R. v. YIP CHI HANG, ALAN

IN THE COURT OF APPEAL

1996, No. 238

(Criminal)

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J U D G M E N T

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Ching J.A. (delivering the judgment of the Court) :

1. The applicant was found guilty of five charges in the District Court. Charge 1 was that on or about 27th August, 1995, he and the first accused conspired with Chong Chi Hung and others to commit robbery. Charge 2 was that on or about 28th August, 1995, he, the third and the fourth accused conspired with Chong Chi Hung, Law Kin Wing and others to commit robbery. Charge 3 was that on 31st August, 1995, he together with Law Kin Wing robbed a woman called Ma Kam Lin. Charge 4 was that between 26th and 29th August, 1995, he and the third accused conspired with Chong Chi Hung, Law Kin Wing and others to make unwarranted demands of money with menaces from shops and restaurants in Belcher's Street. Charge 6 was that between 1990 and 3rd September, 1995, he was a member of a triad society namely the Wo Yee Tong. On each of the first four charges he was sentenced to imprisonment for four years and on Charge 6 he was sentenced to imprisonment for one year. All of the sentences were ordered to be served concurrently. He now applies for leave to appeal against both conviction and sentence.

2. The only evidence against the applicant consisted of three cautioned statements made by him. He challenged their admissibility but after a trial within a trial the Judge was satisfied beyond reasonable doubt that they had been made voluntarily and allowed them to be given in evidence. They are lengthy and in some parts rambling but the picture that is presented is clearly as follows. About five years before the first statement dated 3rd September, 1995, he had been recruited into the Wo Yee Tong. In turn, in mid 1990 he recruited the first accused. On 25th August, 1995, he recruited Chong Chi Hung. The next day he recruited both the second accused and Law Kin Wing. August appears to have been a busy month for him. He adopted the habit then of meeting with his minions at various places and giving instructions to them to carry out certain offences. So it is that he admitted that he instructed them on the dates and places set out in Charges 1, 2 and 4 and that they acted upon his instructions, albeit unsuccessfully. Part of those instructions was that some of them should go to rob single women and in fact there was such a robbery in the Tai Hang Road although the applicant was not present and this is the subject of Charge 3.

3. The offence of conspiracy, the subject of Charges 1, 2 and 4, is complete where there is an agreement to commit an offence. That agreement is shown when a suggestion is made that an offence should be committed and other persons agree to it. As a matter of law, it matters not that the offence is neither attempted nor successful. So far as Charge 3 is concerned, a person who counsels or procures the commission of an offence is guilty of it even though he is not present when it is being committed. If the Judge below concluded that the applicant's statements in relation to these charges were to be believed the inevitable result was that he was guilty of them. This was a matter of fact for her as the trial Judge and nothing has been said to incline us to interfere with her conclusions. The application for leave to appeal against conviction on Charges 1, 2, 3 and 4 is dismissed.

4. So far as Charge 6 was concerned, there was expert evidence that in modern times the various ceremonies of induction into a triad society have been relaxed. There is no longer a ritual by which any ceremony is required or in which the inductee pays a fee. None of this happened when the applicant joined the Wo Yee Tong. The Judge was entitled to accept this evidence and she did so. In addition, the applicant clearly acted as a triad in recruiting his minions and in instructing them to commit crimes. There was an incident in relation to the fourth charge when they went to blackmail a restaurant owner in Belcher's Street who referred them to a man called "Man Kei" who the applicant admits was his superior in the triad society. Upon his contacting Man Kei about the matter he was told that the territory was that of Man Kei and that he should not interfere. On the totality of the evidence there is no merit in the application to appeal against this conviction and it is dismissed.

5. So far as the appeal against sentence is concerned, we need only say that the sentences imposed by the Judge below were well within the permissible limits and we cannot interfere. That application is also dismissed.