THE QUEEN v. CHAN KAM KEUNG AND OTHERS

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JUDGMENT

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McMullin, V.-P. :

1. Five men were tried before the High Court on an indictment containing four counts. One of those, CHAN Kam-keung, pleaded guilty at the outset of the trial to conspiracy to rob and to robbery - respectively the first and fourth counts in the indictment.

2. The trial proceeded on a fresh indictment with the defendants renumbered upon the remaining three counts. The first defendant, CHAN Kin-wah, was found guilty of conspiracy to rob, possession of arms and ammunition without a licence, and possession of an imitation firearm. He received sentences totalling ten years' imprisonment. The second defendant, LI Chau-yan, was similarly convicted and received sentences totalling seven years. The third, CHAN Wing-wah, similarly convicted, received sentences totalling ten years and the fourth, LO Chun-yam, was found guilty of conspiracy to rob, the first count, and received a sentence of 3½ years' imprisonment. They all now apply for leave to appeal against their convictions.

3. The case for the Crown on the conspiracy charge, count one, rested primarily upon the evidence of a police informer, TSUI Chi-ming. His story was to the following effect. On the 23rd of August 1984 he met the first defendant(D1) who suggested to him the carrying out of a robbery of a cash-van belonging to the Kowloon Motor Bus Company from a certain depot, known as the "old depot", in Yuen Long. TSUI was asked to supply two motor-cars for this venture.

4. On the following day, the 24th, TSUI was phoned by D1 and they met at the Tung Lok Theatre, Yuen Long. Another man, CHAN Kam-keung, originally the third defendant on the former indictment, was introduced as the first defendant's nephew. The three of them went to the Unicorn Restaurant where they met the present third defendant (D3) and a man called Tsang.

5. There was conversation in the course of which the D3 confirmed the fact that TSUI was to get the two cars and to be responsible for driving the van, once it had been appropriated. It was said that the D3 would supply what were referred to as the "gadgets", and the conversation made it clear that the reference was to guns for the purpose of the robbery.

6. They were subsequently joined by the fourth defendant (D4) and they all drove over the proposed getaway route from the area of the proposed robbery in a car which had been obtained by the fourth defendant and CHAN Kam-keung.

7. On this journey D3 pointed to a certain shelter near the bus depot, which was opposite to a police station, where, it was said, the van would be parked on the night when the robbery took place. D3 also pointed out the route which would include escape via some unopened stretches of road after the seizure of the van. He pointed out the place at Fuk Hei Street to which the others would drive in two getaway cars to meet the van and there transfer its load of cash to one of the two cars. D2 was not present at any of these deliberations.

8. D3 went on to describe how, on the 27th of August, he had met CHAN Kam-keung in a restaurant at 2:00 p.m. and this occasion CHAN Kam-keung told him that the job would be done on the following day. D3 and D4 then joined them and they went and fetched D1 and all together went off to Tsuen Wan where they hired a car and then drove to the "old depot" at Yuen Long. Having done that they drove once more over the proposed escaped route. D2 was still not with them at this stage.

9. TSUI's evidence was that on this occasion D3 warned him to note where the two cars which he was to produce were to be parked for the purpose of the robbery, and then CHAN Kam-keung, D4, and TSUI drove to Tsuen Wan to return the car that they had hired. On the way D4 suddenly announced that he was not feeling well and that he had decided that he would not take part in the venture. The rest then parted.

10. Throughout this time TSUI, as is common ground, had been keeping in touch with Chief Inspector YIP Suen of the Royal Hong Kong Police Force and certain other police officers informing them of what was going on. He got in touch with Inspector Yip on the night of the 27th of August and made some arrangements with him. On the following morning, the 28th, the police officers supplied him with two cars which were then parked in Hei Yip Carpark and in Fuk Hei Street respectively, both being places which had been visited by TSUI and the accused in covering the robbery escape route on the previous occasions.

11. Later on that morning TSUI met D1 and they went to the Lung Cheuk Restaurant and were joined later by D2 and D3. D2 thus entered the picture at this point for the first time and it appears that it was his purpose to replace D4 as driver of one of the cars.

12. Later these four called and collected Dl and D2 then drove them in one of the cars, which had been supplied by the police, along the getaway route to Shum Chun and Sheung Shui. There they stopped and D3 got out and fetched a leather case from a nearby re-site area, announcing that it had a pistol within it. TSUI said that he felt this case and felt a pistol-like object inside it. He said that D3 said that another pistol was hidden near the bus depot.

13. On the way to Yuen Long TSUI was told by D3 to put the pistol in the leather case in Toyota No. CC5157, one of the getaway cars, when they got to Yuen Long. D1, D3 and CHAN Kam-keung then were left at the Ka Lai Wah Restaurant while D2 drove TSUI to TSUI's home where they got some wire and some hooks which were for the purpose of opening the van after it had been seized. Some screw-drivers and a knife were also taken from the premises by D2 and put in a plastic bag. Then TSUI and D2 drove to Hi Yip Street Carpark where the Toyota car which was one of the getaway cars was parked, and the plastic bag and its contents were placed on the front seat. It should be said that the leather bag containing the pistol had already been put in the glove compartment earlier on the way to TSUI's house.

14. TSUI and D2 then joined D1 and D3 and CHAN Kam-keung at the Ka Lai Wah Restaurant and they were all given what, on TSUI's account, amounts to a final briefing by D3 concerning their various parts in the affair. According to this, TSUI was to be the driver of the van when it had been opened and appropriated; D3 and CHAN Kam-keung were to control the guards by the use of knives; and Dl, also using a knife, was to be the look-out; D2 was to drive car CC5157 after TSUI had driven off in the van. They were then to meet later and the cash was to be shifted from the van to the car.

15. After this briefing they all had a meal at the restaurant and then D3 and CHAN Kam-keung left to fetch another pistol. Later TSUI, D1 and D2 met them by arrangement at a certain flyover and went with them to the Hei Yip Street Carpark where all of them got into car CC5157. The time would have been about 10:45 p.m.

16. D3 was holding a Kraft paper envelope containing one of the guns on his lap and the other gun in its bag was being held by D2. Dl, D2 and D3 sat in the rear of the car. TSUI got into the driver's seat, switched on the engine on and revved it up. This was a pre-arranged signal to alert the police party which was waiting in the vicinity. The police then emerged from their hiding place, rushed to the car and arrested all the persons within it, finding the leather bag with a gun and the Kraft envelope with the other pistol in the possession of D2 and D3.

17. These guns were subsequently examined by a police expert and one of them was found to be replica of a Smith & Wesson .44 Magnum which had been sleeved and adapted to fire live rounds. It was loaded with some Chinese-made bullets which had been packed around with paper to make them fit the chambers. It could be fired, and it was potentially lethal at about 100 feet.

18. The other gun was a life-like but unmodified replica of a Colt Lawman Mark III .357 Magnum.

19. These two pistols and the ammunition contained in one of them constituted the substance of the second and third charges.

20. The judge, in a long and careful summing-up, pointed out that the character of the principal witness TSUI was very questionable. He was a paid police informer, apparently a professional police informer, who had on occasions been paid large sums of money for such information. He had a long criminal record and the jury were warned that he was in every respect a man whose evidence must be scrutinized with extreme caution. The judge directed them that they should not convict upon that evidence on the first count unless they were satisfied that he was a credible witness, and, further, that if so satisfied they must look for corroboration of his evidence. He pointed to the statements made by the first three defendants after arrest as constituting the only source of such corroboration.

21. Those statements do in fact contain admissions by the first, second and third defendants to participation in this conspiracy to rob.

22. The judge also was obliged to point to the character of the other principal prosecution witness, NG Yan-hoi, who gave evidence about a robbery on the 17th of December - which may conveniently be referred to as the Tai Fook Goldsmith robbery - upon which count only D3 and D4 had been charged and in respect of which they had been acquitted by the verdict of the jury.

23. The character of that witness was dwelt on at considerable length by the judge and it may be said that, if anything, be emerged as a blacker villain than did the other witness TSUI. He was indeed referred to in the address of one counsel as a "poisonous snake" and it may well be that the jury thought that that was not an exaggerated description of his quality. It is unnecessary to go into the details of his past character and history. Evidently he was regarded as a wholly unreliable witness by the jury.

24. This fourth count, and the acquittal of D3 and D4 thereon, however, gives Mr. Lunn, who appears for the first, second and third defendants, his first point on the appeal. He says that the verdicts of guilty on the first, second and third counts are inconsistent with the jury's verdict of not guilty on the fourth count in that implicit in that verdict is a rejection of the evidence concerning a statement made by D3, CHAN Wing-wah, to a detective constable following on his arrest. This statement includes references to the events, the subject of the first, second and third counts of the indictment and constitutes in D3's regard the corroborative evidence referred to by the judge.

25. The matter fell out in this way. One police officer took statements from both D3 and D4 on the same day. D4 made no admission in respect of the conspiracy (count 1), but he made a full confession to the robbery charged in the fourth count, the Tai Fook Jewellery robbery.

26. D3 was cautioned in respect of yet a fourth robbery - one which is irrelevant to the purposes of the present case. He denied that offence but went on to admit having taken part in the count 1 conspiracy to rob. He then went further and admitted to taking part in a robbery, described by him in circumstantial detail which made it clear that he was in fact admitting to participation in the Tai Fook Jewellery robbery (count 4).

27. To put it at its best, this does not really raise a point of inconsistent verdicts at all. On the face of it there may be some degree of inconsistency in the jury accepting one part of one defendant's statement as being properly obtained from that defendant by the police officer while rejecting the other part. Counsel argues that the jury must necessarily have thought that improper means had been used to obtain part of the statement and thus that the confession to conspiracy was similarly tainted.

28. We, however, are not, as an appellate court, obliged, or indeed entitled, to delve into the minds of the jury in respect of the deliberations that led them to this result. But in any event, it is explicable in ways that are perfectly coherent. The jury had been told that the statements of the first, second and third defendants on their own were sufficient, if accepted, to support convictions on count 1, the conspiracy to rob. They were not so directed in respect of count 4 and the third and fourth defendants. The jury had also been told that before using the evidence of the statements as corroboration of the accomplices, they must first find those witnesses to be credible. Clearly they did not find the witness NG to be credible and were presumably not inclined to rely on the purported confessions to the Tai Fook robbery as primarly proof of guilt, not having been told by the judge that they were entitled to do so on those confessions. We find, therefore, no substance in that point.

29. The only other point relates to the evidence of TSUI himself. Mr. Lunn fairly concedes that the judge very adequately dealt with TSUI as a witness and carefully warned the jury against him in the light of his previous character. He says, however, that there are two matters of such importance that they call into question the whole nature of TSUI's evidence and give some support to the contention put forward on behalf of the defendants, none of whom gave evidence, which was to the effect that TSUI, as a professional police informer, had in fact concocted the whole affair and, as it were, invented a fictitious robbery which was not going to take place and had in some manner contrived to inveigle four innocent persons to take part in an event which was, on this interpretation of his evidence, a non-event.

30. In this regard, counsel points to the fact that, whereas Inspector YIP Suen, with whom TSUI had been in constant correspondence throughout this affair, had said that he had been told on the morning of the 27th that the robbery was to take place on the 28th, TSUI's own evidence was to the effect that he was not informed of that fact until he met the others at the restaurant on the 27th at 2:00 p.m., so that the Inspector could not have known already of the date of the robbery. This matter was not specifically put by the judge to the jury.

31. Another point which is made is that TSUI's evidence was to the effect that he had expected that 50 boxes of cash would be found in the van at the "old depot" for transfer to the getaway cars. There was evidence given by certain Kowloon Motor Bus Company employees that, first of all, the depot in question had not been used for some time; secondly, that, if used at all, the collection would have taken place at a time before the agreed time of the carrying out of the robbery; and, thirdly, that at the most, four or five cash boxes only were ever collected from that depot. This is relied upon in support of the suggestion that the purported attack upon the cash van was a pure invention on the part of TSUI for the purpose of being paid money and getting victims for the police.

32. As Mr. Lunn has conceded, the question of the cash boxes, their number and amount; and the discontinued uses of the depot, and the time of collection were fairly put to the jury. We are left therefore really only with the fact that, on TSUI's evidence, he could not have told Inspector Yip of the date of the robbery on the morning of the 27th. We cannot however regard that single item of evidence as supplying the kind of loose thread which, if tugged, would necessarily unravel the whole web of the prosecution case, and, on the directions as a whole, we cannot say that the jury were misguided or misinformed to a degree which would make their verdicts against D1, D2 and D3 on the conspiracy count unsafe or unsatisfactory.

33. Mr. Westbrook for D4 relies principally upon the grounds put forward by that defendant himself, but he repeats the points made by Mr. Lunn for the other defendants in relation to the allegation that TSUI had invented this plot. In addition to that ground he advances the suggestion, made by the defendant himself in his grounds, that TSUI must not have been telling the truth when he referred to the hiring of a car at a certain car rental company in a certain street for the purpose of covering the getaway route. TSUI, he says, cannot have been telling the truth about that because, in the contention of the defendant, no such rental car company existed in that street, a factor which was not, it is said, sufficiently covered by the Crown's evidence. There was however no cross-examination of TSUI on this aspect of his evidence.

34. We cannot find in the rest of the grounds of D4, put together with the points made both by Mr. Westbrook and by Mr. Lunn in relation to the character of TSUI, and the alleged inconsistency of verdicts anything affording sufficient grounds to disturb these convictions. We therefore refuse the applications for leave to appeal against conviction in respect of all four defendants.

35. There remains the question of sentence. On this we have been addressed by D1, D2 and D3 in person and by Mr. Westbrook on behalf of his client, D4.

36. D1 received sentences totalling ten years for the three offences. D2 sentences totalling seven years, and D3 sentences totalling ten years. Save with regard to a technical alteration which we must make in respect of the sentence on D3, we think the circumstances disclosed upon the record are of a gravity which would well have justified heavier sentences, in total, upon those three offenders. We find no substance in what has been put before us by any of the defendants and the applications for leave to appeal against sentence, save with regard to what must now be said in respect of D3, are refused.

37. In his case a sentence of three years was imposed for his possession of the imitation firearm. Under Section 20 of the Arms & Ammunition Ordinance sub-section (1), any peson found in possession of an imitation firearm is liable upon conviction to imprisonment for two years, but that sentence may be increased if, in accordance with the provisions of the immediately following sub-section, it is shown that within ten years of being convicted of an offence specified in the schedule he commits an offence under sub-section (1). The third defendant has a previous conviction but it was not for one of the scheduled offences. The judge in imposing a sentence of three years was therefore exceeding his jurisdiction.

38. The application of this defendant therefore is allowed to the extent that for the sentence of three years on the third count, we substitute a sentence of two years only. We must make it plain to the defendant that that does not, however, alter the totality of his sentence.

39. There remains the case of the fourth defendant. Mr. Westbrook has strongly represented to us that his case stands on a quite different footing from that of the other defendants. Inasmuch as he, although a conspirator with them in the earlier stages of the plot, withdrew from it and took no part with the others in furthering it thereafter.

40. Two points stand in his favour here. Firstly, as counsel points out, the evidence does not disclose that he was present at any stage when the acquiring of the guns was discussed, nor does it appear upon the record that he was present when the others armed themselves with knives.

41. The extent of his immersion in the plot, although substantial, was considerably less than theirs. It amounts to his having agreed to drive, twice, over the proposed escape route with the others and, on one occasion, to have helped CHAN Kam-keung to rent a car for this purpose. He did not, on the evidence, take active part in any of the discussions. He was to be the getaway driver.

42. Apart from this there is the fact that the second defendant received, for this offence, a term of four years. In other words, between him and the man who positively withdrew a distinction has been made to the extent only of six months' difference in sentence.

43. We think these two factors are sufficient to merit the interference of this court. We allow his appeal therefor, we grant his application and treating it as the hearing of his appeal, we set aside the sentence of 3 ½ years on the conspiracy and we substitute for that sentence of 2½ years only.