HKSAR v. NGAI MAN YIN AND ANOTHER

CACC 70/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 70 OF 1997

(ON APPEAL FROM DCCC 490 OF 1996)

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J U D G M E N T

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Liu, J.A.:

1. The 1st Applicant, Ngai Man-yin and the 2nd Applicant, Ho Chi-fai were both convicted of conspiracy to cause explosion likely to endanger life or damage property, possession of explosive substance and allowing themselves being carried in a vehicle without authority by Her Honour Judge Chua in the District Court. Ngai Man-yin and Ho Chi-fai were each sentenced to 5 years' imprisonment for the 1st offence, 5 years' imprisonment for the 2nd offence and 1 month's imprisonment for the 3rd offence. In both cases, all sentences were ordered to run concurrently. They are to serve a total term of 5 years each. They now apply for leave to appeal against conviction and sentence.

2. The facts are uninvolved. On 8 May 1996 at 1.15 a.m., outside the gates to a block of flats at 10-12 Peak Road, the Peak, the applicants, together with a driver, in a Mercedes Benz were stopped by two plain-clothes policemen. On opening the rear door, the police saw, on the floor in front of Ngai's feet, a white plastic bag. Ngai and Ho were sitting in the rear with the driver and his girl-friend in front. In the white plastic bag, the police found two green bottles of liquid with cloth stuffed into its opening and a pair of working gloves. A search of the car by the police produced another petrol bomb. In all, three were retrieved, two in the white plastic bag and one in the back-seat pocket of the driver's seat. On the floor of the right rear passenger seat was another pair of working gloves. The driver and the applicants were arrested and taken to Central Police Station. The liquid in the three bottles was analysed to be white petrol, an inflammable solvent. On the evidence of the Government Chemist, these bottles so filled and prepared were petrol bombs, containing explosive substance.

3. The prosecution relied on the circumstantial evidence, the petrol bombs, records of interviews of these applicants, and the lighters found on the person of both. They were convicted accordingly.

4. The applicants seek leave to appeal against both conviction and sentence.

5. Applicant Ngai queries the definition of explosive substance and maintains that the charges were improperly laid. He disputes the conclusion reached by the Government Chemist that the bottles would explode if lit and thrown. He seems confused by the allegation in the conspiracy charge that the petrol bombs could cause danger to life or damage to property. He seeks to rely on the fact that there was in fact no explosion. He is not at all pleased with the extensive coverage of this case by the press. He disputes the statements given by him as voluntary on account of oppression, assault and the timing for the recording of his interview.

6. Applicant Ho is equally dissatisfied with the judge's admission of his statements for, among other things, the less than satisfactory consideration by the judge of the injuries he claimed to have received from police officers. He maintains that Dr. Ng was incorrect as to time so that medical evidence on or relating to his injuries was not accurately related or appreciated by the judge. Applicant Ho maintains that the police officers concealed the truth. He feels aggrieved by his conviction as well as his sentence. At the last hearing, applicant Ho sought the whole transcript for supporting his complaint that the judge intervened too often with counsel's questioning and had in effect rendered his cross-examination ineffective. However, he is unable to specify any of these alleged improprieties of the judge's intervention or the extent to which he says he was prejudiced in the course of the trial. Applicant Ho further maintains that the police fabricated evidence against him. He also complains of the disparity between the evidence of the police as to the location of the bottles and the position of these bottles depicted in the prosecution photographs. He is not at all persuaded that the judge drew proper inference from his possession of a lighter. Like his co-defendant, he is displeased with press reports, particularly on his limping physical condition which he claimed to have been sustained in a 1993 traffic accident.

7. The charge was one of conspiracy between the applicants and others to cause an explosion by three petrol bombs likely to endanger life or cause damage to property. The prosecution did not assert that there was an explosion. Both applicants are unable to specify what the adverse effect on the trial caused by press publicity was. In the trial within the trial, the judge considered all the circumstances against the allegations made against the police together with medical evidence made available to the court. The judge accepted the statements against the applicants as voluntary statements and relied on the admissions in them.

8. Only Applicant Ngai gave evidence at the trial proper. It was quite unsurprising that the judge was able to be satisfied beyond reasonable doubt that the applicants were guilty as charged in the conspiracy charge and the possession charge.

9. This court has examined the transcript but is unable to conclude that the judge's interference in questions and conduct had prevented either of these applicants, through counsel, from putting forward their defences, testing prosecution witnesses, making full submissions - in effect, from having a fair trial. In general, the judge was seeking to put in proper context what was being said. Although taciturnity and patience could have been better displayed, the conduct of the trial by counsel was not, in any way, adversely affected or rendered ineffective.

10. This court is not persuaded that any of the grounds advanced by the applicants has been substantiated. The convictions in the conspiracy charge and in the possession charge against both applicants were well founded. This court is not prepared to grant their application for leave to appeal against conviction.

11. As to the sentencing exercise in the conspiracy charge and the possession charge, the judge observed material guidelines and paid regard to proper considerations. The sentence is not manifestly excessive or otherwise wrong in principle. Again, this court cannot interfere. Their respective applications are also dismissed.

12. Coming to the charge for allowing themselves to be carried in a vehicle without authority, the 1st applicant testified that the driver had no knowledge of the bottles of petrol bombs, but the judge did not believe him. The driver was, nevertheless, acquitted of the conspiracy charge and the possession charge. Apparently, the driver was not fixed by the court with knowledge of the criminal intent of these applicants. These applicants were friends of the driver. The part owner of the Mercedes Benz vehicle in which the petrol bombs were found, testified that the driver and his friends had his permission to use his car. The driver was acquitted of taking the vehicle out on the road without the owner's authority. There was no evidence that the part owner had instructed the driver that he should not carry petrol bombs in his car, but the part owner did say that he would not have allowed his car to be used for criminal purposes. In the circumstances, no irresistible inference of prohibited user could be drawn. It was not established that the car had been taken or was being used for any prohibited purpose or without authority. Whether or not the driver had or might have knowledge of what these applicants intended to do, there was no evidence that permission for these applicants to travel in that car was withdrawn. Even if the driver had no knowledge of the petrol bombs, there was no evidence that he was prepared to carry these applicants in the car only for lawful purposes. In convicting these applicants of allowing themselves to be carried in the Mercedes Benz with knowledge that it had been taken without authority, the judge had to rely on the inferences that the part owner had in fact prohibited the Mercedes Benz from being used for criminal purposes and that both the driver and these applicants knew of that fact. It was not open to the judge to draw these inferences as irresistible inferences. We are unable to accept her analysis. The conviction of allowing themselves to be carried in a vehicle knowing the same having been taken without authority cannot stand against either of the applicants. We allow their application for leave to appeal against conviction and treat the hearing as the appeal proper. We allow the appeal, quash their conviction and set aside the sentence. The convictions on the conspiracy charge and possession charge stand as do the respective sentences passed on them by the judge.