HKSAR v. Wong Lin Hung and Others

CAC C 52/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 52 OF 2011

(ON APPEAL FROM HCCC NO. 136 OF 2010)

_______________________

BETWEEN

_______________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The applicants, Wong Lin Hung (D1), Poon Siu Wai (D2) and Wong Kai Yang (D3) appeared before Deputy High Court Toh (as she then was) together with Wong Kwok Leung (Wong) on a charge of conspiracy to commit robbery (the 1^st charge).  It was alleged that the applicants had conspired with Lee Pau-chuen (the accomplice) to rob Wong Cheung-ho (the victim).

2.D1 faced an additional charge of possession of arms without a licence (the 2^nd charge).

3.The applicants pleaded not guilty to the 1^st charge, and D1 also pleaded not guilty to the 2^nd charge.

4.After his confession was ruled admissible, Wong pleaded guilty to the 1^st charge.  The accomplice had pleaded guilty to the 1^st charge at the committal stage and he gave evidence for the prosecution against the applicants before he was sentenced.

5.The applicants were convicted of the 1^st charge and sentenced to the respective terms of 10 years, 8 years and 8 years’ imprisonment respectively.  D1 was also convicted of the 2^nd charge and sentenced to a concurrent term of one year imprisonment.

6.The applicants sought leave to appeal against conviction only.  At the end of the hearing, we dismissed the application.  We indicated that we would hand down our reasons in due course and this we now do.

The Prosecution Case

7.The victim was a businessman, selling fuel oil to boats in Hong Kong.  His business transactions were settled in cash and large sums of cash, ranging from a few ten thousands to a few million dollars, would change hand on a daily basis.  After collecting the cash, the victim would return, in his private car NP 6223, to his office at Hong Kong Plaza in Western District before depositing the cash into the bank.  The timing and routes taken to collect the cash were never fixed and were arranged by the victim personally on each occasion.

8.The victim had known the accomplice for over 10 years through the introduction of a friend and they last met for a meal about 10 days before 3 August 2009.

9.On a tip-off, the police mounted a surveillance operation since mid-July 2009.

10.In the mornings of 27 and 29 July 2009, the applicants were seen in the vicinity of Café de Coral near the victim’s office at Hong Kong Plaza.  From where they were, the applicants would be able to observe the victim driving past Café de Coral to enter the car park of Hong Kong Plaza.  On both dates, the applicants, having observed the victim arrive at Hong Kong Plaza, left the scene at 10.30 am and 10.57 am respectively.

11.On the 2 and 3 August 2009, the victim had collected cash totalling over HK$1.5 million and RMB200,000.  On 3 August 2009, the victim left his home at Po Lam Estate in Tseung Kwan O and drove to his office at Hong Kong Plaza via the Eastern Harbour Tunnel.  He arrived at about 10 am.

12.Wong was monitored by the police between 7.40 am and 9.14 am on 3 August 2009 and was seen travelling from Kin Ming Estate to Po Lam Estate in a taxi driven by Ip Kam-piu (Ip).  They waited near the car park in Po Lam Estate.

13.When the victim’s car left Po Lam Estate at 9.12 am, Wong followed him in the taxi from Lei Yue Mun to Hong Kong via the Eastern Harbour Tunnel to Gloucester Road.  At 9.43 am, the police intercepted and arrested Wong together with Ip in his taxi at Gloucester Road near Tonnochy Road.

14.At or around the same time, another team of police officers arrested the applicants at Café de Coral near Hong Kong Plaza. The police recovered a black bag from D1 and there was an electric stun gun and other personal items inside.  Another black bag recovered from D3 contained five plastic straps, a roll of adhesive tape and other personal items.

15.There were a large number of telephone calls between the three applicants, Wong, the accomplice and Ip on 27 July, 29 July, 2 August and 3 August 2009.  There were also telephone calls between the accomplice and Cheng Wing-sang.

16.Further plastic straps similar to the five recovered from D3’s bag were found at D3’s residence and they could have originated from the same source.

17.The stun gun recovered from D1 could function normally and could discharge a voltage that could form an electric arc to subdue a person at any time.  A charger which fitted the stun gun was also found at D1’s residence.

18.The accomplice, who gave direct evidence against the applicants, was aged 56 and was a taxi driver.  He said he met the victim many years ago through Chang Muk-yin (Chang) who lent money to taxi drivers to earn interest and Chang had once told him that the victim’s business was big with a turnover of $2 to $3 million.

19.The accomplice said he met D1 (another taxi driver known to him as Tai Hung) in 2007 and introduced him to Chang to obtain a loan.  According to the accomplice, D1 left the taxi company in February 2009 without repaying the loan to Chang and Chang offered a bonus of $10,000 to the accomplice to get D1 to repay the loan.  The accomplice said D1 also owed him $25,000.

20.The accomplice said he met D1 in July 2009 in Sun Wee Kong Restaurant and he asked D1 for the repayment of loans.  D1 asked for time, but admitted that he was broke.  D1 further said that he had obtained a stun gun from Shenzhen and intended to use it to rob mahjong players and that he had a group of “brothers” who could help.

21.The accomplice further said that out of a momentary greed, he told D1 that the victim would collect $2 to $3 million and keep the money in his car.  The two of them then went to the car park in Po Lam Estate where the victim’s car was identified.

22.The accomplice said he told D1 on 20 July 2009 to desist from the plan and asked him not to mess with the victim as he was guilty conscious, but D1 said he and his “brothers” had been following the victim and expenses had been incurred.  D1 further warned the accomplice not to report the matter to the police or else his wife and children would be in danger.  The accomplice said he was scared.

23.According to the accomplice, the day after he told D1 to desist from robbing the victim, Sai Wing called him, saying that he was D1’s brother and that he wanted to go to identify the victim’s company.  The accomplice said he then met Sai Wing for the first time in Shamshuipo when Sai Wing was together with another person.  They then went to Hong Kong Plaza, but were unable to locate the victim’s car and he returned to Shenzhen until 3 August 2009.  He said he was arrested on 4 August 2009.

24.The accomplice said he gave evidence for the prosecution because he felt he was selfish and greedy to have betrayed the victim.  He agreed that Chang had told him that the victim had money to support his money-lending business and he also accepted that he did not mention anything about trying to convince D1 not to mess with the victim in the four statements that he gave to the police.

25.The accomplice was asked when he had decided to tell the truth, he said “Since I admit guilt, I decided to tell (the) whole truth.  I want to get (a) lenient sentence.  No way I can get away from it”.  He was further asked why he did not tell the police that on 20 July 2009 he told D1 to desist, he said the police told him that he could give more details in court.

26.When it was put to him that he tried to reduce his sentence by putting the blame on another, the accomplice said, “I tell the whole story in court” and “Whether I can get a reduction in sentence or not, I never believe police could offer a reduction in sentence.  I tell (the) court what I’ve done, hoping to get forgiveness and reduction in sentence.  I believe the law is fair.”

27.The accomplice admitted that parts of the statements he gave to the police were not accurate because he wanted “to distance myself from the case, to shift blame”, but he further said, “Now I have been prosecuted, I admit everything by telling the whole truth.”

28.The accomplice denied the suggestion that he had told D1 to follow the victim only because Chang wanted to know where the victim’s office was.  He said Chang knew where the victim’s office was.

29.The accomplice admitted that he had made up a story in a letter to the police on 13 August 2009 after his arrest to the effect that Chang was the mastermind.  However, he said that the letter was the result of him and D1 putting their heads together as they were upset and felt that it was Chang who had betrayed them.  It appeared that at the relevant time, the accomplice and D1 shared the same cellblock.

30.Ip, in his evidence, said D1 told him on 2 August 2009 that a friend of his needed a car on Monday to go to Western District and that he would be paid by the meter.  Ip said he was then contacted and he acted according to the instruction of Wong.

31.After his arrest, D1 said under caution, “Ah sir, earlier on, after I have had tea with Kong Tau Chai and Sai Wing in Café de Coral, intended to go to Macau”.

32.D1 was then further interviewed on three occasions on 3 August 2009.

33.In the first VIR, D1 said he was asked by the accomplice about one month before in a restaurant in Shamshuipo to track a relative who had financial disputes with him, to find out where he lived, his place of work.  D1 claimed not to know the identity of appearance of the person to track except that his surname was Wong and that he was given his car registration number.

34.D1 said he was unavailable at times, so he asked his friends Sai Wing and D2 to come to give help.  D1 said on the first day, his friends tracked the target person in Po Lam Estate in a rented taxi until they were arrested on Connaught Road West.  D1 said the accomplice did not know his friends who assisted in the tracking.

35.D1 further said that it was Fatty who asked the accomplice to track the victim and the accomplice in turn asked him to do so. D1 said he asked D2 and D3 to help him and that they had been tracking the victim for about a week.  He further said that they had once tracked him to his office on 29^th Floor.

36.D1 also talked about how the three of them met up on 3 August 2009.  He said he had an appointment with someone from the Mainland to wait at a bus stop near Café de Coral.  D1 said after meeting up with the man, he was given the bag with the stun gun inside, but D1 claimed that he did not know about the stun gun at the time.

37.In the 2^nd VRI, D1 further explained how he met the Mainland man in Lo Wu and how he was told to wait in Mongkok.  D1 also said after meeting the man, he was told to wait at Western District at a bus stop near Centre Street.  D1 said after getting off the bus near Café de Coral, he bought some newspaper and the Mainland man then gave him the bag, saying that it would be collected in Café de Coral later.

38.D1 said he did not touch the stun gun inside and knew nothing about it although he did put some of his personal belongings inside the bag when he went to the toilet.  However he was arrested by the police shortly afterward.

39.D1 was asked about the charger that fitted the stun gun, he said it was a charger that he kept for a friend from the Mainland, but he had no idea what it was for and he had not used it.  He also explained the purposes of other chargers found in his residence.

40.Before the 3^rd VRI, D1 was shown the tape of a video interview of Wong with the police.  In the interview, Wong talked about being asked by Ah Hung Gor (D1) through Ah Gut if he was interested in a robbery.  Wong said after considering it for a day or two, he decided to accept it and at a meeting in Mongkok on 2 August 2009, Ah Hung Gor gave him the telephone number of a taxi driver (Ah Gau) and he was told to contact him so that Ah Gau would pick him up and take him to Po Lam Estate to follow the private car.

41.Wong said there was a meeting with Ah Hung Gor, Ah Gau and Sai Fai, and they talked about following a private car to see if money was received and where the target person went so that Wong would rob him of money when he parked his car.

42.Wong admitted that he was told the targeted person would carry a nylon bag and there would be at least several hundred thousand dollars inside.

43.Wong initially said he was promised $1,000 to follow the car, but later admitted that Ah Hung Gor said he would be given several ten thousand dollars.

44.Wong was asked why he did not reveal the matte earlier on, he said he did not realize that it would be so serious and when he saw his two daughters, he became very worried and knew that he had done something wrong.

45.Wong said he agreed to take part thinking that it was an ordinary robbery of money, not one that was premeditated and organized.  He said Ah Hung Gor had assigned him to follow the car of the targeted person.

46.After viewing Wong’s video-recorded interview, D1 denied Wong’s allegation against him.  He said he did not tell him to commit robbery or gave him any instruction about it.  D1 said he did not ever know Wong’s name.

47.D1 said he only told Wong to follow the car, but had mentioned nothing about robbery.  D1 said he told Wong as he lived at that place and as a friend (Ah Piu- a taxi driver) would go there for his shift, he asked them in a Mongkok restaurant in the evening of 2 August 2009 to check when the target car would depart from Po Lam Estate the following day (3 August 2009).  He said Sai Wing and Ah Gut were present at the time.

48.D1 said he just told Ah Piu to pick up Wong in Choi Ming Court and then to follow a private car.  D1 denied that he had promised to pay $1,000 to Wong.

49.Upon his arrest for conspiracy to rob, D2 said, “Ah sir, I only acted as a lookout.  I am not clear about other things.” There were two subsequent VIRs, one on 3 August 2009 and the other on 4August 2009.

50.D2 said he was asked by D3 (Sai Wing) to go with him to press a boss for repayment.  D2 said he knew D1 as Tai Hung and in the morning on 3 August 2009, he met up with D2 and D3 at around 8 am as agreed and they then took a bus to go to Hong Kong Island.

51.D2 said the meeting was arranged in a Shamshuipo restaurant on 2 August 2009 and he thought the purpose of the visit was to locate the boss in connection with the repayment of a debt.  He said Sai Wing had mentioned that he had a boss in Macau involving in a debt of about tens of thousand dollars and they were to wait at the commercial centre to see if the person would turn up.  He said he attended only to provide escort as requested by Sai Wing who told him that they were to search for a boss and after he was located, the matter would be handed over to someone who would be asked to come to press for or to collect the repayment.

52.D2 admitted that he had been asked to follow the boss to check the location of his office and he was given $200 each time as a reward.  He said he tried to locate the boss the first time in mid July with Sai Wing and waited at Café de Coral, but the boss could not be seen.

53.The 2^nd occasion was a week before 3 August 2009 and he waited with Sai Wing, but again the boss did not turn up. D2 said that on 3 August 2009, he met up with D1 and D3 at a bus stop and shortly after 8 am, they took a cross-tunnel bus and got off at the commercial centre at 8.40 to 8.45 am and headed for Café de Coral.  He said D1 asked him to go up to the 29^th floor of Hong Kong Plaza to see if the company was opened whilst D1 and D3 waited at Café de Coral.  He said seeing that the company had not yet opened he went down to Café de Coral to have breakfast.  He said he was then arrested.

54.In the 2^nd VRI, D2 was asked what he meant by acting as a “lookout” (Tai Shui), he said “it was to look for someone and to see if the company – to see if (he/she) had turned up in the office.” D2 admitted that he had subscribed a number of telephones and allowed D1 to use them and he also detailed the telephone numbers with which he contacted D1.  D2 admitted that he had been to the 29^th Floor with Sai Wing to observe the company before.

55.Upon being arrested and cautioned, D3 said to the police, “I was only responsible for acting as a lookout.  Talk about the other things when (we) get to the police station”.  There was a subsequent VRI on 3 August 2009 in which D3 was asked to explain what he meant by acting as a “lookout”.  D3 said it meant “to watch to see when the car would arrive”.

56.D3 further admitted that D1 had told him that the person driving the target car owed the boss money and they were to watch to see when he would arrive and then “dun” the person for the money.  D3 explained that about two months before 3 August 2009, D1 introduced him to a boss or a friend (Ah Chuen) who had lent money to someone.  As the debtor did not repay the money and the plan was to go to see “whether the car could be followed, on which floor the person who had borrowed the money worked.”

57.D3 admitted that he was promised $600 a day, but had not been paid for the four days he had worked.  D3 further admitted that D1 had told him, in the evening of 2^nd August 2009, to go to check if the person who had owed money would come out.  D3 said on 3 August 2009, he went to Shamshuipo and met up with D2 and D1 before going to Café de Coral where he had breakfast and at the same time would keep watch to see if the target car had come or not.

58.D3 admitted that he had been to Café de Coral for the same purpose of watching the arrival of the target car, where he would go to work and then reporting them on four occasions in July and August 2009. D3 further admitted that on the previous occasions, he was only with D2.

59.D3 also admitted that on 3 August 2009, D1 had asked him if he had some plastic strips and adhesive tapes and when he replied yes, D1 asked him to bring them along without telling him the purposes.  D3 further admitted that he found D1’s request surprising as those things were only required if the intention was to grab the person and take him away when he did not repay, so that they would be used to stick the mouth, to tie up the hands.  Later he suggested that D1 needed those items as he was moving house that day.

60.However, when he told D1 that those things had been brought, D1 simply said “No need for the time being.” D3 said as he was walking out of Café de Coral, he was arrested by the police.

61.The police officers who kept the applicants under watch on 3 August 2009 said when they alighted from the bus at 8.26 am, D1 was already carrying the black bag and that it was not given to him by another person after he had alighted from the bus.  The surveillance police officers gave very detailed evidence on the movements of the applicants in the morning of 3 August 2009.

The Defence Case

62.Other than the evidence of the accomplice and the alleged admissions made by the applicants, the defence raised little objection to the prosecution evidence, but put forward an explanation as to what they were doing at the material time.

63.The defence case was that there was never any intention to rob anyone.  Their case was that they were only tasked to look out for a white Toyota because they were told vaguely that the person driving it had owed someone money and that their only task was to locate and report where that person worked and after that, their job would be completed.

64.D1 further suggested that he knew nothing about the stun gun inside the bag that he was carrying.  He said the bag was not his and it was only passed to him by a mainlander in the morning on 3 August 2009 at the bus stop and to that extent, he suggested that officer who said he saw D1 alighting from the bus with the black bag was not telling the truth.

65.D1 said he was supposed to hang on to black bag until it could be returned to Sai Fai and when he went to the toilet, he put his personal items inside.

66.D3 also said he brought along the plastic strips and adhesive tapes only at D1’s request because D1 wanted to move house.

67.The applicants all claimed that the statements they made in the police notebooks recording what they had said at the time of their arrest and in the VIRs were made after they had been subjected to oppressive conduct of the police and therefore they could not be relied on as the truth.

68.In his evidence, D1 said he had driven the accomplice to Po Lam Estate and the accomplice had showed him the car and had asked him to find out where the person was working.  After finding out that the target person work in Hong Kong Plaza, he asked D3 for help and promised him several hundred dollars to follow a private car.

69.D1 said he had to go to the Housing Department on 3 August 2009 in connection with his moving house, but the document he produced simply stated that he had to call the Housing Department on or before 3 August 2009 to arrange an appointment.

70.D1 said he was told by Sai Fai to go to the Mainland for an hour to see someone who would be taking over the job of finding out where the target person worked, and on 2 August 2009, he met Sai Fai, D3 and Wong.  At the meeting, it was suggested that as Wong lived in Tseung Kwan O, he could help to follow the target car.

71.D1 further said that Sai Fai had told him to wait at the bus stop in Western District on 3 August 2009 for a Mainland guy to give him something and then wait at the Café de Coral as he would come to collect it later.  It was D1’s evidence that when he alighted from the bus near the Hong Kong Plaza, he was given the black bag which was subsequently found to contain the stun gun.

72.D1 said he put his personal items into the bag when he was about to go to the toilet and he saw the object inside the bag, thinking that it was a torch.  He described how he was maltreated by the police.

73.D2, when giving evidence, said he was unemployed and relied on CSSA.  He described the occasions when he went to Hong Kong Plaza with D3 who promised to pay him $200 for each trip.  He said he had been paid a total sum of $400.  D2 also described how he was arrested and threatened by the police.  His case was that the VIRs were the result of the threat he received from the police who forced him to say what they wanted him to say.  He said that at the time of his arrest, he was helping someone to get back a debt.

74.D3 said he was asked by D1 to look for a white Toyota car and he was promised $600 a day.  He said on 2 August 2009, D1 told him to bring the adhesive tapes and the plastic straps as he needed them for moving house.

75.D3 said he was assaulted and threatened, and then induced by the police who told him that he would be released once the interviews had finished or else his wife and daughter would also be arrested. His case was also that the contents of the VIRs were not true.

The Judge’s Decision on the Admissibility of the VIRs and her Summing Up to the Jury

76.The judge admitted all the statements made by the applicants as evidence, having ruled that they were given freely and voluntarily.

77.The judge set out in details the relevant evidence and carefully directed the jury on the points of law involved in the case.

78.The judge warned the jury that they must be very, very careful and cautious with the evidence of the accomplice as he had his own interest to serve and he might lie in order to get a reduced sentence.

79.The judge repeatedly reminded the jury that the accomplice had not been sentenced at the time when he gave evidence against the applicants and he might therefore say things to obtain a sentence reduction. The judge told the jury that it was only safe to rely on the evidence of the accomplice if such evidence was supported by independent evidence.

80.The judge pointed out to the jury that Wong’s VIR was played to D1 during his 3^rd VIR with the police, and reminded them that what Wong said was not evidence against D1 at all and that only what D1 said during the VIR could be used as evidence for or against him.

Grounds of Appeal

81.Mr HY Wong, on behalf of the applicants, emphasized that the only direct evidence against the applicants came from the accomplice.  However, so Mr Wong argued, the judge had not sufficiently informed the jury that it was the practice or policy of courts to give witnesses, such as the accomplice, a reduction of sentence and the extent of such reduction.

82.Mr Wong referred us to the evidence of the accomplice when it was put to him that he wanted a reduction of sentence and that was why he gave evidence for the prosecution, namely, “As to whether I will get a reduction in sentence, it is my sincere wish that you big people, the judge, would give me a view for that”, and “…in that way I may be offered a reduction in sentence.  It’s never my request to get any reduction in sentence.  I do believe that the law is fair.”

83.Mr Wong suggested that without telling the jury directly about the practice or policy of courts to reward such accomplice witnesses with further discounts in appropriate circumstances and the extent of those discounts, the jury would indeed have been examining the issue in a vacuum and would not have been able to judge its significance in relation to the accomplice’s credibility.  Mr Wong relies on HKSAR v Ngie Hon Miu (unreported CACC 357/2010).

84.On the prosecution case against D1, Mr Wong suggested that the judge was wrong to have ruled the 3^rd VIR made by D1 admissible when its prejudicial effect outweighed its probative value.  Mr Wong suggested that D1, in the 3^rd VIR, had completely denied Wong’s allegations made in his interview, which was played to D1, and therefore the contents of the 3^rd VIR were completely exculpatory and could not assist the prosecution case against D1 at all.

85.Mr Wong suggested that the only purpose of putting D1’s 3^rd VIR was to introduce Wong’s allegations against D1 to his prejudice.

86.Mr Wong relied on R v Bowen [1972] Crim LR 312 and relies on the following sentence:

“to put (the co-defendant) statements as to the time of the offence to the jury and tell them they were not evidence against (the defendant) was to ask them to perform a feat of mental gymnastics of which they should not be expected to be capable.”

Discussion

87.The fact that an accomplice gives evidence for the prosecution after pleading guilty to the charge can be relied on as a mitigating factor.  The defence, on the other hand, is entitled to suggest that the accomplice gives untruthful evidence to secure a conviction against the defendant in order to obtain a sentence reduction.

88.A judge, in directing the jury, must inform the jury the possible motive on the part of the accomplice for lying against the defendant, including the suggestion that he did it in order to obtain a sentence reduction.

89.We did not accept that there should be any hard and fast rule as to how a judge should direct the jury as long as it was drawn to the jury’s attention that, when considering the truthfulness and reliability of an accomplice witness, they must bear in mind the possibility of an accomplice lying against the accused in order to obtain a sentence reduction.

90.In Ngie Hon Miu (supra), the accomplice witness said he had not been told by anyone that by testifying against others, he might be entitled to a further reduction in his sentence.  The accomplice witness had also steadfastly refused to acknowledge that he expected any benefit in terms of a sentence reduction by giving evidence against an accused when in fact shortly after his evidence was accepted leading to the conviction of the accused, the accomplice witness sought leave to appeal against sentence out of time and succeeded with his sentence reduced by 50% from the starting point.

91.The accomplice witness was specifically asked if he would expect a further 20% sentence reduction on top of the one-third discount for pleading guilty.  The accomplice witness denied and it was in such circumstances that the Court of Appeal took the view that without telling the jury of the possible sentence reduction and the extent of such reduction, the jury would have been examining the issue in a vacuum and would not have been able to judge its significance in relation to the credibility of the accomplice witness.

92.It is important to point out that the judge in Ngie Hon Miu (supra) did not mention to the jury the possibility of the accomplice witness getting a sentence reduction for testifying against the accused.  The judge, having repeated the evidence of the accomplice witness that he did not know he was entitled to any sentence reduction by testifying against others, simply asked the jury to decide if they would accept that evidence.  The judge then emphasized to the jury that the accused was unable to advance any suggestion as to why the accomplice witness would wish to falsely implicate him.

93.It was in such circumstances that the Court of Appeal came to the conclusion that the judge’s summing up to the jury was insufficient to bring out the defence case that the accomplice witness lied against the accused in order to obtain a sentence reduction.  It was on the facts of that case that the Court of Appeal considered it necessary for the judge to inform the jury the practice or policy of granting an accomplice witness who testified for the prosecution a sentence reduction and the possible extent of the reduction.

94.The accomplice in our case did not deny that he was hoping to have a sentence reduction as a result of his giving evidence against the applicants.  The accomplice had indicated that he had decided to tell the whole truth and he also hoped that the judge would give him a review as to whether he would get a reduction in sentence.

95.The accomplice said he did not believe that the police could offer him any sentence reduction, but by telling the court what he had done, what he had heard and what he had said, he hoped to be given forgiveness for what he had done “and in that way I may be offered a reduction in sentence”, although he also said that it was not his request to have any reduction in sentence.

96.When the judge summed up to the jury, the issue of the accomplice giving evidence against the applicants in order to get a sentence reduction was firmly placed before the jury.  The judge said:

“There are two things I have to warn you about. You must be very, very careful and cautious with his evidence. He may lie for his own benefit, as Mr Ng has pointed out, he hopes to get a reduced sentence and so he may lie and say things which are self-serving in order to achieve his goal. So you must assess his evidence very, very cautiously.”

“…So his pleading guilty is irrelevant to your consideration in this case. But the relevancy of that is that he has not yet been sentenced and so Mr Ng said, rightly, that you have to be cautious because he may try to say things in order to reduce his sentence eventually.”

97.Whilst in our view it might have been better if the judge also inform the jury that by giving evidence for the prosecution, the accomplice might be able to gain a significant sentence reduction, we were not persuaded that it was essential to do so as long as it was made clear to the jury of the possibility of the accomplice giving untrue evidence against the applicants in order to obtain a sentence reduction.

98.In our view, the judge had properly placed before the jury the suggestion that the accomplice would lie against the applicants in order to get a sentence reduction and the jury must bear that issue in mind in assessing the credibility of the accomplice witness.

99.We did not agree with Mr Wong’s suggestion that the contents of D1’s 3^rd VIR would not in any way assist the prosecution case against him and that its only purpose was to create prejudice to D1 by introducing Wong’s allegations implicating D1 to the jury.  We did not agree with Mr Wong’s suggestion that its contents were entirely exculpatory.

100.Whilst D1 denied Wong’s allegations and insisted that there was no mention of any robbery, D1 admitted that he told Wong, in the presence of other alleged co-conspirators on 2^nd August 2009, to follow the car of the target person the following day together with Ip who lived near Po Lam Estate where the victim’s car would be parked.

101.On the prosecution case, D1 wanted the victim’s car followed because he wanted to know when the car would arrive at Hong Kong Plaza where the victim would be robbed.  The acts of following the victim’s car were acts in furtherance of the conspiracy to rob and were highly relevant.  Perhaps that explains why D1’s 3^rd VIR was not objected to on the basis that it was irrelevant at trial.  The suggestion that the content of the 3^rd VIR was completely exculpatory and could not assist the prosecution case against D1 was not correct.

102.In the context of the prosecution case against D1, his admissions that he had instructed Wong to follow the victim was highly relevant.  There was no valid foundation for the suggestion that such admission should be excluded because its prejudicial effects outweighed its probative value.

103.Further, as rightly pointed by Mr Jonathan Man Tak-ho for the respondent, unlike in the case of Bowen (supra), it was never the intention to rely on the content of Wong’s VIR as evidence against D1.  The judge had repeatedly reminded the jury that they must not do so:

“…What a defendant says to the police against another defendant in his video-recorded interview or statement is not, and cannot, be used as evidence against any other defendant. It is sound reason because the one spoken against was not present at the time and could not answer for himself. So it is only evidence against the maker.

So when, as you had seen, when you saw (Wong) said certain things in the videotape that was played to (D1) in his third interview, what (Wong) said is not evidence against (D1). Only what the defendant said in his video-recorded interview can be used as evidence for or against him.

…..

(D1) was shown (Wong’s) tape.  And I remind you again that what Wong said is not evidence at all against (D1).”

104.We were satisfied that the judge did not err in admitting the 3^rd VIR as evidence against D1 and that the judge had properly directed the jury in the issue.

105.The case turned on the credibility of witnesses, both for the prosecution and for the defence.  The jury was entitled to accept the evidence of the prosecution witnesses, including that of the accomplice.  Indeed, there could be no acceptable motive for the accomplice to lie against the applicants.

106.If, as the defence suggested, the victim was followed only to find out his where-about without any intention of robbing him, the accomplice would have committed no crime.  Why would he be lying, not only to unjustifiably implicate the applicants, but also unnecessarily involve himself in a serious crime?

107.The case turned on questions of fact and in particular the extent to which the credibility of the accomplice could be relied on.  The jury clearly had accepted the evidence of the accomplice and other prosecution witnesses.  In our view, the jury was entitled to do so and to convict the applicants on the evidence of the prosecution witnesses.

108.The evidence on the 2^nd charge against D1 was overwhelming.  D1 was seen carrying the black bag when he alighted from the bus, contrary to his suggestion that it was only given to him after he had alighted from the bus.  His personal belongings were found in the black bag together with the stun gun and the charger for the stun gun was also found at his residence.  No reasonable jury would accept his explanation that he did not know and was not aware of the existence of the stun gun.

109.None of the grounds put forward by Mr Wong had led to any doubt about the safety of the convictions against the applicants.

Conclusion

110.We were satisfied that the applicants had all been properly convicted and we therefore dismissed their applications for leave to appeal against conviction.

Mr Jonathan Man Tak-ho, ADPP of the Department of Justice, for the Respondent

Mr H Y Wong instructed by Tang & Lee assigned by the Director of Legal Aid, for the 1^st to 3^rd Applicants

Please refer to FAMC26/2013 for the relevant appeal(s) to the Court of Final Appeal.