., Power, V.-P. and Mortimer, J.A.

Date of hearing: 6 June 1995

Date of judgment: 6 June 1995

Date of handing down reasons: 29 June 1995

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J U D G M E N T

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Hon Yang, C.J.:

1. In this judgment we are concerned with the three applicants' applications for leave to appeal against conviction for conspiracy to rob only. The first applicant (A1) and the second applicant (A2) abandoned their applications for leave to appeal against sentence. The third applicant (A3) does not seek leave to appeal against his sentence.

2. All three applicants were convicted of conspiracy to rob. A3 was additionally convicted of possession of arms without a licence. At the hearing he abandoned his appeal against his conviction of this offence.

3. The case for the prosecution was that the three applicants together with another co-accused, LAM Kwok-hung, between 1 June and 18 July 1992 conspired to commit a robbery in stealing some ten million Hong Kong dollars from the custody of the security personnel escorting cash from Macau to Hong Kong at the Macau Ferry Terminal.

4. The prosecution case against the accused relied entirely on their cautioned statements. None of the accused elected to give evidence on the general issue.

A1's Application

5. In the course of the trial electric stun guns were produced to the jury for inspection. It was common ground that the stun guns had nothing to do with the conspiracy to rob. It is submitted by counsel on A1's behalf that the production of the stun guns was highly prejudicial to the defence: Ground 2. It is further argued that in spite of the absence of an application by the defence to discharge the jury on the basis of prejudicial effect, the judge nevertheless erred in failing to discharge the jury.

6. The stun guns were found on the premises occupied by the man WONG Chee-keung (who was acquitted of this conspiracy but had pleaded guilty to the possession of these guns). These guns did not form part of the robbery which the accused was alleged to have conspired in.

7. In the absence of the jury, the judge dealt with the stun guns in the following way (p.152 of the Appeal Bundle):

"Let me say at once that although it is -- I don't find that the stun guns are totally irrelevant. What I do say, though, is that the relevance is so slight as to be vastly outweighed by the prejudicial effect. Having again read the statements, the cautioned statements of these defendants, I think that this evidence must go. I don't want to hear any more evidence about the stun guns or their characteristics.

What concerns me now though is that the jury have actually handled these weapons and I was minded to leave this matter until the time when I come to sum up and put it to them then, but I think that would be too late. They need to be told fairly promptly that this evidence is no longer before them and I am going to ask you gentlemen -- I am going to adjourn the case now and ask you to put your heads together to assist me in a formula which I can put to the jury when they come back at half past two, so that I can put it in such a way that it causes the least damage because obviously there could have been some damage already because they have looked at it."

8. Then the judge still with the jury absent, said (at p.160 of the Appeal Bundle):

"Clearly, it is my view that these objections should have been made at the beginning of the trial. And had this been done, this problem need never have arisen. However, it is now before me and I have to deal with it. I have carefully considered the application for a fresh trial and tried to balance the public interests on the one hand in avoiding massive costs and expenditure of time and that of the defendants' right to a fair trial. It is my ruling that the trial must continue. The prejudicial effect which the evidence may have on the jury can, I believe, be countered by a robust direction which I will shortly put to them."

9. Again, in the absence of the jury, the judge said these guns were very much "side issues." (p.162 of the Appeal Bundles)

10. Before his summing up the judge addressed the jury in the following way (p.165 of the Appeal Bundle):

"Members of the jury, in your absence I have heard a great deal of legal argument and the outcome is I shall have to give you some directions. I hold as a matter of law that the evidence which you have heard from these officers relating to the finding of these so-called stun guns in Wong's premises is to be taken from you. In other words, you must disregard that evidence and it is not part of the case which you will have to consider. So dismiss all that from your mind - this evidence which you have heard from these officers relating to the finding of those guns in Wong's premises."

11. The judge did not refer to the stun guns again in the summing up. It is in our view entirely a matter for the judge whether or not in all the circumstances of the case to repeat the warning he had already given to the jury or to say nothing further about it.

12. In our view the judge acted correctly in this respect. The jury were properly directed; there could be no prejudice.

13. A1's other complaint (Ground 1) is about the way the learned trial judge approached the voir dire. We have considered with care counsel's oral and written arguments on this matter and find no merit in them. There is nothing in the complaints that the judge failed to adequately deal with the police threats and assaults which A1 was alleged to have suffered, or that the judge omitted the medical evidence.

14. It was then contended that as both A1 and his wife were persons of good character and gave evidence during the voir dire, the direction in Vye [1993] 1 WLR 471, at 479 should be followed. We are of the view that a direction as to good character and its relevance is to be given in jury trials: Vye says nothing about voir dire hearings.

15. The third complaint (i.e. Grounds 3 and 4) poses the following question:

"Did the Learned Judge direct the jury appropriately when it came to the stun gun and references thereto in the cautioned statements?"

16. This question has been dealt with under Ground 2. Counsel stressed that A1's mention of stun guns should have been removed from his cautioned statements, and the judge ought to direct the jury in his summing up not to have any regard to the stun guns. He failed to do this. He also failed to inform the jury that whilst A1 had told WONG Chee-keung that certain guns were not fit for use in the robbery, those guns were not the stun guns shown to the jury. This omission constituted a fatal flaw in the summing up.

17. As we have said, in our judgment the judge's approach in this respect was correct.

A2's Application

18. A2's application consists of two grounds.

19. First, it is argued that the jury was permitted to deliberate for an unreasonable length of time, causing the jury to become confused and thus rendering the verdict against A2 unsafe and unsatisfactory. Cited in support were R. v. Akano and Amure, The Times, 3 April 1992, CA, and Archbold Vol.1 at p.1620 (1995). We have also considered The Queen v. CHEUNG Sai-hung & another [1986] HKLR 1.

20. The transcript of proceedings shows that the summing up was concluded and the jury began their deliberations at 10:53 am on 24 November 1993. At 8:30 pm, the jury returned to court to give their verdicts. However they returned a "guilty verdict" of four to three on A2. Having received the jury's guilty verdicts on A1 (six to one) and A3 (six to one on the conspiracy count and unanimous on the possession of arms count), the judge sent the jury out and held a discussion with counsel. As a result of the discussion, the jury was summoned back to court at 8:43 pm. The judge explained to them that a majority of four to three would not be accepted; only a majority of six to one or five to two could be accepted. The jury left the court room at 8:45 pm.

21. At 9:07 pm when court resumed the jury asked for one more hour to discuss. The court then adjourned at 9:10 pm. At 9:43 pm the jury returned and asked the judge "whether a person was still guilty if he had earlier agreed to rob but later withdrew". The judge having answered in the affirmative, the jury retired for further discussions. Three minutes later they returned and delivered a guilty verdict of five to two on A2.

22. There is nothing to indicate that the jury was too tired or confused, or otherwise mentally incapable of continuing with their deliberations, nor was there any application for the court to resume the following morning so as to enable the jury to refresh their minds.

23. They had made a mistake, but were not confused. Once the position was made clear to them, they quickly returned an acceptable verdict.

24. This ground fails.

25. The second ground is that A2's cautioned statement did not constitute an admission that he had actually made an agreement in relation to the charge of conspiracy to rob.

26. It is true that there is nothing in A2's statement which made a categorical admission that he had conspired to rob. The document however must be read as a whole and in context. A confession statement is not to be scrutinized and interpreted as if it were a piece of legislation. The question which the jury had to ask themselves is: acting as men and women of reasonable intelligence and common sense, can they be sure that the statement amounts to a confession of the offence charged?

27. We have no doubt that A2's statement amounts to a confession and is sufficient evidence upon which the jury might convict.

A3's Application

28. A3 made three main points.

29. First, he argued that the judge having accepted that the statements of other "accused" (namely WONG Chi-keung and TUNG Wai-leung) had been obtained by foul means by the same police officers who took his statements, his statements too should not have been admitted into evidence.

30. Second, both W ONG Chi-keung and the judge said the stun guns were irrelevant to the present case. His counsel asked that the jury to be discharged but the judge refused the application, causing the jury to be "psychologically digressed," and resulting in an injustice to him.

31. Third, it is argued that :

"The police accused me with reference to the cautioned statement that I was responsible for the introduction of WONG Chi-keung and LAM Kwok-hung to CHOI Chiu-tong and the conspiracy of the robbery. In the trial, WONG and LAM were acquitted. It proved that the accusation against me in the cautioned statement was not true."

32. Further, A3 submitted that the two counts he faced should not have been heard together, because there was nothing to show the arms in Count 2 had anything to do with the conspiracy in Count 1. Also in the summing up the judge stressed the co-accused's good characters but did not mention him, thereby indicating to the jury that he had a criminal record. Finally, he stressed the danger of relying solely on cautioned statements.

33. Dealing with A3's first ground, the judge in this ruling at the end of the voir dire gave full reasons for admitting or rejecting any cautioned statements (see Appeal Bundle p.156 - p.159). The judge was satisfied that no ill treatment was meted out to A3. We cannot flaw his ruling in respect of A3.

34. In the light of the judge's direction to the jury on the stun guns, the second ground cannot stand.

35. Coming now to the third ground, Police Constable 20242 told A3 he had reason to believe:

"You conspired with males CHOI Chiu-tong, nicknamed Ah Tong, Sei Ngan Chai, WONG Chee-keung, nicknamed Tak Chai, LAM Kwok-hung, nicknamed Ah Hung, CHENG Siu-keung, nicknamed Ah Keung, and TANG Shu-wan, nicknamed Ah Tang, to commit a robbery inside Hong Kong Macau Ferry Terminal at Shun Tak Centre, Hong Kong."

36. Under caution A3 replied that he was only responsible for introducing people to CHOI Chiu-tong. WONG Chee-keung was to take a 70 per cent share of the money robbed and he (A3) would take 20 per cent from Wong's share as introduction fee. A3 knew there was to be a robbery of at least ten million dollars transported from Macau to Hong Kong. He knew also that A2, WONG Chee-keung and LAM Kwok-hung would actually commit the robbery. He was given $14,000 to pass on to WONG Chee-keung to buy guns on the mainland.

37. Clearly there was in A3's statement an admission to conspiracy.

38. There are no merits in A3's final points and we reject them.

39. All three applications for leave to appeal against convictions are accordingly dismissed.

Representation:

Mr Nicholas Pirie (Messrs K Y Lo & Co) for A1 (D2)

Mr Jeffrey Fenton (Messrs Karbhari & Cham) for A2 (D3)

Applicant - A3 (D4) in person

Mr A A Bruce of the Attorney General's Chambers for Crown/Respondent