HKSAR v. YIP WING FAT

CACC 85 /2019

[2020] HKCA 58

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 85 OF 2019

(ON APPEAL FROM HCCC NOS 395 OF 1993 AND 28 OF 1994)

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J U D G M E N T

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1.  The applicant faced a count of robbery, contrary to section 10 of the Theft Ordinance, Cap 210, which offence dated back to 15 February 1993. He had originally appeared for trial in 1994 with four accomplices, namely (in their order in the present indictment) Lee Wing Lee (D4), Wu Ngan Hang (D1), Li Shu Yan (D2) and Chan Kin Man (D3), in the High Court before Deputy Judge Cannon and a jury. However, on 11 July 1994, he absconded from the trial[1], which thereafter continued in his absence[2]. More than 23 years later, on 10 April 2018, the applicant voluntarily surrendered to the police[3], and was subsequently tried for the offence again. Following a trial before Deputy Judge Woodcock (“the judge”) and a jury, the applicant was, on 28 February 2019, convicted of the count on the indictment and, the following day, sentenced to 15 years’ imprisonment.

2.  By a Form XI Notice filed on 19 March 2019, the applicant sought leave to appeal against both conviction and sentence.  He is represented by Mr Ng on his application for leave to appeal against conviction only.  In respect of the application for leave to appeal against sentence, the applicant has this morning sought leave before me in person to abandon his application, which I have granted.  Accordingly, the appeal against sentence is formally dismissed.

The prosecution case

3.  The indictment averred that on 15 February 1993 the applicant, together with D4, D1, D2, D3 and other persons robbed a jewellery shop on the ground floor of the Metropole Building, at 416-438 King’s Road, North Point (“the jewellery shop”) of gold jewellery valued at more than $1.25 million. The prosecution case against the applicant was that, whilst he may not have been physically present at the scene or taken part in the actual robbery itself, he was the planner of the crime who had introduced two of the main players in the offence and the driver to each other, for which he was to receive a reward of $50,000 after the robbery had been carried out.

4.  The narrative of the actual robbery was largely agreed by way of a set of Admitted Facts, which stated, inter alia, that:

(a)  D1 and a male person nicknamed “Hoi Por”[4] entered the jewellery shop – the former armed with a pistol, and the latter with a hand-grenade; both were wearing stocking masks[5].  Two staff members were threatened, one of whom was pistol‑whipped resulting in a laceration to his head[6].

(b)  Whilst the robbery was being carried out in the jewellery shop, D2 acted as a lookout, armed with a pistol and a hand-grenade.

(c)  Meanwhile, D3 remained in the getaway car, which bore false number plates, in the vicinity of the jewellery shop, where he waited for D1, D2 and Hoi Por to return.  However, after the robbery, the three of them could not find the getaway car[7]. Accordingly, a private car and an LPG lorry (both with drivers inside) were forcefully hijacked by D1, D2 and Hoi Por who then attempted to flee, but in vain[8]. Following a violent confrontation between the three robbers and police officers who arrived at the scene, during which shots were fired and a hand-grenade detonated, the three robbers surrendered and were duly arrested[9].  D3 was also arrested nearby[10].

(d)  The stolen jewellery items consisted of some ten trays of gold ornaments.  Save for seven items of gold jewellery, which were lost, all of the other items were eventually recovered[11].

5.  Some five months after the robbery, on 16 July 1993, the applicant was arrested at his home.  Upon caution, he said[12]:

“Ah Sir, in respect of this robbery case, I was only a middleman responsible for introducing Tai Hau Chai[13] to Fei Chu [it was an Admitted Fact that Fei Chu was D4]. The two of them were the masterminds.”

The record of interview as a material piece of prosecution evidence

6.  In a record of interview[14] taken between 18:36 hours and 22:09 hours on the same day (16 July 1993), the applicant admitted that, having acted as a “middleman”, he would be rewarded after the robbery had been carried out[15].  He told the police[16]:

“One night in early February this year, 1993, [D4] came … to see me. He said he had no money to spend and wanted to commit robbery. He then asked me if there is anything I could do about that. On the following night, I paged Tai Hau Chai, asking him to come out to Kai Kai Dessert Shop where I introduced the two of them to each other. Later, they left Kai Kai Dessert Shop to carry on their talk. However, I did not know what they were talking. About 5 days later, Tai Hau Chai came alone to Kai Kai Dessert Shop to see me. He asked me to look for a man who knew cars well on his behalf. I then told him to page Wong Lin Fat. I also did not know what they had discussed about. Around 11 pm or so on February 13, [D4] and Tai Hau Chai came to Kai Kai Dessert Shop and told me that they would commit a robbery in North Point two days later and that they would give me $50,000 as reward after the robbery.”

(It is argued that the italicised parts above should be regarded as being exculpatory and the applicant’s statement therefore “mixed”).

7.  By her ruling[17], which is not impugned for present purposes, the judge allowed the prosecution to adduce the applicant’s record of interview, which Deputy Judge Cannon had previously ruled to be admissible at the original trial before her following a voir dire. 

8.  At the applicant’s subsequent trial, with which I am concerned, the prosecution called three employees of the jewellery shop and two police officers, but none of his accomplices, as prosecution witnesses.  It also adduced evidence that the applicant had absconded from trial for almost 24 years in support of its case.

The defence case

9.  The applicant testified himself but did not call any other witness on his behalf.  As had been his case in the voir dire, the applicant claimed that he did not make any of the admissions contained in his record of interview, but he was forced to append his signatures after being assaulted by the police.  By way of an Admitted Facts[18], two photographs of the applicant’s injuries[19] purportedly inflicted by the police were adduced into evidence.

10.  The applicant testified that he did not take part in the robbery, and decided to abscond from the trial in 1994 because he had lost faith in the legal system following the conclusion of his voir dire. In that regard, a letter written by himself dated 11 July 1994 explaining his motive for absconding, was admitted into evidence[20].  He asserted that the legal system did not improve until Hong Kong’s re-unification with China in 1997.  He also claimed that whilst in hiding for almost 24 years, he had been working in the New Territories.

Summing-up

11.  At the outset of her summing-up, the judge briefly summed up the facts of the case to the jury and told them that the prosecution was alleging that the applicant was a party to a joint enterprise to commit robbery.  In respect of such allegation, she said[21]:

“The prosecution case is that the defendant, the other four defendants named in the charge and other persons, committed the robbery together. There was a joint enterprise. The defendant was not present at the scene of the robbery or the shoot-out, but he was part of the robbery because he assisted in the commission of the offence.”

12.  In respect of how a joint enterprise could be proved, the judge addressed the jury in these terms[22]:

“The question you have to decide is whether the prosecution have proved that the defendant played a part in the plan with others, so as to achieve a common intention, and that being the commission of a robbery. The issue is whether the defendant was actively participating or actively involved in the planning of this robbery, which would make him part of a joint enterprise.” (Emphasis supplied)

13.  Concerning the role played by the applicant in the joint enterprise, the judge said[23]:

“You may wonder what the defendant’s role is, if he was not present. Joint responsibility or a joint enterprise will cover this. You need to know how a joint enterprise for a crime can be established. It is the prosecution’s case that the defendant committed this offence jointly, with other men. Where a criminal offence is committed by two or more people, each of them may play a different part. But if they are acting together as part of a joint plan or agreement to commit that offence, they are all guilty.

The words “plan” and “agreement” do not mean that there has to be any formality about it, or a written agreement. An agreement to commit an offence may arise on the spur of a moment. Nothing needs to be said at all. Sometimes it could be made with a nod or a wink or a look between two or more people or it can be inferred from the behaviour of parties. Or it may have been planned to the last minute detail in advance.

The essence of a joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim.”

14.  The judge then gave the jury three examples in order to illustrate the concept of joint enterprise or joint responsibility[24].

15.  The judge summed up the applicant’s evidence, which ran to some three pages of transcript[25]. She also summarised the points made in counsel’s speech in respect of the defence case.

16.  Although not the subject of any criticism before me, I should point out for the sake of completeness that the defence had failed in its application before the judge to exclude evidence of the applicant’s flight from his original trial[26] and, consequently, the judge directed the jury on how such evidence should be dealt with in the following terms[27]:

“Since it is not challenged that he did abscond, and you can accept it as a fact that he did, you must go on to consider why he absconded and ran away.

The mere fact that the defendant acted in this way is not, in itself, evidence of guilt. There are innocent, many innocent reasons why a person may do so and the defendant has given his reasons for not continuing to attend his trial in 1994.

If you think his explanation is, or may be true, then you should take no notice of the fact that he decided to abscond or run away.  It is only if you are sure that he did not abscond for an innocent reason, then his actions can be regarded as evidence which supports the prosecution’s case.”

Grounds of appeal against conviction

17.  By his Perfected Grounds of Appeal against Conviction, Mr Ng, on behalf of the applicant, has argued that, other than the accessorial liability which the applicant had admitted under caution, there was no direct evidence to support the prosecution case at trial that he had acted as part of a joint plan or agreement to commit the particular robbery charged (Ground 1).  To some extent linked with this argument, Mr Ng further argued that the judge had failed to direct the jury on the exculpatory parts of the applicant’s record of interview, which might have suggested that he was not a participant in the joint criminal enterprise (Ground 2).  Accordingly, he submitted that the conviction was thereby unsafe and unsatisfactory (Ground 3).

18.  In respect of Ground 1, Mr Ng relied in particular on the following passage of the decision of the Court of Final Appeal in HKSAR v Chan Kam Shing[28]:

“32. The common law’s approach has been to evolve the doctrine of joint criminal enterprise, also referred to as the doctrine of “common intention”, of “common purpose”, of “acting in concert” and of “common design”.

33.  The doctrine of joint criminal enterprise is distinct from the traditional rules on accessorial liability, although there are situations where those rules may overlap.  It is important to note – since consequences flow from this – that under the doctrine of joint criminal enterprise, liability is not derivative: it is not dependent on proving that one person (the principal) committed the main offence and that another (the accomplice) assisted or encouraged its commission.  Liability is independently based on each defendant’s participation in a joint criminal enterprise with the requisite mental state to constitute the offence relevant to the defendant in question.”

Respondent’s submissions in reply

19.  Ms Cheng, for the respondent, accepted that the judge did not direct the jury as to the applicant’s derivative liability as an accessory on the basis of aiding, abetting, counselling or procuring the robbery.  Even if his record of interview disclosed a possible basis for accessorial liability, that was not the basis of the prosecution case.  In respect of Ground 2, Ms Cheng submitted that the admissions contained in the record of interview were wholly inculpatory: it was not a mixed statement.

Consideration

20.  I was initially concerned whether Ground 1 required leave to appeal at all, given that the gravamen of the complaint is that the judge’s directions to the jury were misconceived and inappropriate since this was a case of accessorial liability and not joint enterprise. However, since the argument derives from the interpretation and inference of what the applicant said in his record of interview, it seems to me to be a question of mixed fact and law, for which leave is required.

21.  It is important to have in mind what the applicant actually did say in his record of interview.  As will be seen from the passage cited above[29], after the applicant had been approached by D4, who asked him if there was anything he could do about the fact that he had no money and wanted to commit a robbery, the applicant convened a meeting at which he introduced D4 to another man called Tai Hau Chai.  The applicant described himself as “a middleman”, while Tai Hau Chai and D4 were cast as “the masterminds”. 

22.  Five days later, Tai Hau Chai came to see the applicant by himself and asked if the applicant could look for a man who knew about cars.  The applicant thereupon put Tai Hau Chai in touch with another man, Wong Lin Fat.   

23.  At about 11 pm on 13 February 1993, D4 and Tai Hau Chai came to see the applicant again and told him that they would commit a robbery in North Point on 15 February 1993 and that, after the robbery, he would be given a reward of $50,000.

24.  The applicant was later contacted by D4, in the immediate aftermath of the robbery, and told that things had not gone according to plan.  D4 asked him what he should do about the situation, to which the applicant said that he should figure it out for himself.  About 10 days later, D4 called the applicant again, saying that he was in Shenzhen, and asking to borrow some money.  As a result, on the following day, the applicant went to Shenzhen, where he gave D4 $3,000 in cash.  In early April, pursuant to a further request from D4, the applicant obtained a forged Identity Card for D4.

25.  It should be observed that in cross-examination, the applicant admitted that he had known Wong Lin Fat, who owned a garage at Kam Shan Road in the New Territories in 1993, for about eight months prior to his arrest[30]. He would sometimes take vehicles for repair to Wong Lin Fat’s garage[31].

26.  Ms Cheng made the point, which the judge herself adverted to in sentencing the applicant, that he was the one to whom one of the so-called “masterminds” turned when the robbery went wrong on 15 February 1993.  That, along with his subsequent actions in relation to D4, suggested that the applicant was rather more than the “middleman” he claimed to be in his record of interview.

27.  It seems to me that the applicant’s admissions are the language of joint enterprise.  The applicant played an essential role in the planning and organising of what he knew would be a robbery, by putting two of the principals together so that it could be carried out, as well as sourcing a third person who knew about cars.  He also knew that the robbery in question would take place in North Point on 15 February 1993.  After the robbery, he lent one of the so-called “masterminds” some money and obtained a forged Identity Card for him.  The relevance of what happened after the robbery was capable of shedding light on his true role and intention at the time of the offence, as well as undermining any suggestion that he may have withdrawn from the plan which, after it had been carried out, was to earn him a reward of $50,000.

28.  The case alleged against the applicant was one of joint enterprise, the case on which the judge summed up was one of joint enterprise and the jury, having received proper directions on what constituted a joint enterprise, convicted him accordingly.  

29.  Mr Ng’s argument that this was not a case of joint enterprise rests on the premise that, after the applicant had put the parties together, he took no further part, had no further interest, and accordingly, had no knowledge that what he had put in place would lead to this particular robbery.  Therefore, so it is argued, the applicant was an aider and abetter, in the sense of counsellor and procurer at most, of some unknown robbery to be committed at some time in the future without his involvement or participation. 

30.  The problem with this argument is that the judge specifically directed the jury that the issue for them was “whether the defendant was actively participating or actively involved in the planning of this robbery, which would make him a part of a joint enterprise”[32].  She directed them to ask themselves the questions, “was the robbery, this robbery, committed with the defendant’s assistance”; and, could it be said that “he knew that his assistance was part of the planning for this robbery”[33].  She reminded the jury that it was the prosecution case that the applicant had admitted in his record of interview “that he assisted in the commission of this robbery”[34].  Her focus, therefore, was on whether the jury could be sure that the applicant was part of the robbery which took place in North Point on 15 February 1993. 

31.  When the applicant had put the major players together for the purposes of committing a robbery, which he knew was to take place in North Point on 15 February 1993, and on the completion of which he was to receive a reward of $50,000, it is difficult to avoid the conclusion as a matter of inevitable inference and common sense that he must have known exactly what was going on.  He was to benefit from the very crime he had played his part in putting together.  Moreover, after the completion of the crime, he did nothing to distance himself from his role as one of the organisers of that robbery.  As the judge herself found, when sentencing the applicant, he must have known what was being discussed between Tai Hau Chai and Wong Lin Fat[35], who, according to the Admitted Facts, had stolen the getaway car[36].  Furthermore, as she also found, the applicant must have known it would be an armed robbery[37].  These were matters of obvious and irresistible inference derived from the role he played and the meetings he held, however the applicant may have suggested otherwise in his record of interview.

32.  I do not think it is reasonably arguable that this was not a case of joint enterprise.  Even if there were some traction in the argument that it was also a case of aiding and abetting – and there is often a significant measure of overlap in the two concepts of joint enterprise and accessorial liability –, that was not the case averred and put by the prosecution.  The case from beginning to end was one of joint enterprise, and it was on that basis that the jury convicted.  Accordingly, I refuse leave to appeal on Ground 1.

33.  In respect of Ground 2, I agree with the submission of Ms Cheng.  The applicant’s record of interview was entirely inculpatory.  The references in it to his not knowing what the “masterminds” were talking about at one point, or what Tai Hau Chai and Wong Lin Fat had discussed after he effected their introduction to each other, was plainly an attempt to distance himself from the crime he had set in motion: such references did not excuse or explain his involvement in the robbery planned for 15 February 1993, for which he was to be rewarded after it had been carried out. I do not regard it as reasonably arguable that the judge should have said anything more than she did say about the applicant’s record of interview.  I would also refuse leave to appeal on Ground 2, and also the consequent catch-all Ground 3.

34.  As I have explained, it is no longer necessary for me to deal with the application for leave to appeal against sentence, which stands dismissed.

35.  The application for leave to appeal against conviction, having been refused, I advise the applicant that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that one of the consequences of so doing may be that the Court of Appeal could make an order for the loss of any time which the applicant has spent in custody pending his appeal, if the Court came to the view that there was no justification for the renewal of the application.

[1] Admitted Facts, para 14.3.

[2] The four accomplices either pleaded guilty to the count(s) they faced or were convicted after trial.

[3] Admitted Facts, para 14.5.

[4] Hoi Por was subsequently shot dead in the course of the confrontation described in para 4(c) infra: See also Admitted Facts, para 4.1.

[5] Admitted Facts, para 2.1.

[6] Admitted Facts, para 3.

[7] Admitted Facts, para 3.1.

[8] Admitted Facts, para 4.

[9] Admitted Facts, para 4.3.

[10] Admitted Facts, para 4.4.

[11] Admitted Facts, para 3.2.

[12] Appeal Bundle (“AB”), pp 46-47.

[13] According to the respondent, Tai Hau Chai remains a wanted person who was not present at the scene at the time of the robbery: see the respondent’s submissions, p 15.

[14] A further record of interview was taken from the applicant between 14:25 hours and 16:25 hours on 18 July 1993.  In that interview, he refused to answer any questions asked of him. 

[15] AB p 48.

[16] AB pp 48-49.

[17] HKSAR v Yip Wing Fat (Unrep., HCCC 395/1993 & 28/1994 (Consolidated), 28 February 2019).

[18] Admitted Facts, para 10.

[19] Exhibit D1(1) & (2).

[20] The letter was marked as a prosecution Exhibit P4: Admitted Facts, para 14.3.

[21] AB p 2Q-T.

[22] AB p 3R-U.

[23] AB pp 9Q-10H.

[24] AB p 10K-T.

[25] AB pp 11L-P; 12C-H; 24O-26R.

[26] HKSAR v Yip Wing Fat (Unrep., HCCC 395/1993 & 28/1994 (Consolidated), 28 February 2019), paras 3-4.

[27] AB pp 16T-17G.

[28] HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640.

[29] Para 6 supra.

[30] AB pp 91J-92N.

[31] AB p 92O-S.

[32] AB p 3S-U.

[33] AB p 11A-B.

[34] AB p 11C.

[35] AB p 35F-G.

[36] AB p VI para 2.3.

[37] AB p 38C.