HKSAR v. LAI WAI CHUN

CACC 241/2023 [2024] HKCA 1139

On appeal from [2023] HKCFI 3372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 241 OF 2023

(ON APPEAL FROM HCCC NO 310 OF 2020)

_______________

_______________

__________________________________

R E A S O N S  F O R  J U D G M E N T

__________________________________

1.  On 5 December 2023, the applicant was convicted after trial before Deputy High Court Judge Woodcock (the Judge) and a jury of one count of conspiracy to rob. On 8 December 2023, the applicant was sentenced to 9 years’ imprisonment.

2.  On 22 December 2023, the applicant filed a notice for leave to appeal against conviction and sentence.  In a letter dated 1 May 2024, the applicant filed three grounds of appeal against conviction and one ground of appeal against sentence.  In a further letter dated 20 June 2024, she filed an additional ground of appeal against conviction.

3.  The hearing concerned an application for bail pending appeal and leave to appeal against conviction and sentence.  The applicant appeared in person, having had legal aid refused on 13 March and 22 August 2024.  She was refused legal assistance by the Bar Free Legal Service Scheme on 7 June 2024.

4.  At the conclusion of the hearing, I refused the applicant leave to appeal for conviction and sentence.  As a consequence, the application for bail pending appeal was also refused.  These are the reasons for my decision.

The prosecution case

5.  It was alleged that on 3 July 2019, the applicant conspired with four other persons, namely Leung Tsz Chung, So Muk Kin, Hung Kwan Yu and So Ka Hei, to rob Fong Chun Yi (Fong) and Zhang Liangwei (Zhang), who arrived that morning in Hong Kong from mainland China.  The applicant and the others planned to follow and intercept the taxi carrying Fong and Zhang and rob them of an amount of cash of over US$1.68 million that they had in their possession.

6.  On that morning, a team of police officers were deployed to the Lok Ma Chau Control Point (the Control Point) and the vicinity of San Tin Interchange, Lok Ma Chau (the Interchange).  At 6:00 am, PW1, a surveillance officer, observed the applicant walking from the Control Point and wandering around the cross-border coach station.  At about 6:06 am, the applicant approached the taxi stand and made a telephone call.  PW1 who was about 2 to 3 metres away, overheard the applicant say, “Green taxi, KF716, one male, one female, white recycling bag containing cash”.[1]  It was quiet at that time, with few pedestrians and vehicles at the location. After the call, the applicant immediately walked towards the departure hall to return to mainland China.  PW1 then lost sight of the applicant.

7.  In the meantime, the police had stopped the taxi, KF716, that was travelling in the direction of the Interchange, soon after Fong and Zhang had boarded it outside the arrival hall of the Control Point.  At about 6:15 am, the police intercepted a private vehicle, NP 4205, with four men on board near the Interchange.  When the police ordered the men to alight from the vehicle, the driver attempted to drive away and, in doing so, crashed into two police vehicles.  The men inside the vehicle were wearing face masks and gloves.  They tried to run away but were subdued by the police.  Upon arrest, two of the men were found to be in possession of torch-shaped stunning devices.  Inside the vehicle, the police seized various weapons, including two beef knives with cloth handles, another stunning device, a hammer, a screwdriver, some face masks and clothing, a red Samsung mobile telephone with a prepaid SIM card number 5106 0599 (the Red Samsung), and a Honda vehicle key.[2]  

8.  Upon instructions, PW1 went through immigration and located the applicant on a cross-border bus at about 6:18 am.  He identified that he was a police officer and escorted the applicant out of the bus.  He later handed her over to PW2, who was also a member of the police team deployed on this operation.  PW2 arrested and cautioned the applicant near the coach station outside the departure hall.  PW2 searched the applicant and found in her possession various personal documents and travel cards, a small amount of cash, one white iPhone with a SIM card, and a pink Samsung mobile telephone without any SIM card (the Pink Samsung).  An examination of the Pink Samsung, showed that it had used a prepaid SIM card number 6438 1036.  The call record showed that at 5:55 am and 6:06 am on 3 July 2019, the number 6438 1036 had called 5106 0599.

9.  At about 2:35 pm, the police located a Honda private vehicle bearing false registration plates, FD 8200, in Ta Kwu Ling, which could be operated by the Honda key found in NP 4205.  Face masks, gloves and various personal belongings of two of the four co-conspirators, including Hong Kong Identity Cards, were found inside the vehicle. The police also found two cans of thinner in the vicinity.

The defence case

10.  The applicant elected to testify at trial.  In 2019, she lived in Shenzhen and had been working as a parallel goods trader, bringing goods from Hong Kong to mainland China for about 10 years,  earning on average about HK$20,000 a month.  On 3 July 2019, she got up early intending to cross the border to pick up goods in Hong Kong and bring them back to mainland China. The best time of the day to engage in parallel trading was between 5:00 am and 7:00 am because the Mainland Immigration personnel changed shifts during this period.  As it was raining very heavily that morning, she was drenched by the time she arrived at the arrival hall in Hong Kong.  She then went straight from the immigration check point to the ladies toilet.  She spent 5 to 6 minutes queuing up to use a cubicle.  She left the cubicle, and took some tissues from the hand drying area, and went into another cubicle with the intention of drying off her wet shoes and clothes.  Inside the second cubicle, she found the Pink Samsung on the floor.  She picked it up and noticed there was no SIM card inside.  She put the Pink Samsung in her pocket, intending to keep it for herself, and left the toilet.  She thought of returning home first to change her clothes because she was drenched.  While sitting on the bus waiting to leave the Control Point, a police officer came on board and asked her to alight from the bus.  During the entire period of 18 minutes that she spent in Hong Kong, she was never near or around the coach station in Hong Kong, nor did she make any telephone call.  She denied having said the words on the telephone that PW1 claimed to have overheard.  She did not know the four men or the two victims.

The grounds of appeal

11.  The applicant in her submissions filed with the Court advanced the following grounds of appeal. 

12.  In the appeal against conviction, the applicant complained that the evidence of the prosecution witnesses lacked reliability (Ground 1); the Judge failed to remedy the reference to her as a targeted person (Ground 2); the trial was conducted unfairly, and the jury were not directed properly (Ground 3); and PW1’s evidence in respect of the telephone conversation was not supported by objective evidence (Ground 4).

13.  In the appeal against sentence, the applicant complained that the sentence was manifestly excessive (Ground 1); and the Judge failed to take into account her limited role and involvement in the planned robbery (Ground 2).

The appeal against conviction

Ground 1 - The prosecution evidence lacked reliability

14.  The Judge correctly directed the jury that the main issue of this case was the credibility of the witnesses.[3]  She instructed them to form their own judgement on each witness and gave the appropriate directions on how the evidence should be evaluated.[4]

15.  The applicant’s complaint that PW1’s witness statement was an important piece of evidence of the case is totally misconceived, as it was not a document relied upon by the prosecution during the trial.  It was PWl’s testimony in court that mattered.  In any event, the defence made no suggestion that the contents of the witness statement were incorrect or inconsistent with her oral evidence.

16.  The applicant, in oral submissions, elaborated upon this ground by merely repeating the defence case at trial.  She complained that the prosecution only presented “bits and pieces” of the evidence, claiming that her travel movements over the six months prior to the offence showed that she regularly travelled in and out of Hong Kong from mainland China.  She argued that this supported her defence that she was a parallel goods trader and that it was not unusual for her to be in and out of Hong Kong for a relatively short period of time.  Even accepting that to be the case, the evidence linking her to the plot to rob the two victims was cogent and compelling. 

17.  The immigration records showed that the applicant and the two victims arrived in Hong Kong from mainland China via the Control Point within five minutes of each other.  The applicant arrived first at 5:52 am.  She only stayed in Hong Kong for 18 minutes and returned to mainland China at 6:10 am.  She came to Hong Kong to observe the victims and report on their location.  She observed them getting into a green taxi, KF716, and made a telephone call reporting their location.  She then proceeded to leave Hong Kong via the departure hall.  The Pink Samsung was found in her possession when she was arrested.  It had no SIM card, but a prepaid SIM card had been used on the telephone with the number 6438 1036, and the records showed that at 5:55 am and 6:06 am that number had called 5106 0599.  That was the number of the Red Samsung which was found in the vehicle with the four robbers. The applicant called 5106 0599 using the Pink Samsung at 6:06 am.  PW1, who was monitoring and observing the applicant, saw her make a telephone call and overheard her say, “Green taxi, KF 716, one male, one female, white recycling bag containing cash”.[5]

18.  The applicant’s explanations regarding her conduct on the day and the possession of the Pink Samsung were obviously rejected by the jury. 

Ground 2 - The Judge’s failure to deal with the reference of a “target person”

19.  In her evidence, PWI referred to the applicant as “the target person”.[6]  In the absence of the jury but before the conclusion of PW1’s testimony, the Judge raised the issue with the prosecutor and indicated her intention to deal with the matter by a direction before the summing-up.[7]  After the close of the prosecution’s case later that day, there was a discussion on the issue, during which defence counsel proposed that a special direction along the lines suggested by the Judge should be given when the trial resumed in the morning and that “it might be mentioned again slightly” during the summing-up.[8]  The Judge agreed with this suggestion,[9] and consulted both parties on the contents of the draft direction the next morning.  Both the prosecution and the defence were satisfied with the draft,[10] and the Judge directed the jury accordingly.[11]  During the summing-up, the Judge reminded the jury of the direction without unnecessarily emphasising the point.[12]

20.  The Judge by her directions ensured that the phrase “target person” had no adverse prejudicial effect by operating unfairly on the applicant: HKSAR v Shakeel Ahmed [13].  The remedial action taken by the Judge appropriately dealt with the matter.

Ground 3 - The trial was conducted unfairly and the jury had not been directed properly

21.  The applicant complained that PW1 was not a reliable and credible witness as she often changed her evidence in court.  She explained that it had been raining heavily on that day and that PW1’s observations of her took place outside.  She submitted that it was inconceivable that PW1 could only hear a small portion of the alleged telephone conversation that lasted 84 seconds.  She contended that the defence could have casted doubt on PW1’s evidence by simulating the scenario for the jury to consider.  This implied criticism of defence counsel was later withdrawn by the applicant in her subsequent written submissions. 

22.  The respondent argued that the Judge’s summary of PW1’s was fair and comprehensive.  In her evidence, PW1 identified the applicant as the person she had under observation on the day in question.  She said she initially kept a distance of 5 to 10 metres when following her to No. 18 coach station, opposite the green taxi stand.  The applicant wandered around the area, and spent most of the time looking towards the taxi stand.  When PW1 saw the applicant make a telephone call at 6:06 am, she got as close as she could, about 2 to 3 metres behind the applicant, to try and listen to the conversation.  She overheard the words uttered by the applicant. She said that at the time it was quiet: there were not many people at the location and very little vehicular traffic.[14]

23.  In cross-examination of PW1, the defence suggested that there were many pedestrians and travellers arriving into Hong Kong and catching buses at 6:00 am, as well as heavy vehicles passing by the coach station.  It was further suggested that it was so noisy around PW1 and the applicant that PW1 could not have clearly overheard what the applicant said on the telephone.  PW1 disagreed with these suggestions.[15]  PW1 was cross-examined extensively on what she actually heard when the applicant spoke on the telephone, canvassing the applicant’s voice level and the content and details of the conversation.[16]  PW1 disagreed when it was put to her that she had never seen the applicant near the coach station or the taxi stand at the material time.[17]  

24.  PW2 was cross-examined on the weather condition as to whether it was raining or windy, and on the condition of the applicant’s clothes during the arrest.  PW2 could not recall these details but said she did not feel that the applicant’s clothes were wet when she conducted a body search.  She also did not notice a lot of pedestrian traffic at the arrival hall that morning.[18]

25.  The factual issues raised by the applicant were the subject of cross-examination and were addressed by the Judge in a balanced and comprehensive summing-up to the jury. 

Ground 4 – PW1’s evidence on the applicant’s telephone conversation was not supported by objective evidence

26.  During a body search of the applicant conducted at about 6:25 am on 3 July 2019, she was found in possession of the Pink Samsung.[19]  The Pink Samsung had used a prepaid SIM card with the number 6438 1036 that had been activated on 20 June 2019.[20]  The Red Samsung found in the private vehicle, NP 4205, contained a prepaid SIM card with the number 5106 0599, which had been activated on 10 April 2019.[21]  The telephone records of 6438 1036 and 5106 0599 were adduced into evidence as admitted facts.[22]

27.  PW1’s evidence was that she saw the applicant pick up her telephone and make a call at 6:06 am on 3 July 2019.[23]  Although the Pink Samsung did not have a SIM card when it was found on the applicant, the telephone records showed that the number 6438 1036 had called 51060599 twice at 5:55 am and 6:06 am.[24]  In contrast to the applicant's submission, there was evidence in support of PW1’s evidence that the Pink Samsung could make outgoing calls at the material time.

28.  The applicant’s submission on the Pink Samsung was addressed by the defence counsel in his closing speech.  He submitted that when the applicant picked up the Pink Samsung in the toilet, there was no SIM card in it, and therefore could not have made any calls with the Pink Samsung.  She did not call 5106 0599 during the short time that she was in Hong Kong.  He also suggested that one possible inference was that the original owner of the Pink Samsung had discarded the SIM card after calling those involved in the intended robbery.[25]  These issues have been put before the jury for their consideration.

29.  The applicant in her written submissions complained that she did not understand the admitted facts and the implications they had on her case.  This implied criticism of the defence counsel was later withdrawn by the applicant in her subsequent written submissions.

30.  It was a matter for the jury whether they accepted PW1’s evidence, taking into consideration the whole of the evidence and the issues in the case.

The appeal against sentence

31.  The Judge found that this was a serious case of armed robbery that was thwarted by the police with their timely intervention.  The four men intercepted by the police were armed with weapons, including stun gun devices, beef knives, a hammer, a screwdriver and restraints, such as rolls of tape and zip ties.[26]  They would have to stop the taxi in the middle of the road as it travelled from Control Point in order to carry out the robbery.  It seems that it was anticipated that after the robbery, the four men were to drive to Ta Kwu Ling where the Honda private vehicle bearing false registration plates was parked.

32.  As the telephone records show, between 20 June 2019 and 3 July 2019, there were frequent telephone calls between the Pink Samsung and the Red Samsung almost on a daily basis.  The Judge regarded these calls to be evidence of substantial pre-planning involving the applicant.[27]

33.  In mitigation, defence counsel submitted that the applicant’s role was minor and different from her fellow conspirators.  She was not the mastermind, and was not present at the scene of the planned robbery.  After she relayed the information regarding the victims to the others, she left for mainland China immediately.  There was no evidence that the many telephone calls between the Pink Samsung and the Red Samsung from 20 June 2019 to 3 July 2019 were related to the robbery; that she knew or met any of the men; that she had any discussions with the men about the robbery plan; that she knew how much was in the bag carried by the victims; or that the robbery would be carried out with weapons such as stun guns, beef knives, hammers or screwdrivers.[28]  Whilst accepting that there were aggravating factors such as the number of robbers and the potential violence on the victims, defence counsel submitted that there was no actual violence or injury inflicted on the victims who did not suffer any loss.[29]

34.  The Judge found that the applicant played the role of entering Hong Kong from mainland China with the two victims and keeping them under observation.  She was responsible for relaying information to the four men, such as the type and registration number of the vehicle the victims were travelling in and the type of bag that contained the cash the victims were carrying.[30]  The Judge considered the applicant played a pivotal role in executing the conspiracy by leading the four men to the victims and the cash, and that her role was as serious and culpable as the four men.[31]

35.  In applying the guidelines laid down in Mo Kwong-sang v R[32], the Judge adopted a starting point of 5 years’ imprisonment because weapons and restraints were to be used or displayed to the victims and taxi driver.[33]  Although there was no direct evidence that the applicant knew the weapons and restraints found in the vehicle would be brought to the planned robbery, she would have reasonably foreseen that some weapons and restraints would be used on the victims and the taxi driver in order to carry out the robbery on a vehicle travelling along the road after departing from the Control Point.  The nature and extent of the robbery were not only evidenced by the weapons and items the robbers had in their possession but also by the provision of a getaway vehicle with false number plates parked in the vicinity.

36.  The Judge identified that there were serious aggravating factors in the present case.  First, there were four potentially heavily armed robbers, each of whom had access to the weapons and restraints found in the vehicle.  This warranted an enhancement of the starting point by 2 years to 7 years’ imprisonment.[34]  Secondly, the amount of money that could have been stolen, namely over US$1.68 million.  Although, the applicant claimed that she did not know the exact amount, the Judge reasoned that the applicant and her co-conspirators must have expected the victims to be carrying a large sum of money for them to carry out such an elaborate and well planned robbery.[35]  This warranted an enhancement of 1 year to 8 years’ imprisonment.  Thirdly, the consequential harm and trauma that the victims and taxi driver would have experienced if the robbery had been executed.[36]  This warranted an enhancement of 1 year to 9 years’ imprisonment.

37.  As stated by Bokhary PJ in Seabrook v HKSAR[37]for the offence of robbery, the scale of seriousness will be calibrated according to the circumstances of aggravation.  This is exactly what the Judge did when sentencing the applicant for the present offence.  This was a well planned and dangerous robbery that was fortunately foiled by the intervention of the police. The consequences to the victims and others innocently involved could have been extremely serious, if not life-threatening.  In place was an elaborate plan to carry out this robbery – there were four disguised robbers, who were armed and equipped to attack the victims, and two vehicles: one for the robbery and the other as a getaway vehicle (with false number plates).

38.  The applicant referred to several other robbery cases[38] that she submitted were similar to her case where the defendants received lesser sentences.  The cases were very different and not relevant to the present case.

39.  In HKSAR v Lee Pau-chuen[39], the role of a member of a robbery gang who supplied information about the potential victim was considered to be very important to the conspiracy to rob.  As the Judge correctly noted, the applicant was pivotal in executing this elaborate and well planned robbery.  It would seem from the telephonic contact she had with the robbers that it extended beyond identifying and providing information as to the details and location of the victims.  More importantly, in the information she provided to the robbers, she knew that they were carrying a quantity of cash in a recycled bag.  It was reasonable to infer that she would have known that the robbers were well equipped to commit the robbery with the real possibility of violence being inflicted on the victims.  This conspiracy to rob warranted a sentence of the level imposed by the Judge against the applicant and her co-conspirators.  As noted by the Judge, there were serious aggravating factors in this robbery, namely the number of robbers, the use of weapons, and the potential violence to be inflicted on the victims.  The sentence of 9 years’ imprisonment was appropriate and consistent with the sentencing guidelines.

Conclusion

40.  In light of the foregoing, I refused the applicant leave to appeal against conviction and sentence.  As a consequence, I also refused the applicant’s application for bail pending appeal.

41.  The applicant was reminded of her right to renew her application for leave to appeal against conviction and sentence to the Court of Appeal, but she was also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending her appeal, if the Court were to come to the view that there was no justification for the renewal of her application.

[1]  Appeal Bundle (AB), 26S-27A. 

[2]  AB, 2-4, Admitted Facts, at [6]-[10].

[3]  AB, 18L-M.

[4]  AB, 19S-21B.

[5]  AB, 26S-27M.

[6]  AB, 73K.

[7]  AB, 74D-I.

[8]  AB, 76T-77L.

[9]  AB, 78N.

[10]  AB, 79D-K.

[11]  AB, 79Q-80B.

[12]  AB, 35D-F.

[13]  HKSAR v Shakeel Ahmed [2022] 1 HKLRD 560, at [30]-[40].

[14]  AB, 35G-Q.

[15]  AB, 36G-K.

[16]  AB, 37F-L.

[17]  AB, 37Q-S.

[18]  AB, 38Q-U.

[19]  AB, 12: Admitted Facts, at [11].

[20]  AB, 14: Admitted Facts, at [18].

[21]  AB, 14: Admitted Facts, at [16].

[22]  AB, 14: Admitted Facts, at [19] and [17].

[23]  AB, 35M-N.

[24]  AB, 27G-J.

[25]  AB, 34A-I.

[26]  AB, 56R-T.

[27]  AB, 57B-F.

[28]  AB, 55L-T and 57F-J.

[29]  AB, 55T-56B.

[30]  AB, 53Q-S.

[31]  AB, 53E-F, 57J-L and 60I-K.

[32]  Mo Kwong-sang v R [1981] HKLR 610.

[33]  AB, 57M-N.

[34]  AB, 57N-P.

[35]  AB, 57Q-S.

[36]  AB, 57T-58B.

[37]  Seabrook v HKSAR(1999) 2 HKCFAR 184, 192.

[38]  HKSAR v Li Yin-chun, HCCC 223/2021, HKSAR v Gurung Ashish and Anor, HCCC 215/2021 and HKSAR v Ghale Raj, HCCC 216/2021.

[39]  HKSAR v Lee Pau-chuen, unrep., CACC 48/2011, 19 August 2011.