R. v. TSE KWOK YUEN

IN THE COURT OF APPEAL

1995, No. 488
(Criminal)

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J U D G M E N T

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P. Chan, J. (giving the judgment of the Court) :

1. The applicant was convicted after trial before a judge and jury of one count of conspiracy to rob. He was originally charged with two counts, the second count being taking conveyance of a vehicle without authority. He was acquitted of this second count. He now seeks to apply for leave to appeal against the conviction in respect of the first count.

2. The prosecution case was this. In the early hours of 6th July 1995, some officers of the Special Duty Unit kept surveillance in the Yau Tong Area. They saw a vehicle with Registration Number EF3092, which was later found to have been stolen from the owner, driving into Tung Yuen Street. Apparently it had circled round because it reappeared and then drove into that street again. There were two males subsequently seen walking out of that street and met up with another three persons whom the officers had seen a little earlier in the area. The five of them then went yet again into Tung Yuen Street. Four came out later and one of them was carrying a bag which was later found to contain weapons such as firearms, choppers and the like. The police officers made a move and went to arrest these people.

3. As regards the applicant, there were several officers on board a police vehicle keeping surveillance in a fish market nearby. They drove into Tung Yuen Street and saw the applicant running into Shung Tak Wai. They chased after him in the car and caught up with him. He tried to run up a slope but slipped. He then turned round to try and run pass the officers. He was then apprehended by the officers who had to use force to subdue him. He was found to be in possession of a key to a nearby car which was the one mentioned earlier. The officers said that upon arrest the applicant made a verbal admission which was written down on a piece of paper at the scene. It was later recorded in a statement but only some two days later because the applicant was taken to hospital where he remained for three days.

4. It was not disputed that the applicant had some injuries on the head and some abrasions and that was why he was later taken to hospital. The officers wanted to interview him but on the advice of the doctors and the nurses, they did not do so until 8th July. During the interview, a total of four statements were taken from him. The first one related to, at that time, the offence of attempting to rob, the second one to the allegation of possession of firearms and offensive weapons, the third one to resisting arrest and the last one taking conveyance of a vehicle without authority.

5. The applicant gave evidence. He said that he went there to meet a person called Michael Law who had borrowed some money from him and that he had been promised a repayment that evening. There was an arrangement to meet this person who never turned up. So he went to get a taxi to go home but while waiting he was hit and lost consciousness. He never made any verbal admission to the police and in the hospital while he was in that condition he was threatened and forced to give the four statements.

6. The jury convicted him by a majority of five to two. He raised a number of grounds of appeal in this application. He also raised further matters before us.

7. The first and seventh grounds can be dealt with together because they relate to the first statement. He said that he was beaten into a coma and was injured and had some broken ribs. There was however no medical evidence supporting this. It was two days later that he was forced to give the four statements. The learned trial judge in his summing up dealt in detail with the prosecution's evidence as to how the statements were taken. He also reminded the jury of the evidence of the applicant, about the alleged violence by the police at the time of the arrest, and the alleged threat at the time of the taking of the statements. He told the jury that the police might be justified in applying some force at the time of the arrest but would not be justified to do so after a suspect was under control. He referred to the absence of the record of the applicant's injuries when he was first brought to the station sergeant and that there was no reply to the question put to the applicant by the officer. The learned judge also reminded the jury that there was another person, an innocent bystander, Mr Ngai, who was subjected to some force by the police officers and that there was no justification. In other words, the learned judge had warned the jury to be cautious in dealing with the police evidence regarding the arrest and the taking of the statements. On pages 24 to 25 of his summing up, the trial judge directed the jury that if they believed that there was an assault on the applicant, they should ignore the statements and find the applicant not guilty, and if they thought that they were fabrications, they should also find him not guilty. In our view, the learned judge had dealt sufficiently with the evidence, particularly the applicant's evidence, in a very fair and proper way. The summing up cannot be faulted. It is up to the jury to attach whatever weight to the statements they liked.

8. In respect of the second ground of appeal, the applicant said that in respect of this statement there was one signature which was not his although there were others which he admitted were his. This part of the case was also fairly put before the jury by the trial judge. In any event, it appears that this statement related to the allegation of possession of firearms and weapons. It was a statement which was exculpatory. We do not think that there is any substance in this ground.

9. We now turn to his other grounds which can be dealt with together, that is, Grounds 3,4,5 and 8. He submitted that the Crown had no sufficient evidence against him; that the Crown witnesses and the police had fabricated a case against him; and that at the material time he was only there to get repayment from Michael Law. Before us, the applicant also challenged why the prosecution did not call witnesses to testify against him and why the police had released the informer Mr Ho.

10. In his summing up, the learned judge pointed out to the jury, and we think quite fairly and properly, that the prosecution case against the applicant consisted only of (1), his presence at the scene where there were very suspicious movements of the vehicle and of the persons involved; and (2) the applicant's possession of a key to a nearby stolen car; and (3) his cautioned statements. The learned trial judge had reminded the jury of the discrepancies in the records regarding where the key was found and the discrepancies between the prosecution witnesses. The applicant's case regarding his reason to be there had been sufficiently dealt with by the judge. By reason of the verdict, it is obvious that the jury did not accept his evidence. We are satisfied that the jury were entitled to convict the applicant relying on the evidence and the statements placed before them.

11. The other matter which was raised by the applicant was that he was convicted of the first count of conspiracy to rob but acquitted of the second count of taking conveyance without authority. He said that if the jury had believed him, he should have been acquitted of both counts and if he had not been believed, they should have convicted him of both.

12. It is true that the learned judge in the summing up did tell the jury twice that they might think that effectively the two counts stand or fall together. But he also asked them to consider the charges separately. Since the evidence against the applicant was mainly the cautioned statements, we should look at what was admitted in these cautioned statements. It appears that in respect of the first statement, P.14, the applicant said:

"It was not my idea actually it was Ah Kwong who told me to come to do it, he said that they would be responsible for tying up the watchman and I was only to help by keeping watch outside the warehouse and keep an eye on the goods vehicle. You can see that I have a vehicle key in the pocket of my upper garment which is the key which can unlock the goods vehicle, registration mark being EF3092, which was parked nearby."

And as mentioned earlier, the second and third cautioned statements were exculpatory.

13. With regards to P.17, the last statement, what he said was this:

"I can remember that at 8:30 p.m. on the 5th January I got to Tai Kok Tsui on foot. I can't remember clearly the street name. The vehicle key was tried on several vehicles and managed to unlock the vehicle EF3092. Therefore it was stolen for use. One called Ah Kwong was told to drive it."

14. Looking at these two statements, it is clear that if the jury had accepted them as true, there was indeed sufficient evidence of an agreement that he would take part in the robbery as a lookout and that was the basis for the jury to convict him on the first count. However, from a careful consideration of these statements, it can be said that there was no unequivocal admission by the applicant that it was he who had stolen the goods vehicle. It could be that the jury gave him the benefit of the doubt and acquitted him of the second count of taking conveyance of the vehicle. We are satisfied that the two verdicts were not inconsistent.

15. One last point raised by the applicant was that he had never met these other persons. This was a count of conspiracy to rob. It is sufficient to show that there was an agreement between the applicant and at least one person to take part in a robbery. It is not necessary for the applicant to know or meet the others apart from the person called Ah Kong with whom he had this agreement. The learned judge in his summing up had clearly and correctly directed the jury on this point. This last ground is also unsustainable.

16. In all the circumstances, we do not think that the conviction is either unsafe or unsatisfactory. The application for leave to appeal is refused.