THE QUEEN v. LEE MING AND ANOTHER

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Five defendants appeared for trial, before Hooper J. and a jury, upon an indictment containing four counts. The first and second counts concerned all five and they were, respectively, conspiracy to rob contrary to Common Law and carrying arms and ammunition with criminal intent contrary to s.l8 of the Firearms and Ammunition Ordinance Cap.238 - the intent alleged in the Particulars was to commit an arrestable offence. The third count concerned only CHAN Ho-shan - D5 - and was resisting arrest with arms and ammunition. The fourth count concerned only LAM Cheung-por - D3 - and was taking a conveyance without authority contrary to s.14(1) of the Theft Ordinance Cap.210. CHAN Kin-sang - D1 - CHAN Keung - D4 - and CHAN Ho-shan - D5 - pleaded guilty to the first and second counts and, in respect of D5, no evidence was offered on the third count. They were sentenced respectively to a total of 7 years', 8 years' and 8 years' imprisonment.

2. LEE Ming - D2 - was found guilty after trial on counts one and two and sentenced to a period of ten years' imprisonment on each offence to run concurrently. D3 - was found guilty by the jury on counts one, two and count four and was sentenced to periods of imprisonment of eight years in respect of counts one and two and six months in respect of count four, the first two to run concurrently with the third consecutive to them giving a total in all of eight and a half years. D1, D4 and 05 originally sought leave to appeal against their sentences but those applications have been abandoned and we are no longer concerned with them. D2 seeks leave to appeal against his convictions as does D3, LAM Cheung-por.

3. When the matter came on for hearing we were concerned with the additional grounds filed by D3 which alleged impropriety at the trial by counsel then representing him. D3 was unrepresented. We thought it right that these complaints should be investigated and that he be given legal representation for that purpose. The ground as stated is a very general one and clearly needs to be detailed. The counsel concerned should be aware of the nature of the complaints and be given an opportunity, if necessary, to comment upon them. Additional evidence may well be required. We therefore granted a Legal Aid Certificate and adjourned the hearing of D3's application to a date to be fixed.

4. We had for consideration therefore only the application of D2,LEE Ming.

5. We dismissed the application for leave to appeal against conviction and stated we would give our reasons later which we now do.

6. It was the case for the Crown that all five defendants had agreed to commit a robbery but the carrying into effect of that agreement was frustrated for they were all arrested before it was perpetrated. A police operation had been mounted on the 7th of June - the conspiracy period was stated to run between the 1st of May 1988 and the 9th day of June 1988 - and in the course of surveillance various officers saw the applicant driving his own car, CU329, around the area of Tsimshatsui near the Brilliant Star Restaurant and the Jade Garden Restaurant, the latter situated at the junction of Hart Avenue and Carnarvon Road. D3 was seen to board that car making its total complement of passengers, and driver, five. The car drove around the area along Chatham Road, Kimberly Road, Austin Road, Pine Tree Hill Road, Hillwood Road, Nathan Road and back to Hart Avenue where it stopped. D3 got off and walked along Hart Avenue into Carnarvon Road. The car then drove off and did another circular movement in the area coming back to Hart Avenue at about 11 a.m.

7. D3 was seen by a woman police constable walking up and down outside the Jade Garden Restaurant. Then a car, CY8976, arrived into which he got and drove away, following car CU329.

8. On the 8th of June the surveillance continued, this time with the aid of a video recording machine. At 9.58 a.m. CY8976 passed the area of Carnarvon Road but its driver was not identified. At 10.07 a.m. D3 walked past and was seen to look into various jewellery shops. At 10.24 a.m. a Mercedes Benz car, CM6394, drove past. That car had been hired by the applicant that morning after an abortive attempt to hire it on the previous evening.

9. At about 10.30 a.m. the Mercedes Benz was stopped in Carnarvon Avenue near Hanoi Road by the police. The applicant was the driver, D1 was sitting next to him in the front passenger seat, D4 was behind the driver in the rear passenger seat and D5 also occupied the rear passenger seat. D1 had a paper bag containing three fish net bags, a screwdriver wrapped up at his waistband and a pair of white leather gloves in his right trousers pocket. D4 had a long barrelled revolver in a leather belt at his waist to the front. D5 had a screwdriver, a set of keys, a pair of leather gloves and a black coloured mask. Upon interception he drew a gun and was shot by one of the police party.

10. Shortly afterwards D3, having boarded a taxi outside the Union Bank in Chatham Road, was arrested in that taxi in Chatham Road near Hart Avenue.

11. There was undisputed evidence that the car CY8976 had been removed from a parking area without the consent of the owner on the 5th June. The lock had been tampered with. It was alleged that D3 had taken it.

12. Great reliance was placed at trial upon cautioned statements made by the defendants. The signature of the applicant on his, and this was put in cross-examination to the police witnesses and denied, was said to be the result of violence and inducements offered to him and further, the statement was fabricated by the police. These allegations were supported by the applicant in the evidence he gave. All those matters were canvassed before the jury and they were directed upon in full by the trial judge. No complaint is made as to those directions.

13. It was the defence of the applicant that on the 7th of June he was simply helping D5, a business acquaintance of his, to collect some antiques in Prat Avenue. The meeting he had with D3 was purely coincidental as was the presence of other people in the car when he boarded it.

14. On the 8th of June he had made an arrangement to meet a friend and take him with others to the New Territories. Because his own car was too small he hired Mercedes Benz CM6394. He then met D5 in the Brilliant Star Restaurant, and again by coincidence Dl and D4 happened to be with him. He offered D5 a lift and had started to drive around the area of Granville Road, until out of the blue, he was arrested.

15. It was not contested that, if a properly directed jury were to believe as true the contents of the applicant's statement, then there was ample evidence upon which to found the convictions. It is submitted by Mr. Cheng Huan, with him Mr. Lok, who appeared for the applicant in this court, that the jury was not so properly directed. He complains of a passage appearing at page 6 of the summing-up which begins:

"You can give those statements whatever weight you think they deserve. It is your function to decide whether or not the confession is true and you should consider all the circumstances in which it was made when assessing the weight to be attached to it. If you are unsure for whatever reason that the confession is true, then you must disregard it."

Then comes the particular sentence upon which Mr. Cheng Huan relies for the Judge went on:

If on the other hand you are sure the confession is true, then you may rely on it even if it was or may have been made as a result of oppression or other improper circumstances."

16. In support of his contention that that sentence contained a manifest error in law which would have had the result of misleading the jury, Mr. Cheng Huan relies on that which was said in R. v. MAN Ching-ip (Crim.App. 543 of 1980 - unreported). There Sir Alan Huggins, V.-P., giving the judgment of the Court set out the passage in the summing-up upon which counsel in that appeal had submitted that it could not be right. In it the trial judge had, in effect, directed the jury that they should first consider whether a statement was true and then decide what weight they would attach to it, the possibility of inducement being relative only to the latter issue - the same point that Mr. Cheng Huan wishes to urge upon us as emerging from the summing-up here. The Court in MAN Ching-ip felt that the jury must have been confused and Sir Alan Huggins, V.-P. went on:

"The possibility of inducement goes to the truth of the statement and, again, it would be wrong for a jury to be satisfied that a statement was true, and, consequently, to attach weight to it, if they thought there was a possibility that it had been obtained as a result of improper inducement."

17. While Mr. Cheng Huan himself did not include Prasad v. R. [1981] 1 W.L.R. 469 or CHAN Wei-keung v. R. [1967] 2 A.C. 160 in his list of authorities, the Crown did. However he sought comfort from both of those cases saying that they were indistinguishable from the facts which based that which was said in MAN Ching-ip. Be that as it may, and we are not with Mr. Cheng Huan on the point, the full context of the summing-up here in which the complained of passage appears should be considered. Having directed the jury that the case against each of the accused depended very largely on what it is alleged they had said in those statements, the judge said:

"Now what you got to think about when you are considering these alleged statements is this: were the contents of those statements, allegedly made by the accused were they in tact said by him? Did they come from his own mind and, if so, are they true or false or are they partly true and partly false, bearing in mind your conclusions as to the circumstances in which they were made."

Then comes the passage already cited after which the trial judge went on:

"You would have heard what each defendant had said in the witness box about the way he came to sign these records which have been exhibited. You have heard him deny making any confessions. Each defendant has made grave charges against the police officers concerned indicating that he was subjected to pressure in the form of threats and inducement and physical violence to sign the documents containing the statements or answers of which he was not the author. If such contentions are true, then the conduct of the police officers concerned would be outrageous. If you think there is any truth or substance in these allegations made against these police officers or if you are left in any doubt about this, you may well feel it would be unsafe to place any weight on the admissions or confessions contained in those statements and concern yourselves only with the other evidence. If on the other hand you think there is no substance in the allegations made against these police officers, obviously you can more confidently consider them and give them what weight you think they deserve. It is entirely a matter for you, members of the jury."

18. In our judgment in the light of those directions, taken overall and in context, we do not think that the judge fell into the error instanced in MAN Ching-ip and, in consequence, to have misled the jury. They must clearly have been aware that, in considering the weight - and this must inevitably involve the truth as well - which they should give to those statements that they were required to consider as a matter of fact whether the allegations made by the defendants had substance. If they found those allegations to be made out, then they could have been under no illusion that it would be unsafe to give any weight to the statements. We did not consider this ground to have been made out.

19. The second ground concerns the nature of the charge in count 2. It was, Mr. Cheng Huan emphasizes, laid under s.18 of the Firearms and Ammunition Ordinance. It should, he contends, have peen laid under s.13 of that Ordinance. In parenthesis we note that no point on this was taken at trial. The distinction Mr. Cheng Huan seeks to draw is that s.18 relates to the "having with him" of arms whereas s.13 relates to the possession of arias.

20. However, it must equally be remembered that s.18 refers to the intent in the carrying of the arms. We accept that the two offences are different and this is underlined by the difference of penalties: s.18 carrying a maximum penalty of life imprisonment and s.13 a maximum penalty of 14 years' imprisonment. Mr. Cheng Huan referred us to the decision in R. v. Kelt. The citation gave us was (1977) 3 All E.R. 1099. We note however that it is also reported ' in [1977] 1 W.L.R. 1365 and (1977) 65 Crim. App. R. 74.

21. Kelt had taken part in a robbery. A few days after the robbery had taken place the police went to another man's address and there found a robbery Kit including a gun used by Kelt in the course of the robbery. Three months later the police went to Kelt's house to arrest him. It appears that on their arrival he was in bed, but was arrested in his kitchen where the police found another robber's Kit in which there was a gun. On that basis he was charged with an offence under s.18. At trial a submission that there was no evidence he was carrying the gun found in the kitchen, in that he did not "have it with him" in the sense intended by s.18, was overruled.

22. In giving the judgment of the Criminal Division of the English Court of Appeal, Scarman L.J. (as he then was) said at p.1103:

"We have come to the conclusion that it is necessary, when summing-up a case in which an offence under s.18 is alleged for the judge to make it clear to the jury that possession of the firearm is not enough, that the law requires the evidence to go a stage further and to establish that the accused had the firearm with him. Of course the classic case of having a gun with you is if you are carrying it. But, even if you are not carrying it, you may yet have it with you, if it is immediately available to you. But if all that can be shown is possession in the sense that it is in your house or in a shed or somewhere where you have ultimate control, that is not enough."

23. Mr. Cheng Huan contends that it is therefore incumbent on a trial judge in all s.18 trials to draw the same distinction. But the context of that which Scarman L.J. said was, in our judgment, limited to the facts in Kelt. Despite the apparent generality of his introductory words, we do net think that he intended that a Kelt direction should be given in cases where a factual situation such as that in the instant case exists.

24. Here the applicant was driving the car. In it were the men with the guns. If his statement were to be believed he knew, first, that the guns were to be carried and, second, that each of the men were, in fact, carrying those guns for they had shown them to him in the car. The charge was a joint charge against all the defendants including the applicant. In directing the jury the trial judge here said:

"Now in order to commit this offence, there are four ingredients which must be proved, one the element of having with him; secondly with knowledge that it was with him; thirdly any of the firearms and/or ammunition alleged and; fourthly with intent to commit an arrestable offence."

The third and fourth ingredients were, again if the jury accepted the prosecution case, fully proved. The Judge then went on:

"You cannot nave it with you if you do not know it is there. A member of a group of people who are together may have it with him even though it is not physically on his person, if it is with the group of people who are together and he knows it is there."

Some paragraphs later in the summing-up he said this:

"Now I have told you that this offence may be committed by more than one person in a group. Perhaps I should go into that a bit more. Section 89 of the Criminal Procedure Ordinance: provides: any person who aids, abets, counsels or procures the commission by another of any offence shall be guilty of like offence. Therefore, if this offence is committed by another who we might call the principal offender, and the defendant is present with a common intent that the crime should be committed, and he encourages or assists the principal offender to commit the offence, he is equally guilty."

25. In Kelt it was necessary for the judge to draw a distinction between the "possession" in the English s.16 and the "having with him" in s.18 - the latter being pari materia with our s.18, the former with our s.13. No such distinction arose here on the evidence. In our judgment, therefore, the trial judge did not err, nor, as Mr. Cheng Huan suggests, do the passages in the Crown's opening and closing indicate that reliance was being placed on mere possession. The directions which the trial judge gave were proper and it was not necessary to further direct as in Kelt.

26. Before leaving this judgment we wish to reiterate that which has been said on many occasions before. When authorities are cited then, if the case is reported in the Law Reports, that is the citation that should be afforded to this court. It is only where a case is reported solely in the All England Reports that those reports should be made use of.