THE QUEEN v. MA HING YIP

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JUDGMENT

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Clough, J.A. delivering the judgment of the court :

1. Both the applicants, who were respectively the second and third defendants at their trial, were convicted in the District Court, together with the first defendant, by His Honour Judge Baily on a charge of conspiracy to rob. The second defendant was also convicted at the same trial of handling stolen goods which were connected with the conspiracy charge. The second and third defendants were sentenced to undergo a period of detention in a detention centre and a training centre respectively.

2. On the 3rd December 1986 we granted both applications for leave to appeal, allowed the appeals of the second and third defendants and quashed their convictions. We indicated that we would give our reasons later and we now do so.

3. The victim of the alleged conspiracy was a young girl aged 15. Her uncontested evidence was that she had met the first defendant when he was doing decoration work in her parents' home. He had introduced her to the second defendant. It was not contested that on the 17th May 1986 she was robbed, by a man with a knife, of personal jewellery and $200 odd in cash at a time when she was in the company of the second defendant and waiting to meet the first defendant. The case for the Crown was that the third defendant committed the robbery in furtherance of a conspiracy between the three defendants under which the second defendant was to set up the victim for the robbery by the third defendant and that a wrist chain was to be taken from the second defendant to give the impression that the second defendant was also a victim of the robbery.

4. All three defendants were arrested in the early hours of the 19th May 1986. The victim was unable to identify the third defendant as the robber but all three defendants made cautioned statements to the police in which, if believed each of them implicated himself and his co-defendants.

5. The second defendant made two statements. The second statement contained no admissions and was not the subject of any ground of appeal. In his first statement the second defendant admitted the conspiracy and the part he and his co-defendants played in it. He admitted that after the robbery the first defendant had given back to him the wrist chain which the third defendant had taken from him. He further admitted that the first defendant had given him $620 as his share of the proceeds of the robbery and that he himself had sold for $420 a bracelet taken in the robbery.

6. The third defendant admitted the conspiracy between the three defendants in his cautioned statement. He said that he had carried out the robbery and that at the time he held a knife which the first defendant had given him. He described how he had returned to the first defendant after the robbery and how they had gone off to sell the victim's jewellery taken in the robbery and admitted receiving his share of $560 from the proceeds. He said that he had pocketed the $260 which he had taken from the victim.

7. In his cautioned statement the first defendant admitted the conspiracy and told a similar story to that told by his co-defendants whom he implicated in the conspiracy and the division of the spoils of the robbery.

8. The admissibility of the statements of all three defendants was disputed but all were admitted by the judge after holding a voir dire in each case. Whilst the evidence of the victim had established that she had been robbed, the evidence of the alleged conspiracy, of the parts played by the defendants in that conspiracy and the disposal of the proceeds of the robbery was to be found in their cautioned statements. They elected not to give evidence nor to call any witnesses in their defence.

9. In his judgment the judge mentioned that defence submissions had been made to the effect that it would be unsafe to convict the defendants solely on the evidence of their contested cautioned statements because consideration had to be given to the truth or otherwise of their contents and to the weight of the evidence contained in them. The judge also mentioned a submission by the defence that statements made by one defendant are not evidence against another defendant.

10. The latter submission requires no authority because it is clearly right as a general rule, although there are exceptions to the general rule, of which Mawaz Khan v. The Queen ⁽¹⁾ is an example.

11. In their grounds of appeal both the second and third defendants complain inter alia that the judge, when determining the guilt of each of those defendants, wrongly took into consideration, in relation to one defendant, the cautioned statements made by the other two defendants which contained matter implicating all three defendants.

12. The judge's approach was to assert, rightly, that there was an exception to the general rule in relation to "... a statement made in the course and pursuance of a joint criminal enterprise to which the co-defendant was a party." He added "There is, obviously, also an exception in the case of alleged co-conspirators." He then went on to say:-

"All three give a similar detailed account of conspiring to rob the victim; of having robbed the victim, and of disposing of the proceeds of the robbery. These detailed accounts of the robbery itself, and what items were stolen, are corroborated by the uncontested evidence of the victim."

13. After observing that he accepted the contents of the first and second defendants statements regarding the manner in which they had handled respectively the stolen gold necklace and wrist chain the judge concluded as follows:-

"I find that the evidence of the victim together with the evidence in the statements admitted in evidence are sufficient to warrant convictions against all three defendants on the 1st charge of conspiracy; against Dl on the 2nd charge of handling stolen goods and against D2 on the 3rd charge of handling stolen goods." (Emphasis supplied)

14. In our judgment the passages quoted above from the judgment make it clear that the judge did not confine his consideration in relation to each defendant to the contents of the statement of that defendant only. On the contrary they showed that he considered the statements of all three defendants together and that he was impressed in coming to his decision of guilt, by the similarity of the detailed account which they all contained, not only of the alleged conspiracy to rob but also of the manner of disposal of the proceeds of the robbery.

15. In taking this course the judge considered he was acting within the. exception, mentioned above, to the general rule that a statement made out of court by one defendant is not evidence against another defendant. However the exception in the case of the declarations of a person engaged in a common enterprise or conspiracy does not apply where, as here the cautioned statements of the defendants were narratives or admissions of past events and were not made in furtherance of the alleged conspiracy: see Phipson on Evidence, 13th edition, paragraph 8-15; R. v: Blake and Tye⁽²⁾; Cross on Evidence, 6th edition at pp. 526-7.

16. Accordingly we are satisfied that the judge fell into error when considering the statements of all the defendants together and giving weight to each of them in reliance on their detailed similarity. This error affects the weight given to the statements both in relation to the conspiracy charge against both the second and third defendants and in relation to the handling charge against the second defendant. As in the case of R. v. Daniel and Watson⁽³⁾, we considered this error was too fundamental to permit the convictions to stand. We accordingly quashed the convictions without hearing counsel on the further grounds of appeal raised on behalf of the second and third defendants.

(1)    [1967] A.C. 454 (P.C.)

(2)    (1844) 6 Q.B. 126

(3)    [1973] Crim. L.R. 627