R. v. CHAN KA KEUNG

IN THE COURT OF APPEAL

1994, No. 359
(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. This applicant Chan Ka-keung, after a very long trial involving 19 defendants on the charge sheet, was convicted by His Honour Judge Tyler in the District Court on 31 May 1994. He was the 18th defendant (D18). The applicant faced one charge: namely, conspiracy to steal money from buses belonging to the China Motor Bus Company Limited (CMB) between 1 October 1990 and 30 April 1991.

The conspiracy

2. The conspiracy as alleged by the Crown was relatively unsophisticated in nature. It consisted of a plot in which the first defendant (D1), a CMB driver and the third defendant (D3), a former CMB driver, were the leaders. They had a set of keys to the fare collection boxes of the CMB buses. Other bus drivers were involved in the plot in this way: (1) They received between $200-$400 on each occasion of theft from the collection boxes, the amount depending on how lucrative the particular bus route was. (2) The drivers participating in the conspiracy would give prior notice through pagers or portable telephones to D1 and D3 of their departure times from the bus terminus. (3) D1 and D3 would follow the bus in a hired car with D3 driving. D1 would, at some stage, board the bus and when the bus was empty of passengers - usually at the terminus - D1 would remove the vault from the coin box, steal part of the coins and return to the hired car with the loot. The stolen coins would be handed to the second defendant D2 (D1's wife), the fourth defendant D4 (D3's wife) and the sixth defendant D6 (D4's sister-in-law) for the purpose of laundering. D3 occasionally performed the same role as D1, boarding the bus and stealing the coins.

Key witness

3. The key witness for the prosecution was PW47 LO Yat-hang a CMB driver who gave information to the ICAC which led to the investigation and prosecution. PW47 was involved with the syndicate but was given immunity from prosecution.

Was applicant a conspirator?

4. At the trial it was proved to the satisfaction of the judge that the general conspiracy to steal involving D1, D3 and members of their families D2, D4 and D6 existed. The only remaining issue as far as this applicant D18 was concerned was whether he joined the conspiracy and participated in the furtherance of its criminal objective. The applicant did not give evidence at his trial.

5. In his reasons for verdict the judge directed himself as follows:

"If bus driver A enters into an arrangement with bus driver X alone to allow X to steal money from his coin box, where X enters into the arrangement with A as part of an overall conspiracy, A cannot without more be found guilty of the overall conspiracy. To be found guilty, A must be proved to have agreed to join the scheme of the overall conspiracy alleged, and even though he need not know who the others were, he must have known that there were others in the scheme."

6. It is Mr Mullick's argument in this court that upon the findings of fact made by the judge, he could not have been satisfied that the applicant's participation in the general conspiracy was proved.

19 April 1991

7. The case against the applicant's focus on the events of the 19 April 1991. PW47 Lo was with D1 and D3 that morning. They cruised around in a hired car and visited some bus termini. Some time after 12.00 noon, through contact by portable telephone, this applicant met up with them. As the judge found the applicant then spent about eight hours with them, most of that time in the car. In essence, D1 and D3 were on a money collecting tour. It was not clear from the judge's findings what role PW47 Lo and this applicant played apart from being present, if they played any at all.

8. The prosecution case focussed upon this event: As the four persons drove from Hong Kong Island to Kowloon this applicant recounted an occasion eight days before, on 11 April 1991, when he drove as a substitute driver on route 101. The applicant said that the driver for whom he had substituted called So Pan was then summoned two or three days later to CMB's office and questioned why the receipts of the bus on that day amounted to only $4,000 instead of the normal $8,000. The applicant then said that he had learned from other drivers that So Pan, for whom he had substituted as a driver, did not believe that he, the applicant, would participate in stealing because the two of them had been good friends for many years.

9. D1 then said to the applicant: "We have been in co-operation for so long. How come I would be so heavy handed." Much of counsel's argument in this court turned upon the fact that when D1 made that statement this applicant gave no reply. I will revert to this later.

10. The party of four then drove to So Uk estate. This was about 2.10pm. D1 boarded a route 112 bus, then boarded another bus driven by D7 which was behind the first. After this D1 boarded the car with a bag and they drove then to Wong Tai Sin. There D1 boarded a route 106 bus driven by D5. D1 then returned to the car and they drove to Lok Fu terminus. D1 then contacted D13 by portable phone and asked for his departure time from Pokfield Road terminus. D1 also contacted D17. Eventually they drove to a market place near Argyle Street where D1 got off carrying a bag. He returned about half an hour later and drove to a bus stop at Cheung Sha Wan Road; there D1 got off with the bag and boarded a route 102 bus. The car drove on to Mei Foo where D1 later joined them carrying the bag. The party then went to Nathan Road near where D3 lived. D3 left the car with a travelling bag. This apparently contained all the money which had been collected by D1 on that day, the coins having been poured from the bag into the travelling bag whilst they were in the car. Soon after that the party separated.

The conversation in the car

11. It is clear from that conversation that there was no admission by this applicant of having taken part in any theft on the day when he drove as a substitute for So Pan. The statement to the effect that So Pan had been summoned to the company's office to explain a shortfall in the collection box could not possibly have amounted to such an admission.

Inference from silence

12. The question for the judge then was this: What inference ought he properly to draw from the fact of this applicant's silence when D1 said to him "We have been in co-operation for so long. How come I would be so heavy-handed."

13. Mr Matthews for the Crown submits that in effect what this must have meant was as follows: that he, the applicant, must have known that he, D1, would not have stolen so much as $4,000 out of the $8,000 for which So Pan had been asked to explain; after all they (the applicant and D1) had been "in co-operation" for such a long time. Mr Matthews' submission is that the applicant having been so "confronted" his silence amounted in effect to an admission. Mr Matthews relies on the case of Parkes [1976] 64 Cr.App.R.25 where the facts were however somewhat more telling against the appellant. There the appellant, having been confronted by the victim's mother that he had stabbed her daughter, made no reply; and when she threatened to hold him until the police arrived he drew a blood-stained knife and tried to stab her. There the Privy Council held that his denial was capable of amounting to an admission of guilt.

The "confrontation test" failed

14. In the court below that issue was in fact canvassed, at the stage when counsel for this applicant made a submission of no case to answer. I quote from the judge's Reasons for Verdict:

"In the course of that submission Mr Matthews for the prosecution had submitted that D1's statement and the failure of D18 ... to react to it amounted to an admission ... as to their involvement in the alleged conspiracy. I ruled against Mr Matthews on that, on the basis that it failed the confrontation test."

Effect of remaining evidence

15. It was therefore upon the rest of the evidence that the judge ultimately convicted this applicant. The judge said this:

"Against the background of the findings I have made it is an irresistible inference that D18 was party to the conspiracy alleged. Why otherwise would he have been allowed to be present in the car on what I have found to be a stealing expedition. What otherwise would be the point of D18 talking about the So Pan incident."

16. In my judgment, if it be right that this applicant's failure to respond to or deny the "accusation" was neutral, then the rest of the evidence was simply incapable of founding the conviction. The circumstances were undoubtedly suspicious; but to be guilty of taking part in the conspiracy there must be something more than mere presence in the course of the stealing expedition. As to the judge's rhetorical question "What otherwise would be the point of D18 talking about the So Pan incident?" I observe that there D18 was simply recounting the reaction of the CMB Company's management to what they suspected to have been a shortfall. D18 never said there was in fact a shortfall. Whether factually there was a shortfall we do not know. Nor how So Pan dealt with that inquiry. In my judgment what remained of the evidence was not sufficient to found the conviction.

17. But the matter does not rest there because the judge in his Reasons of Verdict went on:

"I further find that if D18 was not aware of a scheme to steal money from buses involving D1, D3, Mr Lo and bus drivers before he boarded the car that day, then he became aware of such a scheme that day and by not dissociating himself from what was happening became party to the scheme."

Conclusion

18. In my judgment this conclusion fundamentally vitiated the conviction. If there was doubt in the judge's mind as to whether D18 had been a conspirator prior to 19 April then his mere presence in the car during the stealing operation by D1 and D3, coupled with what he said So Pan had related to him, plainly was insufficient to found the conviction. In my judgment this application succeeds and treating the application as the hearing of the appeal, I would allow this appeal and quash the conviction.

Power, V.-P.:

19. I agree that the appeal must be allowed. I wish to add only this. It was the view of the trial judge that the conversation on 19 April 1991 was not such as would support an inference of participation by the applicant in the conspiracy. He held that it, and I use his words, "failed the confrontation test". I am not sure exactly what he meant by that. This was not a confrontational situation. I am for my part left in considerable doubt as to whether I would have taken the view which the trial judge did take of that conversation. However that may be, having so held, he went on as my brother Litton has said, to rest his conclusion of guilt upon a matrix of facts which was simply insufficient to support it. In the circumstances the conviction cannot stand and the appeal must be allowed.

Mortimer, J.A.:

20. I agree with both judgments which have been delivered that this appeal must be allowed and the conviction quashed.