R. v. NG CHI WAI AND ANOTHER

IN THE COURT OF APPEAL

1996, No. 346
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court):

1. On 31 May 1996 the two applicants were convicted of conspiracy to rob a fruit shop before Bokhary J and a jury. The offence took place between 28 September 1995 and 1 October 1995. At the time they were both police officers. On 3 June 1995, Ng was sentenced to 12 years imprisonment and Woo to 9 years imprisonment.

The facts

2. Originally, three were on trial for this offence but the third man was acquitted. It was Ng's plan to rob the Ching Ling Fruit Shop in Causeway Bay. He had debts he wished to clear. An undercover police officer who gave evidence had been introduced to Ng as a reliable person who had experience of robbery. The undercover police officer was present when Ng and Woo planned the robbery in the police station. During this discussion roles were allocated between Ng, Woo, a driver and the undercover officer. Ng drew a plan of the location of the fruit shop and its interior. The undercover officer was given the task of tying up the victims with wire and adhesive tape which was to be supplied by Ng. During this discussion, according to the undercover officer, Woo joined in with the advice "Don't be too gentle".

3. Ng produced a black bag to Woo and the undercover officer, containing two knives and equipment suitable for gagging and tying victims. Arrangements were made about carrying weapons, the getaway and where the proceeds were to be shared.

4. Towards the end of the meeting as they were leaving Ng's office, they came across the 3rd accused. He told the undercover officer to be calm. He would wait for him. It would appear that he was to be the driver.

5. Following the plan, Ng, the undercover officer and the 3rd accused met. The 3rd accused drove them to the vicinity of the fruit shop. Ng had a gun with him which he showed to the undercover officer and the black bag was in the car. Later, Ng left and returned with Woo. Certain preparations were then made. Woo took gloves from the black bag, handed a pair to Ng and kept a pair for himself. The 3rd accused was given instructions about the getaway route. Ng then reconnoitred the area after which he called off the robbery because too many police were about. The party then returned to the police station in the car and on arrival were all arrested.

The evidence

6. The undercover officer gave evidence. This was supported against Ng by the finding inside his office of the sketch, toy guns, adhesive tapes, gloves and the black travelling bag along with other potentially incriminating items.

7. Ng confessed to the offence in three written statements. Woo denied the offence but admitted meeting the undercover officer. He admitted presence in Ng's office during the conversation when the plan was drawn. He further admitted that Ng had asked him to help him in a robbery. Then, he agreed that he had met Ng near the fruit shop, had got into the car, and had been asked again to help in the robbery and had been handed a pair of gloves. He contended that on each occasion, the reason for the meeting was to ask Ng for the repayment of a debt, claiming that on each occasion he refused to join in the robbery.

8. The 3rd accused was interviewed. He admitted driving a car which Ng had borrowed. He contended that he drove only at Ng's direction and that he was an innocent driver helping out a friend who could not drive.

9. Both applicants gave evidence in their defence. The 3rd accused did not.

Ng's application

The Confessions - "two sets of evidence"

10. In grounds (1) to (4) of this applicant's notice of appeal, Miss Draycott, who appears for him, submits that the judge misdirected the jury on his confession statements. At p. 13, the judge directed the jury that there were "two main sets of evidence". The first was the evidence of the undercover officer and the second Ng's confessions. She then directed them that "either of those two sets of evidence is enough even on its own, if you are sure of its reliability, to convict the 1st accused. So you can convict him on either." Later, on a number of occasions, she refers to these confessions as being "full confessions".

11. On these, Miss Draycott takes a number of points. The first is that the confessions, even if accepted, do not amount to a full confession of the offence, because there is no admission in specific terms that an agreement to rob was made. Miss Draycott submits that in order to convict the jury would have to infer an agreement even if everything in the confessions is accepted.

12. She adds weight to this by urging that the judge did not sufficiently direct the jury that mere talk about the commission of a crime is not sufficient in itself to establish conspiracy and that by the use of the expression "full confession", she usurped the function of the jury by inviting them to assume the necessary inferences to establish the offence. Finally, she urges that by directing the jury that it was open to them to convict on either the undercover police officer's evidence, or the "full confession", she invited the jury to act upon part of the evidence and to ignore the rest even if they rejected it.

13. Miss Draycott is correct when she submits that the confessions do not go as far as saying "we agreed". In this sense, therefore, the statements do not amount to a "full confession". However, as the statements describe detailed joint planing, the gathering together and purchase of necessary weapons and equipment, and finally assembly at the scene and examining "the surroundings to see if the robbery should be done", the inference that there was an agreement to rob in the absence of other evidence is overwhelming.

14. The first question for this Court is whether from the whole of the summing-up the jury could have been misled into thinking that the offence could be made out without the applicant having agreed to rob with at least one other. In other words, were they aware of the necessity to draw the obvious and overwhelming inference from the contents of the statements if they accepted them?

15. The second question is whether the jury knew that they had to take into account the whole of the evidence in reaching their conclusion.

16. The answers to these questions can be found in the following:

(1) There were full and careful directions upon the burden and standard of proof;

(2) The judge carefully directed the jury that the facts were entirely for them "as to the facts you are the sole judges. It is for you to decide what evidence you accept and what evidence you reject".

(3) Also, the jury were directed that all evidence had to be considered: "Also, if I omit to mention evidence which you think is important, you must take it into account even though I have omitted to mention it".

(4) The judge directed the jury in detail that mere knowledge or mere intention to commit a robbery or mere desire that one should be committed were not enough without an agreement. Further, the jury was directed that the agreement could be inferred from the plotting, planning and preparation if that was the only reasonable inference.

17. Having regard to the whole of the summing-up, there was no danger that the jury were misled or that their function was usurped or that they concluded that they could ignore part of the evidence from the directions which Miss Draycott criticises. However, it is correct that the use of words such as "sets of evidence" and "full confession" in isolation may give the wrong impression. The use of such terms is unwise. It is always necessary for the jury to consider all the evidence, and whether or not a confession amounts to an admission of the crime is always a matter for the jury and the jury alone.

18. For these reasons we refuse leave on grounds (1) to (4).

The judge's direction on lies

19. In ground (5) the applicant complains that the jury were directed on lies when it was unnecessary to do so and that in any event the direction was flawed.

20. The Crown's submission at trial which led to the direction was that the evidence of both the 1st and 2nd applicants was "lying evidence". This was an attack on their credibility. It was not suggested by the prosecution - nor could it have been - that any material lie could support the prosecution case. In these circumstances any direction on lies - other than the one dealing with credibility and a warning that accused persons may lie for many reasons other than guilt - was unnecessary and possibly misleading.

21. In isolation, the direction "only if you are sure that he did not lie for some such or other innocent reason, then his lie or lies can support the prosecution case" is a misdirection. However, although this direction should not have been given, the way in which the matter was left to the jury was that they had to consider the real issue on the evidence. The direction continued "but a jury must never convict any body just because he had lied. The prosecution is not asking you to do anything of that kind. They are asking you to convict on the whole evidence as the law applies to that evidence". In the result, therefore, our conclusion is that the jury was not misled.

Directions on lies generally

22. This is yet another case in which unnecessary problems have arisen because of a direction on lies. The circumstances in which a proven and material lie can support the prosecution case are rare. As this Court has said on many previous occasions allegations of lying arise in almost every criminal case. Those allegations almost always relate to credibility and not proof of guilt. It is important to recognise that lying in a general way is not proof of guilt. Lying is relevant only to credibility. If there is the danger that the jury will be misled into thinking that lying goes to proof of guilt, the usual warning that accused persons may lie for reasons other than guilt and such lies do not prove guilt is necessary. Where there is a clear factual issue on guilt for the jury's consideration, a direction that a lie may support the prosecution case will hardly ever be appropriate.

23. The rare circumstances in which a direction that a lie may support the prosecution case may be appropriate are as follows:

(1) Where the accused relies upon an alibi;

(2) Where the judge concludes that it is necessary or desirable for the jury to look for support for some piece of evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted.

24. In such cases, the direction must be tailored to the case so that the material lie is identified along with the evidence of admission or proof that it is a lie. An appropriate "Lucas" direction will also be necessary. But see the guidance in R v Burge and Pegg[1996] 1 CrAppR 163 with which we agree.

25. If a full direction on lies is contemplated, it is wise for judges to discuss the matter with counsel before the summing-up. Unnecessary directions to the jury are misleading to them. When given, the directions ought be simple, specific and tailored to the case.

The judge's summary

26. The final matter urged by the 1st applicant is that the judge was unfair to take the opportunity to summarise the whole of the prosecution case when answering a question posed by the jury. The jury asked two questions: first about the admissibility of confession statements; secondly about the evidence given from the witness box. In explaining the position, the judge summarised the whole of the prosecution case, demonstrating which evidence was evidence in the case and which in the case of confessions statements was admissible only against the maker. In short, the explanation was full, clear and proper. There is nothing in this submission.

27. This application is refused.

The 2nd applicant's case

28. Mr Lawrence Lok QC appears with Mr Raymond Tsui for the 2nd applicant. At the beginning of his submissions, we gave him leave to rely upon the submissions made for the 1st applicant upon the judge's directions on lies. Mr Lok emphasised that at trial the prosecution never sought to rely upon lies told in the witness-box in support of the prosecution case. The submissions related to credibility only. For the reasons we have given we refuse leave to appeal on this ground.

The acquittal of the 3rd accused

29. Mr Lok's main contention concerns the direction concerning this applicant and the 3rd accused, who was acquitted. The judge directed the jury that as far as they were concerned:

"... the evidence against them is so similar that it would be unsafe to convict one if you are unsure about the other."

Mr Lok submits that this was a well-founded direction and that the consequence of the jury convicting the 2nd applicant and acquitting the 3rd accused is that the verdict against the 2nd applicant is so inconsistent with the other that it cannot stand. Mr Lok developed the argument by a consideration of the evidence against the 2nd applicant compared with that of the 3rd accused.

30. Having examined the evidence against each, it is clear beyond argument that each case depended upon the evidence of the undercover officer supported by the exhibits and - in the case of each - confession statements which did not amount to a full admission of the offence. Each of these two were said to have taken a different role in the conspiracy and in short, the evidence against the 2nd applicant, if accepted, shows a greater involvement and was more comprehensive than that against the 3rd accused. Absent the direction complained of, it would be impossible to say that acquittal of the 3rd accused was so inconsistent with the conviction of the 2nd applicant that the conviction was unsafe and ought to be quashed. The question therefore is whether the direction given by the judge renders the verdict inconsistent.

31. It is necessary to consider the judge's direction in its full context. To illustrate the point it is necessary to set it out from 17Q to 18O:

"The law on this point can be illustrated by this example. First, suppose that A and B are charged with conspiracy with each other. Secondly, suppose that the evidence against A includes a full confession while the evidence against B does not. Thirdly, suppose that the jury is sure about A's confession but not sure about any of the rest of the prosecution's evidence. Well, in those circumstances, the jury could find against A (on his own full confession) that he conspired with B even though they could not find against B (there being no evidence against him of which they are sure) that he conspired with A. So they could convict A while acquitting B. That is why it is open to you to convict the 1st accused while acquitting the other two. But, as I have already told you, I'm not suggesting that you should do that. I am just explaining to you the position in law.

But as far as the other two are concerned, the evidence against them is so similar that it would be unsafe to convict one if you are unsure about the other. Of course, that does not mean that you should convict one just because you are sure about the other. To convict any accused, you have to be sure of his guilt after giving his case separate consideration based purely on the evidence relevant to him."

As was her duty, in this passage, the judge directed the jury on the difficult question which accused could be convicted on their own and which could only be convicted if at least one other was also convicted of the conspiracy. She rightly directed the jury that it was open to convict the 1st applicant without either of the other two. But it was not open to the jury to convict the 2nd applicant unless the 1st applicant or the 3rd accused was also convicted. In other words, if the 1st applicant was acquitted, it was not open to the jury to convict only one of the other two. The passage in the summing-up which we have set out is better understood if it is read as one paragraph. The directions may not have been quite as clear as they might have been. They are difficult directions to give. But there is no reason to think that the jury did not understand them in the way that they were intended and there is no reason why these verdicts should not stand. They were not inconsistent.

32. This application is also refused.

The 1st applicant's application on sentence

33. The 1st applicant received a sentence of 12 years imprisonment He submits that his sentence is manifestly excessive in all the circumstances. He accepts that the judge understood and took into account the role he played but relies upon the following matters:

(a) His family circumstances and the effect of the conviction upon their families.

(b) The difficulties he will face serving imprisonment as a former police officer.

(c) The loss of pension rights, housing and similar privileges.

(d) The fact that the robbery was not carried out.

(e) That although knives were to be used and the victims were to be tied up, imitation firearms and not real ones were to be used.

(f) That although as a police officer this was a serious breach of trust towards the public, there was never any intention of the conspirators using their position as police officers to facilitate the offence. In other words they were not intending to deceive victims that they were police officers on duty by wearing uniform and they were not intending to use their police weapons.

34. With the possible exception of the last matter the judge clearly took into account all the other factors. The only question for this Court is whether she gave sufficient weight to the problems which he will face in jail; the fact that the plan was called off; that only an imitation firearm was to be used; and, that they were not intending to use their position as police officers to commit the offence.

35. In the result, we consider that the sentence, although undoubtedly high, is not manifestly excessive or wrong in principle so as to enable this Court to interfere.

36. The application is consequently refused.