NG TING SING v. R.

IN THE COURT OF APPEAL

1992, No. 55
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted of one count of conspiracy with three co-accused to rob (Count 1) and three counts of robbery (Counts 3 to 5 respectively). He was sentenced to imprisonment for ten years on each count, the sentences to run concurrently. He now seeks leave to appeal against both conviction and sentence.

2. Mr Macrae represented the applicant in respect of Count 1. The applicant acted in person in respect of Counts 3 to 5.

Mr Macrae's first ground of appeal is as follows:-

The learned judge directed the jury on Count 1 as follows: -

"'Now if you believe that the accused said that to the police, if you believe that they are his words and you are s re that he said it, then that contains an admission that he conspired with three people called Ah Shui, Ah Chuen and Ah Ming. You could be sure that they really meant what they agreed if you accept that he, the accused and Ah Shui went the day before to spy out the land.

You could be sure because the strings were cut up in his house, and if you accept the evidence of the forensic scientist, one of the strings found on one of the three arrested persons came from the ball of string at 1041, Block 16, Lam Tin Estate.

You could infer from reference to one melon knife and two knives being taken and that the three arrested persons had knives similar to that in their possession at arrest, and the nylon strings were found in their possession, and that they were arrested near the cigarette shop in How Ming Street, that it all refers to the one incident. If you were sure all that was true, that is enough to convict the accused.'

Mr Macroe submitted that such a direction was wrong in fact and law and effectively misdirected the jury as to the meaning of the applicant's cautioned statement (which was a matter for the jury) and whether it amounted in law to a conspiracy to rob on the applicant's part. In particular: -

(a) the plan to rob was announced to the applicant by Ah Shui on the afternoon of 4th (November) rather than agreed to by him;

(b) the applicant had not prepared nylon strings or been asked so to do;

(c) the applicant had not pocketed any nylon string or been asked so to do;

(d) all that the applicant had in fact done was to participate in a reconnaissance exercise on the morning of the 4th which was several hours before Ah Shui made his 'announcement' ;

(e) the applicant's cautioned statement did not carry any concession that after Ah Shui's 'announcement' he either agreed with the plan or did anything by which he associated himself with the plan."

3. Here we are concerned with the third cautioned statement taken from the applicant on 6 November 1990, where he said: -

"Actually, one day in last week he said to me that he knew there was a small shop in How Ming Street which opened at around 6 a.m. everyday. Its business was normally very good. There might have several ten thousand dollars in the shop. He also said that the money was usually kept in the shop after it was closed on every Saturday and would be deposited in bank on Monday. He said that he wanted to rob it early on Sunday morning as soon as it opened.

'Ah Shui' said that there were only a few people in the street at that time and said that it was an easy job. At that time, I promised him. Then, 'Ah Shui' asked me to go to reconnoitre the area early in the morning between 5 a.m. and 6 a.m. the day before yesterday, that is, the 4th, Sunday. That day, 'Ah Shui' and I were in the middle of How Ming Street when 'Ah Shui' pointed out to me a small shop which was selling cigarettes and soft drinks. Then, we walked in the vicinity for a while to reconnoitre the area. Afterwards, we left. On the afternoon of the 4th, 'Ah Shui" and I were in my home at 1041B, Block 16, Lam Tin and 'Ah Shui' said to 'Ah Chuen' and 'Ah Ming' that four persons together went back to How Ming Street to rob the small shop yesterday morning, that is, the 5th, between 5 o'clock and 6 o'clock.

Also, 'Ah Shui' told 'Ah Chuen' and 'Ah Ming' to cut several nylon strings with scissors beforehand for tying up people. The nylon strings which they cut were cut off from a roll of green nylon string found at my home when you arrested me last night. After 'Ah Shui' had mentioned all the things, the four of us slept at my home that night.

At around 4 a.m. yesterday, 'Ah Shui' woke all of us up, fetched one melon-knife and two small knives at my home, and asked 'Ah Chuen' and 'Ah Ming' to pocket the nylon strings, going to How Ming Street together. However, I suddenly did not want to go at that time. I then said to 'Ah Shui' that I was not feeling well. Subsequently, 'Ah Shui' went with 'Ah Ming' and 'Ah Chuen', the three of them. However, they were caught."

4. It is true that the judge, in his direction to the jury, did not in terms say that it was a matter for them as to what they thought the cautioned statement quoted above meant. It would have been better for the judge to have clearly explained to the jury that they should determine whether the words used in the cautioned statement were sufficiently clear to indicate conspiracy. However, in our judgment, there could be no doubt that that was precisely what the applicant said his role was, i.e., that he was one of the conspirators. Apart from the cautioned statement now under consideration, the applicant had earlier made statements confessing to taking part in robberies with others in October. Reading the statements in their proper context, the passage in the cautioned statement quoted above, particularly having regard to the sentence "At that time, I promised him", could only mean that the applicant was a party to the conspiracy to rob.

5. The first ground of appeal fails.

6. The other ground of appeal argued by Mr Macrae was that the verdict of guilty on Count 1 was inconsistent in all the circumstances of the case with the acquittals of all the co-conspirators in the alleged conspiracy. In this connection, we need only refer to Sec. 66A of the Criminal Procedure Ordinance, Cap. 221, which provides: -

"A person shall not be entitled to be acquitted of the offence of conspiracy for the reason only that the only other person or persons with whom he is alleged, in the indictment or charge sheet, to have entered into that conspiracy are or have been acquitted."

Sec. 5(8) of the Criminal Law Act 1977, which was enacted after the decision of the House of Lords in DPP v. Shannon [1975] AC 717, is the same as our Sec. 66A, except for the additional words: -

"shall not be a ground for quashing his conviction unless under all the circumstances of the case his conviction is inconsistent with the acquittal of the other person or persons in question."

7. The applicant's three co-accused who were named as his co-conspirators in the conspiracy count the original indictment pleaded guilty to several counts of substantive offences. The Crown then offered no evidence against them on the conspiracy count. The trial proceeded against the applicant on all counts on a fresh indictment in which the conspiracy count was amended to delete any reference to the names of the three co-accused who had been acquitted as a consequence of the decision to offer no evidence against them.

8. The case for the Crown against the applicant did not depend upon evidence which was identical with that on which it had proposed to rely against the co-accused. As we have already stated, there was evidence in the form of a cautioned statement made by the applicant which was evidence against him alone and from which the jury were entitled to conclude that he had conspired with one or more persons to commit robbery.

9. Verdict of guilty on the conspiracy count was therefore permissible in spite of the acquittals of the applicant's co-accused.

10. Lastly, it was argued that the verdict on Count 1 was unsafe and unsatisfactory. There is nothing in this ground of appeal.

11. Acting in person, the applicant advanced the following arguments in support of his application for leave to appeal against his convictions on Counts 3 to 5: -

(1) He was not the "Ah Yau" whom his co-accused mentioned in their statements as the person with whom they committed the robberies. Those statements were not evidence against the applicant.

(2) The stolen properties in Counts 6 and 7 were not found on him. We take it that by Counts 6 and 7, the applicant meant the amended Counts 4 and 5 respectively.

(3) The victims did not identify him in court.

(4) He was arrested by the police and forced to go to the places where the robberies had taken place.

(5) The cautioned statements were signed by him as a result of police violence. After a voir dire, the judge ruled the statements admissible.

(6) The judge was wrong when he stated in his summing up (at page 8) that he believed the expert evidence about the tapes and pieces of string. This was what the judge said: -

" Now, there is nothing magical in the opinion of an expert. It is evidence as with any other witness. You may accept all of what he says or part, or none. He has not been challenged as an expert. Mr Mackay did not say, 'I do not believe he is an expert'. So, he has been accepted as being an expert in his field."

12. In our judgment, there is nothing in any of those complaints.

13. The application for leave to appeal against conviction was therefore refused.

14. It remains for us to consider the application for leave to appeal against sentence. Mr Macrae stated that if the conviction upon Count 1 was unsafe and unsatisfactory, the overall sentence of ten years' imprisonment concurrent was manifestly excessive. We need only say that in the event the conviction on Count 1 was upheld.

15. The applicant, acting in person, asked for the sentences on Counts 3 to 5 be reduced by one or two years as his wife had divorced him, and there was no one to take care of his daughter in the native village.

16. These were serious offences; we do not think the sentences are in any way improper. The application for leave to appeal against sentence was accordingly dismissed.