THE QUEEN v. LEUNG MUK SHING

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JUDGMENT

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Liu JA:

1. The applicant faced one single charge of conspiracy to rob before Deputy Judge Tallentire in the District Court. He was charged that on 3 January 1995, he conspired with three others, including one Cheung Man-kit, the 4th defendant, to commit robbery. He stood trial and was found guilty by the Judge. He was sentenced to 3 years' imprisonment. He seeks leave to appeal against his conviction. The facts are straight-forward. On the day in question, at about 4.10 pm, a light goods vehicle parked at the Stafford Road junction of Rutland Quadrant was under police surveillance. Two rear-seat passengers were seen alighting from the vehicle and they were followed. The person who was subsequently charged as 1st defendant was soon caught with a knife by the police and he immediately confessed to having come out with the others to rob. Inside the light goods vehicle, the police found number plate, knives, sheath, string and plastic adhesive tapes and a plastic bag. The applicant was questioned by the police as to why he was at the scene, and he told the police that Ah Lun who turned out to be the 2nd defendant in the trial, told him to come out to rob. He was later taken to the police station at which the applicant signed a post-recorded entry in a police notebook which was produced as an exhibit at the trial. The applicant was later interviewed and he gave another signed statement. At the trial that statement, together with the post-recorded verbal statement of the applicant, were sought by the prosecution to be admitted as evidence against the applicant. A voir dire was conducted, in which the applicant did not give evidence, nor call any witness except for one Dr Wong. The doctor gave evidence of the conditions of the applicant and others. At the conclusion of the voir dire, the judge found these statements to have been given voluntarily by the applicant. These statements were marked Exhibit P7 and Exhibit P9. Suffice it for us to refer to Exhibit P7 for the following entry. After a caution had been administered to the applicant, he said: "Ah Sir, give me a chance. It was Ah Lun", that is the 2nd defendant, "who told me to help him to drive the car." In the signed statement given at the interview of the applicant, he made a fuller confession. In particular, he said to the interviewing police officer: "Then we all said (we are) very poor, and the time is getting near the end of the year, and are desperate for money to pass the year. As we were chatting, Cheung Man-kit", that is the 4th defendant, "said he can get a car to do thing. A car can make the dispersal quicker. Then we discussed together what about let Ah Kit Cheung Man-kit driving the car, to hang around in the vicinity of Kowloon district, when seeing people drive 'Mercedes Benz' of model 300 or above, pulled up by the road side for waiting. Then treat it as a target. Then we would park the car in the nearby vicinity. I and Kwok Kam-wah, Mok Wai-lun will alight and approach the Mercedes Benz, to open the door and push the driver into the car, and I will steer the 'Mercedes Benz', while Kwok Kam-wah, Mok Wai-lun will snatch the driver's money. Ah Bo will steer the previous vehicle to lead the way. After snatching the money, will push the driver out the car. Mok Wai-lun said don't give the car 'Mercedes Benz' back to the driver, (but) steer the car to park in a quiet carpark Ah Lun said he has way to find people to trade in the car". This is a direct quotation from what was recorded at that interview.

2. On the force of his verbal statement made to the police at the time when he was approached and these written signed statements admitted by the Judge, it did not take the court very long to come to the conclusion that the applicant was guilty as charged.

3. In Grounds 1, 2 and 4 of his Grounds of Appeal, the applicant, in substance, maintains that the statements ought not to have been admitted. In Ground 3, the applicant queried why the 4th defendant, Cheung Man-kit could ever have been acquitted of the charge of conspiracy to rob, laid on virtually identical evidence the Crown led against him and the other defendants.

4. We have given a summary of the facts as well as the main reasons advanced by the trial judge for returning a verdict of guilty against the applicant. On the circumstances in which he was found and the statements, verbal and recorded, and the statement given later to the police, the applicant was rightly convicted. The statements were ruled admissible by the Judge. It would not be profitable to inquire into the acquittal of the 4th defendant of conspiracy to rob, albeit charged on the same evidence. We find no substance in these grounds.

5. In his supplementary Ground of Appeal, the applicant complains of his counsel's failure to obey instructions. Counsel did not, so the applicant maintains, seek to call the 4th defendant, Cheung Man-kit. According to the applicant, Cheung Man-kit would have been in a position to clear the charge against him. This court has had the benefit of the affidavit of counsel and the oral evidence given to-day. Counsel confirms the contents of her affidavit in which, she says, there was no instructions for calling the 4th defendant. The 4th defendant came to court in November and even had coffee, on at least one occasion, with counsel and the applicant. The case had been adjourned for a period two months after the conclusion of the prosecution evidence for medical reports. If counsel had been instructed to call the 4th defendant, there would have been ample opportunity to have him summoned before the Judge. The applicant admits that he did not include this complaint against counsel in his original Grounds of Appeal. He does not dispute that this matter was not brought to the notice of the Director of Legal Aid when he applied to be legally assisted. The applicant felt aggrieved, but, he says, the matter was brought into focus only when he was serving his term in prison. Counsel tells the court that she was aware of the contents of the 4th defendant's statement given to the police, which implicated the applicant in the conspiracy charge. The applicant himself is unsure, as he was, what the 4th defendant would have told the court. If counsel had been instructed to call the 4th defendant, at least some steps would have been taken to ascertain what the 4th defendant would be able to say. The applicant's case is that counsel acknowledged the instructions given to her and assured him that the witness would be called. Apart from the attendance of the 4th defendant in November, and his coffee meeting with the applicant and counsel in November, the 4th defendant had been put on probation and he could have been readily made available for giving evidence in court in the case against the applicant. These are matters which do not, on the balance of probabilities, lend weight to the allegation made by the applicant against his counsel. Having heard the counsel and the applicant and bearing the mind the circumstances as related by both, we have no hesitation in accepting the evidence of counsel. We are driven to the conclusion that the applicant has failed to establish his complaint against counsel. We find that no instructions to call the 4th defendant were, in fact, given by the applicant. His supplementary ground, therefore, fails as do his other Grounds of Appeal. For all these reasons, the application for leave to appeal against conviction must, therefore, be dismissed and we dismiss it.