The Queen v. Ng Yuk Ki and Others

CACC000827/1983

Criminal law - robbery- case presented on basis that offence was robbery or nothing - judge leaving alternative verdict of "Not guilty of robbery but guilty of handling stolen goods" - no warning given to counsel that this would be done - direction not indicating that handling must be otherwise than "in the course of the stealing" - jury convicting of handling - conviction quashed.

IN THE COURT OF APPEAL

BETWEEN

Coram: Sir Alan Huggins, V.-P., Barker & Fuad, JJ.A.

Date of Judgment: 17th January 1984

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This judgment is concerned solely with the 4th Defendant. Four defendants were charged with robbery. There were other charges which are not relevant to this judgment.

2. The 4th Defendant was the wife of the 3rd Defendant. The case against her was that she was a planner of this robbery (which took place in a jewellery shop), that she provided a gun and other material for the robbery, which was committed in fact by the 1st and 2nd Defendants and by a man called Chan Hung, who drove the get-away car.

3. There was evidence by the 1st Defendant, who pleaded Guilty in the course of the trial and was called by the prosecution. His evidence was, first, of various meetings which took place before the robbery and then that after the robbery the 4th Defendant was in what I will call a "transfer get-away car" with her husband (the 3rd Defendant) and a man called To Cheung-ying. The 1st Defendant said that the stolen goods and the gun which had been used in the robbery were then handed to the 4th Defendant. Mr. To confirmed that something was handed by the robbers to the 4th Defendant.

4. Now the whole case for the prosecution was run on the basis that the 4th Defendant was guilty of robbery. In the course of his summing-up the learned judge left to the jury the possibility that she was guilty only of handling stolen property. Counsel for the Crown had never suggested that this was a possible verdict. Counsel for the defence at the start of his address to the jury had clearly indicated that he was not going to address the jury on the basis of handling but only on the basis of robbery. I say that it was clear. It was certainly clear to any lawyer that that was what he was saying: he did not mention handling expressly. The evidence was such that, if the 1st Defendant was believed in toto, this was clearly a case of robbery against the 4th Defendant. The only basis upon which handling could be found was if not only was the 1st Defendant disbelieved as to the earlier part of his evidence but the jury was satisfied that the 4th Defendant was not a robber. It was not merely enough that the jury should return a verdict of "Not Guilty" of robbery: they had to find as a fact that she was not a robber, because the offence of handling cannot be committed by a robber who is still "in the course of the stealing". This was not how the matter was left by the judge. He merely said that it was enough if they found the 4th Defendant not guilty of robbery: they could consider the offence of handling. In our view that was not sufficient.

5. We think that the learned judge was ill advised not to make it quite clear, at the time that counsel was addressing the jury, that in his view handling was an open question. Had he done so both counsel for the Crown and counsel for the defence could have addressed him and emphasis would no doubt then have been laid on a number of points including this one, that there had to be an actual finding that the 4th Defendant was not involved in the robbery. The judge told the jury that a verdict of Guilty of handling was not a "soft option". That did not sufficiently, in our view, draw the attention of the jury to the difficulty which was involved in this case and it is material that the jury returned a verdict of "Not Guilty" of robbery by a majority of only five to two but that they were all convinced that she was guilty of handling. That shows an inconsistency and that two members of the jury at least had not really understood the option which was being left open to them. For this reason we find it unnecessary to go into any of the other matters which it was sought to argue on behalf of the 4th Defendant and we are satisfied that the conviction must be set aside. We therefore grant the application. We allow the appeal and set aside the conviction, and we are of opinion that in all the circumstances of this case the Crown is right not to ask that the matter be retried: the evidence was such that we think that to order a re-trial would in any event unjust. Therefore the sentence is set aside and this Appellant will be discharged in respect of this offence, but of no other.

17th January 1984.