R. v. PANG CHI FUNG

IN THE COURT OF APPEAL

1994, No.44
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This applicant PANG Chi-fung was originally charged with nine others with one count of robbery, one count of possession of firearms and one count of using firearms to resist arrest. He was at that time the 7th accused. By the time of trial there were only 7 accused and he was, during the trial, the 5th accused. The 7 accused at trial faced only one count of robbery. It was particularized in the following way. The seven were named and it stated:

"on the 27th day of August, 1991 at 2nd floor, Trans Hong Kong Commercial Building, No.41-43, Carnarvon Road, Tsimshatsui, Kowloon, Hong Kong, together with other persons unknown, robbed CHAN Shuk-yee of a quantity of furs."

The robbery was carried out by a group of men armed with two pistols and a knife. The premises were, as the count indicates, a fur company. It was the intention having gained entry to subdue the staff, gag and blindfold them and then steal the furs. A novel feature of this robbery was that it was to be carried out not late at night or in the early hours of the morning but between the hours of 8:45 a.m. and 10 a.m. It was the plan to overcome the caretaker, replace him with a member of the gang and then to subdue each of the staff as they arrived for work. The plan however came unstuck as the manageress rang the premises in the course of the robbery and, because of what was said to her by a staff member, became suspicious and alerted the police. On the arrival of the police party the members of the gang resisted and indeed one shot was fired by the police. Some of the members were arrested but some, including, according to the Crown case, the applicant, escaped.

2. The trial judge, when he came to sum up, explained the offence of robbery to the jury. He did so against the background that there was no dispute that the robbery had taken place. Put simply he told the jury that robbery was stealing by force or by the use of threat of force. It is true that he did not define the term "theft" or the term "stealing" but it must be said that in the circumstances no one could have understood anything other than that "theft" meant the taking of the furs, the property of the company, without their permission.

3. The original 1st accused KWOK Siu-wing gave accomplice evidence. His evidence was such as, if accepted, clearly to implicate the applicant and the other six in the planning that led up to the robbery. This planning, it appears, had taken place for the most part in the Fu Lam Moon Restaurant in Tuen Mun on the evening before the robbery and thereafter at a flat in that area. The members disbursed that evening with the understanding that they would assemble at the Yaohon Department Store in Tuen Mun at 7 a.m. on the following morning.

4. There was also evidence from WONG Ching-man who was Kwok's girlfriend about the meeting at the restaurant and, pertinent to this appeal, that the applicant had been at the restaurant with his girlfriend.

5. There was also important evidence which was referred to as the contact evidence. This showed contact of clothing with furs but this evidence did not incriminate the applicant who had, according to the Crown case, had not been apprehended at the scene.

6. The evidence of the accomplice and his girlfriend has to be read with the evidence of the police as to the admissions made by the applicant. These on their face are the clearest possible admission of willingness to participate in a robbery. There can be no doubt that at the conclusion of the Crown case there was strong evidence, if accepted, implicating the applicant in a robbery. If the accomplice evidence was accepted, then it would have been sufficient but he was of course an accomplice and the jury, having been given a warning about his evidence in strong terms, was quite entitled to refuse to act upon it. If the evidence of the accomplice was not accepted there was the evidence of the statement which, as I have indicated, standing alone clearly implicated the applicant in the robbery.

7. It was the evidence, however, of the applicant, that he had been coerced and told what to write at the time when he was making that statement. The jury was entitled, if they saw fit so to do, to reject that statement in part or in whole. The trial judge when directing said having dealt with the taking of the statement and the applicant's evidence thereon:

"However, towards the end of his evidence, it turned out, contrary to what he said earlier, that he was not saying that all the answers he had written down had been dictated to him. He told you at the very end of his evidence that some of the answers he wrote were unprompted, they were not dictated, they were his answers. Indeed he said that two of the long answers had not been dictated to him at all. Those were the answers to Questions 9 and 17. He told you that the police had told him who had been involved in the robbery and who had managed to escape. Take that into account, namely, that he had been told by the police who had been involved in the robbery and who had managed to escape. But I suggest you read those two answers, Answers 9 and 17, very carefully. And once you have read them, ask yourselves whether someone who had not been involved in the robbery could have written those answers unprompted. Those, as I say, were the answers which D5 said he was not prompted to write, they were not dictated to him, apart from the fact that the police told him who had been involved in the robbery and who had managed to escape."

8. The answer to Question 9 which details the persons involved in the robbery is not so significant to this appeal as is the answer to Question 17 in which the applicant said:

"Ah Ching told us that (we) would go to rob the leather and fur company the following morning. Ah Ching told me and Ah Lo that the rest of the people had held a meeting beforehand and (they) knew what they would do during the robbery. Only Ah Lo and myself didn't know it. So, Ah Ching assigned the work to me and Ah Lo. The two of us were responsible for removing the goods."

9. The jury in the outcome were unanimous in returning a verdict of not guilty to the robbery but returned a verdict of guilty to the alternative charge of theft, by a majority verdict of 6 to 1. It seems clear that the jury must have been prepared to rely upon the answer to Question 9 and to have taken the view it disclosed was an admission of an agreement by the applicant to do no more than to move the stolen goods and that he made no admission of any agreement to be involved in any robbery.

10. The first of the grounds which has been argued before us today by Mr. Matthews read as follows:

"1. In leaving the Statutory alternative offence of theft to the jury the Learned Trial judge erred in the following respects:

(i) He left it open to the jury to convict the appellant of an offence and on a basis which had not been properly canvassed before the jury thereby prejudicing the appellant.

(ii) He failed to direct the jury as to the ingredients of the offence of theft and the evidence which had been adduced during the trial which would be capable of establishing the offence of theft against the appellant.

(iii) He failed to remind the Jury that in order to convict the defendant of the offence of theft not only would they have to disregard portions of the evidence of the accomplice Kwok Shu-wing but they would also have had to disbelieve part or all of the admissions in the appellant's Cautioned Statement.

(iv) There was no evidence before the jury to support a conviction of an offence of theft based on a joint enterprise."

This ground is closely allied with Ground 3 which was that the conviction was unsafe and unsatisfactory. When considering it we must look at what the judge said to the jury with regard to theft. He said towards the end of his summing up:

"Assuming that you are sure about the rest of Kwok's evidence and that the defendants were indeed involved in a plan to steal, it may be an unlikely scenario that the defendants knew of the plan to take the furs but did not know that force was going to be threatened or used, but it is nevertheless a scenario that you are going to have to consider.

The position in law is this. If you were not sure that the defendants knew or believed that force was going to be used or threatened, then they could not be convicted by you of robbery. That is because to be guilty of robbery, the agreed plan, to which the defendants must have been parties, must involved the use or threat of force. That was one of the things I told you yesterday you had to be sure about before you could convict the defendants of robbery. Although the defendants would in those circumstances have to be acquitted of robbery, they would be guilty of stealing the furs. That alternative offence of theft is an offence which will be open to you to convict them of even though there is not a charge of theft laid against them in the indictment."

11. The matter did not however end there. The jury after retiring returned with the following question:

"If the defendants had no prior knowledge that force was to be used and only upon their arrival at the premises saw that force had been used, does this still constitute robbery or should theft be applied?"

The judge then gave the following direction:

"On the particular factual situation which your question poses, there is in law one answer only. The defendants cannot be convicted of robbery. They can only be convicted of theft. That is because the defendants would not have been a party to an agreed plan --- they would not have been parties to an agreed plan that force was going to be threatened or used. They would only have been parties to an agreed plan to steal. Would you, therefore, with that direction in mind, return to your room and continue deliberating on your verdicts?"

As I have already indicated it seems to us clear to us that the jury when coming to their verdict of guilty on the theft count must have been relying upon the passage to which reference has been made in the applicant's cautioned statement. They were perfectly entitled so to do. They clearly had some doubt as to whether the applicant had hurt a participant in the robbery but had no doubt that he was a participant in the removal of the furs.

12. Mr. Matthews submits, nonetheless, that the verdict cannot stand as the jury were not given any proper direction as to the meaning of the word "theft". This is correct. The judge should have given such a direction. However, we are satisfied that the jury would have been in no doubt as to the meaning of theft in the context of the facts in the present case, and that the judge's failure to define the term was of no real moment. If it were required we would unhesitatingly apply the proviso.

13. Mr. Matthew's second ground of appeal dealt with the alibi that had been put forward by the applicant. It was the complaint that the judge had failed to direct the jury in sufficiently strong terms that evidence of alibi having been given by the appellant it was incumbent upon the Crown to disprove the same beyond reasonable doubt and that the judge in telling the jury they could take into account the simple fact that two witnesses had not been to give evidence in support of the alibi of the appellant in deciding where the truth lay, in effect placed the burden on the appellant to prove or support his alibi by other evidence. Finally it was urged that the judge wrongly detracted from the evidence capable of supporting the alibi by implying to the jury that as trial counsel had failed to put to the police that the fokie of the appellant was at the police station at the same time as the appellant, and therefore there being no evidence from the police, the evidence was of less significance than otherwise would have been the case.

14. We do not consider it necessary to canvass these grounds at length. We have examined the summing up of the judge and are quite satisfied that there is no merit in the matters urged with regard to the alibi and that there is therefore no merit in this ground.

15. I have already to an extent dealt with ground 3 which was that the conviction was unsafe and unsatisfactory. It seems to us clear that the jury having assessed the evidence were not prepared to act upon the evidence of the accomplice. They were, further, not prepared to act upon evidence in the cautioned statement which they felt might be suspect because of suggested impropriety on the part of the police. There was, however, evidence which stood in a different category, i.e. the answers to Questions 9 and 17. They were entitled to convict of theft upon the basis of this evidence and, in our view, they plainly did.

16. The application for leave to appeal against conviction is refused.