HKSAR v. SIU PING FUK AND ANOTHER

HCCC264/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT CRIMINAL CASE NO.264 OF 1999

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J U D G M E N T

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1. The 2nd accused was charged together with the 1st accused with the offence of conspiracy to murder. The particulars are that on divers days in November 1998 in Hong Kong, they conspired together and with Leung Yiu Kwong, to murder Fong Sin. The 1st accused has pleaded guilty to the indictment. The 2nd accused, through his counsel, has made an application under s.16 of the Criminal Procedure Ordinance and has asked that the application be granted on the basis that the evidence is insufficient to establish a prima facie case against him for the offence with which he is charged, or for any other offence of which he might be convicted upon that charge.

2. On an application under s.16, I can only consider the evidence as disclosed in the depositions as they were presented to the magistrate when the magistrate committed the accused for trial. The intended victim, Mr Fong Sin, would be called as a witness if the matter proceeds to trial. Mr Fong is a factory owner who runs a factory together with his younger brother. When the police informed him of this alleged conspiracy to murder him, that was the first time he ever heard of such a matter. He told the police that as far as he was aware, he had no enemies and no grudges with any person or persons. He and his family had emigrated to Australia but Mr Fong used to come back to Hong Kong regularly to attend to his business affairs.

3. The only matter that should be noted is that in October 1998, Mr Fong went back to Australia, but returned to Hong Kong in November 1998. In early December 1998, he took a five days vacation in Korea. So it would appear to be certain that in the month of November 1998, Mr Fong was in Hong Kong. His son's evidence does not really advance the prosecution's case very much.

4. Then there is the evidence of a witness who was a friend of the 1st accused. If the matter proceeds to trial, this witness will give evidence that in December 1998 he had a conversation with the 1st accused. This conversation is, of course, not evidence against the 2nd accused because what was stated by the 1st accused to this witness was in no way a declaration in furtherance of any conspiracy. In any case, the conversation does not implicate the 2nd accused because it does not mention him by name. There is reference by the 2nd accused to a friend who had been in jail with him, who had received a sum of money as a deposit from him, the 1st accused. So, again his evidence does not advance the prosecution's case in so far as the 2nd accused is concerned.

5. The rest of the witnesses to be called by the prosecution if the matter proceeds to trial, apart from three police photographers, are police officers who were involved in the arrest and interview of the 1st and the 2nd accused. The evidence of these police witnesses is that the 2nd accused was arrested by the police on 18 January 1999 at 19.21 hours. After the 2nd accused was arrested and was cautioned by the police, he said to the arresting officer who was Detective Police Constable 23634 the following :

" Ah Sir, I understand it's Siu Ping Fuk and Ah Sam who paid me $20,000 and asked me to go over there at Tin Hau Temple Road to kill a person. However, I did not do so. I have already spent the $20,000. I spent it on buying a television set and a VCD player. I can bring you to my place to recover them."

He was then taken back to the police station and then he was interviewed by the police on video. The interview on video took over an hour and commenced at 12.02 mid night on 19 January 1999.

6. There is, in fact, no evidence against the 2nd accused apart from what is contained in this record of interview. The whole of the prosecution's case relies on the contents of what the 2nd accused said in his interview. In that interview the 2nd accused talks of being approached by the 1st accused Siu and of Siu telling him of a plan to kill someone for $100,000, and that was on 15 November 1998. He said that he pretended that he was interested in the plot because he wanted to cheat Siu out of all the money that he could. And one of the first things he said to the police was : "After I heard that, since at that time I was in need of money, I falsely promised him." Throughout that interview that is the theme which comes out loud and clear from the 2nd accused that he never had any intention to carry out this plan and all he was interested in was to try and cheat Siu out of as much money as he possibly could.

7. He said that on 15 November 1998, after that conversation with Siu, he and Siu went to Mongkok where Siu introduced a man known as Ah Sam to him. The three of them then walked from Mongkok to the Kwong Wah Hospital so that they could have a private conversation. Siu, in the presence of the 2nd accused, asked Ah Sam if the price for killing this person could be increased by $10,000 or $20,000. The 2nd accused said to Ah Sam that if Ah Sam did not pay a deposit, he, the 2nd accused, would not do it. Ah Sam said that he had to talk to his boss and give them, namely, Siu and the 2nd accused, a reply the next day. During the conversation, the 2nd accused had pretended that he knew some people in China who would be prepared to carry out the killing. But he told the police in the interview that he in fact did not know any such killers. He said that he hoped to make some money by cheating as much as he could and that all along he was cheating Siu. The 2nd accused asked Siu for a $30,000 deposit. As I said earlier, these alleged facts are all gleaned from what the 2nd accused told the police because there is no other evidence to prove these matters.

8. On 16 November 1998, the 2nd accused telephoned Siu. They met at MacDonald's. The 2nd accused asked Siu if the $30,000 deposit would be paid. Siu telephoned Ah Sam. The 2nd accused said he could provide the guns to be used in the killing, but he told the police that in fact he was just cheating Siu. After speaking to Ah Sam on the telephone, Siu said that he would give the 2nd accused a reply that night. At 11.00 pm that night, the 2nd accused telephoned Siu again, Siu suggested that a deposit of $15,000 be paid. The 2nd accused said that he would in turn give Siu a reply the next day.

9. On the next day, 17 November, the 2nd accused again met Siu at a Cafe. Siu gave the 2nd accused $2,000 as a loan. The 2nd accused suggested that $15,000 should be paid into his account the next day. That night, 17 November, the 2nd accused went to Shengzhen to his girl friend's place. On 18 November, sometime past 2 pm, Siu telephoned the 2nd accused to say that $15,000 had been deposited into the 2nd accused's Sin Hua account. The 2nd accused told the police that he then withdrew $7,500 in Shengzhen from his account on three different occasions, on each occasion withdrawing $2,500. In the latter part of the interview, he corrected that to say that he in fact withdrew $2,500 each on four occasions, thereby withdrawing a total of $10,000 from his account.

10. That day, 18 November, the 2nd accused telephoned Siu and said that he would return that night at 11.00 pm to discuss the plan with Siu. The 2nd accused said that he had arranged for some things in China. That night the 2nd accused returned to Hong Kong and met Siu, and he told Siu that the people in China did not accept $15,000 as the deposit. Siu then paid the 2nd accused another $3,000, thereby in fact increasing the deposit to $20,000. The 2nd accused then asked Siu for information on the victim and Siu said that Ah Sam had not given the information yet.

11. On the following day, 19 November, at 10.00 am, the 2nd accused met Siu at a cafe, then Siu took the 2nd accused on the MTR to go to Tin Hau where Siu took the 2nd accused to a building near a school on Tin Hau Temple Road. The 2nd accused told the police that he in fact paid no attention to which building this was because he never intended to carry out the murder. Siu pointed to a building and said that the victim would come out of the building at 7.00 am each morning. Again the 2nd accused told the police that he was not sure how many storeys that building had because, again, he had no intention of carrying out the plot. Siu told the 2nd accused that the person would go from the building to a bus stop near the school. Siu said that this person was a man in his 50s. They then went to a cafe to have refreshments where Siu handed to the 2nd accused a tissue paper in which was a photograph of a man in his 50s. This photograph was subsequently found by the police in the 2nd accused's flat on the day when the 2nd accused was arrested and was in fact a photograph of Mr Fong Sin. The 2nd accused told the police that despite his not having any intention to carry out the plot, he still kept the photograph as a protection for himself because since he was going to cheat Siu of the deposit money, in the future if he should meet Siu again, Siu might do him some harm and the photograph would serve as a protection to him, the 2nd accused. The reason for that is if anything happened in future, he, the 2nd accused could inform the police and tell the police everything and produce the photograph as some sort of documentary support for what he was saying.

12. After the two of them had had refreshments at the Cafe, Siu took the 2nd accused to a retail Smarttone shop in Western where Siu bought a telephone card for the 2nd accused to use on his mobile phone. The 2nd accused told the police that after that he went to buy a television set, which the police subsequently found in his flat. He then went back to China, to his girl friend's place. He said that he then changed the telephone number of his girl friend's home and also the phone number of his own home in Hong Kong. The 2nd accused told the police that he then, as he put it, "went missing". He also told the police during the interview that since that day on 19 November, he had not contacted Siu at all.

13. On 21 November, Siu telephoned the 2nd accused's girl friend's mobile phone and left a message with his girl friend for the 2nd accused. What Siu said to the girl friend over the telephone was "I am doing business with him. I have given $20,000 to him, tell him to telephone me in case something happens." The 2nd accused told the police that the reason that Siu telephoned on 21 November was because the 2nd accused had earlier on, in his conversation with Siu, said he would carry out the killing on 20 November. The 2nd accused in fact stayed in China from 19 November to 25 November. There is no evidence whatsoever that during that period, the 2nd accused did anything which was in any way connected with this alleged plot to murder Mr Fong. The 2nd accused also told the police that he had written down Siu's identity card number at two different places so that in case anything happened in the future, he could report the matter to the police and give the police Siu's identity card number to assist the police with their investigations. He was in effect saying that he recorded Siu's identity card number for the same reason that he had kept the photograph of Mr Fong, namely, to give him some protection in case anything happened in the future. What he said to the police was "Because I cheated him out of money, I was afraid that when he bumped into me, I could have a protection." He told the police that since 21 November, he had not had any contact with Siu again.

14. Just before the interview concluded, when he was asked by the police if he had any additions or alterations, he, as it were, summarized his case for the benefit of the police. What he said was :

"From the beginning to the end, I, although I know that he gave $20,000 to me to kill someone, all along I have no intention to kill someone. I was just cheating Siu Ping Fuk's money, that is, since I was hard up, I cheated him out of his money. I have no connections. As to the things I said about going to the Mainland to hire people, to employ people, all I said was only to cheat Ah Siu Ping Fuk. It means that all was said to cheat him. All along I have no intention to do this matter, therefore I didn't pay any attention to the person and the place that he took me to see. Therefore I don't remember so clearly. When he took me to the place where the killing will take place and to see the person, I did not pay any attention, that is, there is something that I am not so clear about. Even when I met Ah Sam, I just have a vague recollections because I have no intention to kill someone, I was only intending to cheat someone out of money."

That was the extent of the prosecution's evidence against the 2nd accused.

15. The charge is one of conspiracy to murder. To succeed on the charge, the prosecution would have to prove that the 2nd accused conspired with the 1st accused and with Leung Yiu Kwong, and that they conspired together to murder Fong Sin.

16. The essence of conspiracy is the agreement. When two or more agreed to carry a criminal scheme into effect, the very plot is the criminal act itself. Nothing need be done in pursuit of the agreement. (Archbold para. 33-4)

17. Mens rea is an essential element in conspiracy only in that there must be an intention to be a party to an agreement to do an unlawful act. In R. v. Anderson [1986] AC 27 Lord Bridge said :

" But, beyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice : nothing more is required."

The point was emphasised in Yip Chiu-cheung v. R. 99 CAR 406 where an undercover officer who entered into an agreement to export drugs was held to have had the necessary mens rea for conspiracy. In that case Lord Griffiths said :

" The crime of conspiracy required an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence. As Lord Bridge pointed out, an undercover agent who has no intention of committing the crime lacks the necessary mens rea to be a conspirator."

That is in fact the nub of Mr McNamara's submission on the s.16 application, namely, the 2nd accused never had an intention to commit the crime, therefore he lacks the necessary mens rea to be a conspirator. Counsel submits that on the only available evidence against the 2nd accused, he stated clearly and unequivocally and almost ad nauseam that all he was doing was to cheat Siu out of Siu's money and that he never intended any killing to be carried out.

18. Mr McNamara quite properly concedes that if the 1st accused were to give evidence against the 2nd accused, or the man Leung Yiu Kwong were to give evidence to say that there was agreement involving the 2nd accused, then quite clearly there must be a prima facie case against the 2nd accused. But that is not the position here. Neither the 1st accused nor Leung Yiu Kwong will be giving evidence against the 2nd accused, the only evidence against him, in fact, has the effect of exonerating him.

19. Mr Necholas on behalf of the prosecution submits that this is a mixed statement and the prosecution and the jury are not bound to accept all the contents in their entirety. He says that the law is, which is correct, that if a declaration or a statement is a mixed statement, then the whole of it is admissible against the maker. I do not agree that this is a mixed statement. It is only a mixed statement if on the one hand it implicates him, and on the other it says other matters which assist him in his defence. This statement by the 2nd accused does not implicate him. He talks of being approached by Siu and of being invited to join this conspiracy. He talks of accepting $20,000 from Siu and being taken to the place by Siu to look at the scene where the crime was to be committed. But throughout the statement, he never once admitted that he had the intention to carry out this ostensible agreement. He was giving Siu the impression that he was agreeing to join the conspiracy only to try, which he subsequently succeeded in doing, to cheat Siu out of as much money as he possibly could. Everything that he did after the initial conversation, namely, the acceptance of the deposit money and going to the scene of the crime with Siu, was as consistent with his being a party to the agreement as it was with his going through the charade of being a party so that he could cheat Siu out of some deposit money.

20. There is absolutely no evidence that on his own, when he was by himself, the 2nd accused ever did anything to try and further this conspiracy. There is no evidence that when he was in China he did anything; there is no evidence that he tried to lay his hands on any guns; there is no evidence that he tried to approach any persons to do the actual killing. In fact, the evidence was just the opposite. After he received $20,000 from Siu and after he had been shown the scene of the crime and given the photograph of Mr Fong, he left for China on 19 November and stayed in China till 25 November. There is no evidence that he went at all on his own to Mr Fong' residence or the area in that vicinity. When Siu telephoned his girl friend's mobile telephone on 21 November, the 2nd accused did not answer the telephone and pretended he was not even there.

21. Mr Necholas submits that the jury will be entitled to draw the inference that he was in fact a party to the agreement, but he said that he was only pretending that he was a party to try and cheat Siu out of his money only because he was arrested by the police and this was a last ditch attempt to try and save himself. I asked counsel if he could point to any declaration or any overt act on the part of the 2nd accused which was consistent with guilt and inconsistent with innocence, and counsel was not able to point to any such declaration or act.

22. When proof of any element essential to guilt is left to be inferred, the primary facts from which the prosecution would have the jury draw the inference must be established by evidence beyond reasonable doubt. This means that the circumstances relied on for the inference must exclude any hypothesis consistent with innocence. A direction to the jury to give appropriate effect to these rules of law will necessarily vary according to the nature of the evidence that the prosecution offers as proof. The direction will be construed around the central principle that the prosecution must establish guilt beyond reasonable doubt, and the direction will be more or less elaborated according to the need to put the jury on guard against reaching any conclusion unfavourable to the accused which might not be inconsistent with innocence. The direction must therefore be designed to ensure that the jury does not infer guilt from facts about which they are left in doubt (Bruce & McCoy, Chapter 3, para.152).

23. So for all the reasons which I have stated, I find that on the depositions adduced before the Magistrate, there is insufficient evidence to establish a prima facie case of conspiracy to murder against the 2nd accused. Therefore, in accordance with s.16(3) of the Criminal Procedure Ordinance, I direct that the Accused shall not be arraigned on the charge and I direct that he be discharged.