NG YUK MING and Others v. R.

IN THE COURT OF APPEAL

1993, No. 317
(Criminal)

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J U D G M E N T

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Silke, Acting, C.J.:

1. This is the judgment of the court.

2. Three defendants appeared for arraignment, before Patrick Chan, J., on an indictment containing 14 counts. They were Ng Yuk Ming (D1), Chau Sai Ming (D2) and Tsang Tin Hei (D3). D1 pleaded guilty to counts 1,2,5,6,9 and 12 and D2 pleaded guilty to counts 1,2,5,6,9 and 13. Upon those pleas being accepted, the Crown offered no evidence on the 3rd, 4th, 7th, 8th, 10th, 11th and 14th counts against D1 and similarly, against D2, in respect of the 3rd, 4th, 7th, 8th, 10th and 14th counts. Both were acquitted on those counts.

3. D3 pleaded not guilty to counts 5 and 6. In an abstract of the indictment placed before the jury these counts became the 1st and 2nd counts. D3 was convicted after trial of both counts.

D1 received a total sentence of 25 years' imprisonment. D2 a total sentence of 28 years' imprisonment; and D3 a total of 20 years' imprisonment. We shall go into the individual sentences imposed on each count later.

4. D1 and D2 sought leave to appeal against their sentence. D3 sought leave to appeal against his conviction and then, out of time, sought leave to appeal against his sentence.

5. Counts 1 and 2 related to an armed robbery which took place on 26th October 1991 in the heart of Central. Count 1 was the robbery, count 2 was one of possession of firearms at the time of committing a robbery. On that day, four armed men entered the Chow Tai Fook Jewellery Company. Staff were threatened and gold and jewellery to the value of about $20 million was taken.

6. The police were alerted and upon, their arrival, shots were fired at them. The robbers, in the course of their escape, hijacked a motor vehicle.

They exchanged fire with another police party and a police inspector was wounded. They abandoned that car but hijacked another one to assist in the escape. This also was abandoned.

7. Counts 5 and 6 related to another robbery on the same shop which took place on 12th March 1992 and count 5 was the robbery with count 6 possession of a firearm in the course of it.

8. This robbery was carried out by five or six armed men. They subdued a security guard and stole a shot gun. Gold and jewellery to the value of some $12 million was taken in the course of that robbery. Shots were fired in the shop itself. The police were alerted and they arrived as the robbers were attempting to flee. Shots were exchanged between the robbers and the police party. The robbers seized a security guard as hostage. They released him in Pedder Street. They hijacked a taxi and escaped.

9. At 6.50 p.m. that same evening a party of police cornered D1 and D2 together with a man named Yip - of whom there will be more later. The men resisted arrest pulling their guns and firing them. The bullet from one of the guns hit a passer by in the leg. The three men evaded capture. This incident gave rise to the 9th count.

10. At 2.40 a.m. on the next morning, that is 13th March, D1 was arrested by the police. He had a gun in his possession and he also was found with some of the stolen property. This related to the 12th count.

11. As the result of a public appeal by the police D2 surrendered himself later that day. Count 13 related to his possession of a gun.

12. The man Yip was arrested in May of 1992 and was separately tried before another judge. He pleaded guilty to the two sets of robberies and to the possession of guns in the course of them and was sentenced to a total of 28 years' imprisonment.

As to D3

13. It was the case for the Crown based on the accomplice evidence of D1, Ng Yuk Ming, on the contents of D3's cautioned statement and on video tapes of the robbery itself, that he was a full participant in the discussion of, preparation for and carrying out of the robbery which took place on 12th March.

14. D3 was the only Hong Kong belonger of all these defendants. The first robbery had been carried out by mainlanders who had come here for that purpose and the second robbery was also carried out by mainlanders with the addition of the help of D3. Of the mainlanders Yip was the only one who was not an illegal immigrant in that he had a right of residence in Hong Kong and had in fact worked here for some years. He had commuted between China and Hong Kong.

15. When this matter first came on for hearing before us on 18th February 1994 we adjourned the various applications. Those of D1 and D2 were adjourned pending the trial of Yip to see what, if any part, either of them might play in that trial. As D3 had made various allegations against counsel it was necessary to have a copy of those allegations sent to counsel at trial for their comments.

16. Subsequent to that adjournment, Yip sent a letter to this court claiming on behalf of D3 that D3 had been framed by Ng Yuk Ming. It was Yip's assertion that he did not know D3 at all. So that these allegations could be considered and investigated, D3 was granted legal aid. At this present hearing he was represented by Mr. Mullick. Mr. Mullick has very helpfully detailed to us the various interviews which had taken place with Yip, the consideration of Yip's cautioned statements and of the transcript of the sentencing process in respect of Yip. We have had the benefit of a sight of the latter. In respect of this aspect of the appeal, we are fully satisfied, and D3 has not sought to persuade us otherwise, that Yip had, in various statements, referred specifically to D3 as being a participant in the second set of robberies. He seemed to be attempting to exonerate D3 by relying on the name used for D3 by Ng Yuk Ming, "Ah Tit", in contra-distinction to his real name of Tsang Tin Hei. We had no doubt there was nothing in Yip's allegations. We are satisfied that there is nothing in this point.

17. D3 complained that his counsel was inhibited by the trial judge in cross-examining Ng Yuk Ming; that the trial judge has stated that he would report counsel's conduct to the appropriate authority. Before us at this hearing he altered his complaint of interference to one of interference by the judge in the cross-examination of one of the police constables by this counsel. He further complained that statements made by Ng while he was in Lai Chi Kok had not been disclosed to the defence.

18. Mr. William Lee who appeared as counsel for him at trial informed the court in his comments that he was never inhibited in his cross-examination and that at no time had the judge made any suggestion of reporting him to the Bar Council. This was confirmed by Mr. Donald who appeared for the Crown at trial.

19. From a perusal of the clerk's record of the course that the trial took it is clear that a cautioned statement of Ng was disclosed to the defence at a late stage - this in the course of the cross-examination of Ng who was PW14 at the trial. Counsel however was given the full of an afternoon to consider the contents and, when the cross-examination recommenced on the following morning, he made no application in respect of it. This point has no substance.

20. In a document sent to this court, dated the 24th July 1994, D3, in addition to his original homemade grounds alleging misdirections by the trial judge, set out ten further points. He has addressed us upon those items in the course of this hearing. We do not intend to go through them in detail for the majority relate solely to evidential matters, all of which were before the jury. One allegation is that his counsel failed to present his visit permit to the court. But his departures and returns to Hong Kong were set out, as agreed facts, for the consideration of the jury. It was unnecessary therefore to enter into evidence any permit he had.

21. He criticises the language used by the trial judge in the course of the summing up. We have considered the contents of this admirably clear summing up and find no substance in any of the complaints made by D3.

The trial judge carefully and concisely directed the jury on the issues that were before them, on the nature of the witness Ng Yuk Ming and his evidence, on the allegations made in respect of the taking of the cautioned statement of D3 and on the evidence and the law generally. We find nothing that gives us any cause for concern.

22. D3's application for leave to appeal against conviction was refused.

Sentence

23. These were very serious offences. Shots were fired in the centre of the business district in Central which threatened the lives of ordinary passers-by. The police, in a brave attempt to arrest the perpetrators of the robberies were fired upon and members of the police force were injured. There was a total and callous disregard for the safety of all in the vicinity by these armed and determined men. We note that, of the property stolen over the two robberies, some $1 million has been recovered. This related to the 12th March robbery, items stolen having been either dropped by the perpetrators as they fled, found in the hijacked taxi or found on D1 at the time of his arrest. Very substantial sentences were merited and indeedreceived.

24. In considering the applications in respect of sentence, we have borne in mind the relationship between the sentences passed on D1, D2 and D3 for the offences for which they were involved and do not concentrate on any starting point taken by the trial judge. We have born in mind the sentence that another judge passed on Yip.

25. Dealing first with D2 and D3, for D1 is in a special category to which we shall come back, it is clear that Yip played a greater role in these robberies than did either D2 or D3. There was evidence in his trial in the form of admitted facts and which did not impinge upon the trials of D1, D2 or D3, that explosive devices had been tested in China and had been brought into Hong Kong so that they could be thrown at the police to avoid arrest. It was a fortunate fact that they were not put to that use otherwise there would have been great havoc caused in the crowded areas of Central.

26. In mitigation, counsel for Yip did emphasise - and this was not contested by the Crown - that Yip was not the ringleader of these evil men. But be that as it may, we are concerned with the difference, and there was a clear difference, in the role played by D2 Chau, less so that played by D3 Tsang in comparison with the role played by Yip. We considered that D2 Chau should receive some differential in sentence as between himself and D1 and Yip. We considered that a sentence for this young man, who was under 21 at the time of the commission of the offence, in a total of 25 years' imprisonment would be sufficient to reflect his criminality.

27. The individual sentences imposed on D2 were as follows: for the first robbery - count 1, he received 12 years' imprisonment; for the connected charge of possession of a firearm at the time of committing of that robbery - count 2, he received 8 years' imprisonment directed to run consecutively to count 1. On the second robbery - count 5, he received a sentence of 10 years' imprisonment with 8 of those years to be consecutive to the other two sentences. The sentences on the 6th, 9th and 13th counts were respectively 6 years' imprisonment, 10 years' imprisonment and 6 years' imprisonment all of which were concurrent.

28. To give effect to our decision we would set aside the sentence on count 1 of 12 years and replace it with a sentence of 9 years. All the rest of the sentences remain the same and with the same orders in respect of them.

29. We would make it clear that we are not suggesting that, by itself, 9 years' imprisonment for count 1 would have been an appropriate sentence.

D3 Tsang Tin Hei

30. His sentence was imposed on 8th June 1993. His application for leave out of time was not filed until 19th April 1994 - a very considerable period out of time. In his affirmation grounding his application, he simply says that, after thorough consideration, he felt the sentence was too severe. Before us in support of his application, he says that he should not have been found guilty as he did not commit the offence. We have already dealt with that aspect of his application. His conviction was a fully justified one.

31. We have considered the quantum of the sentence of 20 years' imprisonment in total lest by refusing leave we might shut out a meritorious appeal. We find nothing wrong either relative to the sentences passed upon the other defendants or in relation to the accused himself in that sentence. It was thoroughly deserved.

32. We therefore refused to grant D3 the indulgence he sought.

D1 Ng Yuk Ming

33. Ng had given evidence which substantially affected the conviction of D3. He had been fully co-operative with the police, and with the prosecution, from one month after his arrest until after the trials of both D3 and of Yip. His name was on the back of the indictment preferred against Yip. His statements implicating Yip were in the depositions. We have little doubt that the statements he had made played their part in the eventual plea of guilty entered by Yip.

34. The behaviour of Ng subsequent to his arrest is something which the courts encourage. He has helped to convict other participants. The saving of great time in trials where a plea results is of advantage to the public in that it saves money and to other accused in that their trials can come on at an earlier date. Again, relative to the sentences imposed on the other defendants, we think that the trial judge should, perhaps, have given a greater discount for Ng's co-operation and help, in particular the giving of evidence.

35. We were informed by Mr. McCoy, and we accept, that Ng is in physical danger as a result of that which he has done. He is confined by himself by the officers of the Correctional Services to protect him. He fears that, if D3 is released before him, his family, and he has two young children, would be in danger. We are aware, as the trial judge could not have been, of his assistance and his willingness to give evidence, indicated by the fact that he was a named witness, in the trial of Yip.

36. The only way in which such conduct can be encouraged is by making allowance for it when arriving at the sentence to be imposed. We thought considering the matter overall and honouring Ng's conduct, a sentence of 19 years in total would be the proper one.

37. The individual sentences imposed upon him were these: for the first robbery he received 12 years' imprisonment and for its related charge of possession of a firearm in the course of it 8 years' imprisonment, those sentences were set to run consecutively. This gives a total of 20 years' imprisonment. For the second robbery he received a sentence of 6 years of which 5 of those years were to be consecutive to the other sentences thus giving the 25 years total which he received. The sentences on the 6th, 9th and 12th counts which were respectively 4 years' imprisonment, 12 years' imprisonment and 6 years' imprisonment were set to run concurrently.

38. To give effect to our decision, and again we are not suggesting that the individual sentences which we impose are necessarily proper for the individual offence, we would set aside the sentence of 12 years' imprisonment imposed on the first count and substitute for it a sentence of 11 years' imprisonment. That, together with the consecutive sentence on the second count which we will leave unaltered, gives a totality of 19 years' imprisonment. We would further order that the whole of the 6 years' imprisonment imposed on the 5th count be concurrent with the other sentences imposed.

39. In the event, we gave leave to both D1 Ng and D2 Chau to appeal against sentence, treated the hearings of the application as the hearings of the appeals and allowed the appeals to the extent indicated.