THE QUEEN v. LAU CHI KIN

IN THE COURT OF APPEAL

1987, No. 297
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. Lau Chi Kin was convicted after trial in the High Court before Barnes J. and a jury of the offence of robbery. He was sentenced to a period of 18 months' imprisonment. Conviction was entered and sentence passed on 13th February 1987.

2. On 12th March, he filed Notice of Application for leave to appeal against the conviction. On 28th April, he filed Notice of Abandonment in respect of that application. The appeal was then marked dismissed.

3. It would appear that he had been advised by a barrack room lawyer that he had no prospect of success. The Notice of Abandonment was filed a short few days before a Certificate was issued granting him Legal Aid. It was then suggested to him that he might care to petition His Excellency the Governor and this he did on 25th June.

4. On 30th June, His Excellency, under the provisions of section 83P(1)(a) of the Criminal Procedure Ordinance referred the matter to this Court for it to consider:

"The case as an appeal to the Court of Appeal by Lau Chi Kin including whether the learned trial judge correctly directed the jury as to the criminal liability of the petitioner as an aider and a better of the robbery with which he was charged and thereafter to decide whether or not the conviction of the said Lau Chi Kin should stand or be varied in any, and if so, what manner.

5. When the matter came on for hearing before us, Lau Chi Kin had already served his sentence.

6. The Indictment upon which Lau Chi Kin stood his trial contained two counts. The first : the robbery, the particulars of which were:

“Lau Chi-kin, on the 12th day of August, 1986 at the Dickson Watch and Jewellery Company Limited, The Landmark Centre, Des Voeux Road, Central, Hong Kong, together with HUI Yick-fai, FUNG Hoi-kit and an unknown person robbed NG Mei-yee and LUK Man-lok of eighteen ‘Rolex’ watches valued at $709,482 Hong Kong currency and a ‘Chopard’ watch valued at $39,250 Hong Kong currency.”

7. The second count alleged the possession of a firearm and ammunition without a licence and involved a co-accused, Ip Tung Wing. Both Ip and Lau Chi Kin were found not guilty.

8. There were filed on 5th August 1987 grounds of appeal on the Appellant's behalf. These related specifically to the matter of aiding and abetting and also concerned other matters arising in the trial and we shall come back to them in a moment.

9. It was not contested at trial that a robbery had taken place at the Dickson Watch and Jewellery Company on 12th August 1986. Indeed, a defence witness called by the Appellant gave evidence of it. The only issue was whether it had been proved beyond a reasonable doubt that the Appellant was, and in what way, a participant in the commission of the offence.

10. It was not suggested that he was a party present. There was tenuous identification evidence but the judge directed the jury that they should completely disregard it. The only matter which implicated the Appellant was the holding by him of a travel document of one of the robbers, Hui. It was the case for the prosecution that Hui thought that, to assist in getting away after the completion of the Landmark robbery, it was necessary for him to be able to gain access to his travel documents without the necessity of his returning to his residence. He wanted to be able, should it become imperative, to leave Hong Kong. He wanted a reliable contact. This was the Appellant and it was the Crown’s case that the actions of the Appellant were intentional encouragement of Hui in his commission of the robbery.

11. The Appellant was arrested on the evening of 12th August after the robbery had taken place and when he returned to his flat where some of the stolen property was recovered. At 2:15 a.m. on 13th August, the Appellant made a cautioned statement. He was told that he had been arrested in connection with the case of the armed robbery at the Dickson Watch and Jewellery Company to which he replied he had absolutely nothing to do with the case and it was because of that he tried to go away at the time of his arrest.

12. He was then asked a series of questions. Because he had mentioned that “this case” was probably done by Fung, Hui, a person called “Ah Chi” and another, he was asked how he knew this. He repeated that he did not know about “this case” but said he only knew that they would go to Hong Kong Island to commit a robbery.

13. He then described in detail how that knowledge came to him. On the Friday before the robbery, Fung, Ah Chi and another came to his home and they went in to have a talk with Hui. The three who arrived had been carrying a traveling bag. A few minutes later, the four left the Appellant’s flat carrying another, green, traveling bag. At about 11:00 a.m. the four returned. Having gone into one of the other rooms there, they then returned an had a chat in the sitting room. The Appellant heard the man Hui say that Hong Kong Island roads were very congested and they had come back without “achieving success in anything”. Three of the men then left leaving Hui remaining. After midnight on the Monday, Hui received a telephone call and, upon receipt of this, he telephoned Ah Chi and told Ah Chi to “start” a  car the following morning saying “Let’s go do it again tomorrow morning”. Hui returned to his sleep.

14. The Appellant woke up at about mid-day on 12^th August, a Tuesday. Some of the men had left but Hui while the Appellant was, as he described himself, “still sleeping”, tossed two Hong Kong Re-entry permits and two China entry permits onto his bed. Hui said in so doing “I go snatching today, bring them out for me.” To which the Appellant said “Alright” and then fell asleep again. When he left the flat he brought with him those documents. He did not see Hui again until upon his return to the flat late on the 12^th, he found the police there and Hui under arrest.

15. In answer to another question, he said that after he rose on 12 August, he went to a private gambling den where he watched people gambling until about 7:00 p.m.. Then he went to have a meal and that being finished be returned to his flat.

16. In another statement made 9:20 p.m. on 13th August when asked “Whey Ah Fai (Hui) wanted you to bring out his and Ah Wing’s Re-entry permits and China entry permits?” The Appellant answered:

"Because at that time I heard Ah Fai say he went snatching that day and he asked me to bring his re-entry permit and China entry permit out. The reason is that in case anything, the matter happened, then he could ‘fut’ which we are told means paged and ask me to bring them their documents for them to go back to their native place or go to Macau to lie low."

He said that he brought out the documents for Hui because he thought that it did not matter much and after all they were friends. In the gambling den, he had placed the documents in a woman’s bag and retrieved them from there before he left.

17. The Appellant had received a telephone call at three o'clock in the course of the afternoon and confirmed that he did have the documents with him. He was told to bring the documents back to the flat later that evening which is what he in fact did.

18. The Appellant gave evidence. Its main purport was an attempt to water down the effect of the contents of the cautioned statement and to attack that statement as first, not being properly recorded and secondly, that the words attributed to him were not used by him.

19. Hui, who gave evidence for the prosecution, said that he had put his own travel documents, but not those of a person Ah Wing or Ip – the co-accused on the second count -, into a paper bag and sealed it which bag he then put in a drawer below the Appellant’s bed. He went on that he woke the Appellant and told him that if the Appellant had occasion to go out he was to take the bag from the drawer with him and that he would page the Appellant later in the day. He said that he did not tell the Appellant what was in the bag nor did he tell him why he wanted him to take the bag out with him. He admitted he did commit the robbery and said that he had telephoned the Appellant afterwards asking him if he had the bag. He denied telling the Appellant that he was going to rob.

20. It is contended that a passage in the summing up at page 4 K-R together with two subsidiary passages, one at page 5 I-K and the other at page 7 O-Q were wrong in law. At page 4, the judge said this:

"For the purpose of this case it is sufficient to say that if you are satisfied beyond all reasonable doubt that D2 intentionally encouraged Hui Yick Fai to commit the robbery, then he is guilty of that offence even though he was not at the scene. 'Encouraged' in this context does not necessarily mean that there must be some act on the part of D2 amounting to an instigating, urging or cajoling of Hui Yick Fai to commit the robbery as Mr. Kenny seemed to be suggesting yesterday. If you find that D2 played a role which Hui Yick Fai regarded as important for the successful outcome of the Landmark robbery and that D2 acted is he did for the purpose of helping to ensure that successful outcome, then he is by law guilty of the same offence as Hui."

At page 5, the judge said:

"With the aid of a reliable contact holding those documents and able to make them available to him at short notice without any need to return to his residence he could leave Hong Kong and avoid detection."

At page 7, he said:

"If the evidence you accept makes you feel sure that D2 did encourage Hui to commit the offence in the manner contended by the prosecution then your true verdict is Guilty. If it falls short of doing that then it is not Guilty."

21. The emphasis placed by Mr. Kenny, who appeared for the Appellant both here and below, is on the use by the trial judge of the word "encourage" and on the defintion of it which he gave in the first passage cited above. He submits that encouragement here was not sufficient to constitute the Appellant an accessory before the fact because it must go further; that is to urge, instigate or cajole Hui to commit the robbery. It is his contention that what must be established is a positive act by the Appellant which assisted in the commission of the offence. He accepts, for the purposes of his submission, that here, possibly, the carrying of the documents with knowledge could be considered a positive act but adds that it is not one which can fall within the definition of aiding, abetting, counselling or procuring the robbery. It might have gone to an assisting in an escape from Hong Kong but that would not be enough to constitute the offence as charged.

22. His ground 1(i) of the Grounds of Appeal makes reference to the mere carrying by the Appellant of the documents. As to this, we do not accept that the evidence here disclosed a “mere carrying.” It was a matter for the jury what evidence they believed and they would have been entitled to find that this was a carrying with knowledge of an intented robbery and of the reasons why the Appellant was asked to carry the documents.

23. We do not think that the directions on this point by the trial judge, given as they were in the light of the evidence before him, are open to the construction contended for.

24. The issue here is the application of "aid, abet, counsel and procure" to the facts and to the charge upon which the Appellant stood trial.

25. It can be no general defence that the offence would have he en committed whether or not the accused played a part in it. To "procure" an offence implies a causal link between the act of the person concerned and the commission of the offence. That cannot apply here. It is not, and to all these words should be given their ordinary meaning, suggested that the Appellant "counselled" the commission of the offence. In order to "aid" it is necessary for the Appellant to have been present during the commission of the crime.

26. It is not necessary for an aider to be an ear or eye witness to the commission of the crime provided that he is present in the sense of being near enough and having the intention to assist, and to be capable of affording that assistance, should the occasion arise at the time the crime is committed. This cannot apply to the Appellant here.

27. The issue, even with the modern tendency to blur the distinction as between the four stages, as I see it is: did the Appellant here in the circumstances as disclosed by the evidence abet Hui in his committing the robbery.

28. Thambiah v. R.[1] shows the blurring of the distinction of the phrase "aid and abet" where it is used in the wider sense so as to include those who are usually referred to as counsellors or procurers.

29. In Thambiah¹, the appellant was convicted of abetting another person in fraudulently using as genuine a cheque which had been forged by the alteration of the payee's name. The Judicial Committee was concerned only with a conviction in respect of a cheque issued to a bank which was the second count on the indictment. The cheque had been stolen sometime before it was uttered. The name of the original payee was erased and the name of the 1st accused at trial, whom the appellant was accused of aiding and abetting, was substituted on it. The 1st accused presented the forged cheque for payment into an account which the appellant had recently opened under an assumed name and the case against the appellant rested only on the facts concerning the opening and maintenance of that bank account and the inferences to be drawn from those facts. The appellant had therefore taken, as Lord Pearce at page 45 described them, "these serious fraudulent steps to open an, account …. under a false name and description".

30. At page 46, Lord Pearce went on:

"The fact that the cheque did not as yet exist, when the account was openedm, does not preclude the appellant's actions in opening and maintaining it from constituting an abetting of the fraudulent presentation of the cheque when it had come into existence and been altered by forgery. One man may abet another by helping to set the stage even before the victim has been found. If a man helps another in preparation for crimes of a certain nature with the intention that the other shall commit crimes of that nature he may abet those crimes when they come to be committed."

31. The evidence here does not encompass such a situation.

32. Undoubtedly, Hui's mind would have been eased by the knowledge that he has easy access to his travel documents. In this sense, he would have gone on to commit the robbery with greater enthusiasm. But there is nothing to suggest that the crime would not have been committed but for the Appellant's holding of the travel documents. His holding of them would not ensure the successful outcome of the robbery itself though it might well have assisted a successful disposition of the proceeds and the escape of the active participant, Hui. This last might have let to a separate criminal charge against the Appellant but not to the charge that he actually faced.

33. The judge here was placed in difficulty because of the way the count was framed. In D.P.P. for Northern Ireland v. Maxwell[2], where Maxwell was charged as a principal, as was the Appellant here, and the prosecution relied upon aiding and abetting, the view was expressed that the particulars should have been drawn in such a way as to disclose with greater clarity the real nature of the case which Maxwell had to answer.

34. There, the appellant was a member of an illegal organisation in Northern Ireland which had been responsible for sectarian murders and bombings. He had acted as a guide to a car carrying explosive to a remote country area for the purpose of a bombing. The appellant knew that he was engaged in a terrorist attack but did not know what form that would take. He performed his guide duties and went away. The car he had guided there disgorged its occupants who threw a bomb into a house. The appellant was charged with doing an act with intent to cause an explosion by a bomb and with possession of a bomb. He was convicted on both offences as a principal in the second degree.

35. The particulars of the counts gave no indication that the case the prosecution intended to present constituted aiding and abetting. The prosecution did not attempt to prove either the doing of an act with intent or the possession of the bomb. Viscount Dilhorne said at page 1142 :

"It is desirable that the particulars of the offence should bear some relation to the realities and where, as here, it is clear that the appellant was alleged to have aided and abetted the placing of the bomb and its possession or control, it would in my opinion have been better if the particulars of offence had made that clear."

36. At page 1146, Lord Hailsham of St. Marylebone; supported that which Viscount Dilhorne had said as did Lord Edmund-Davies at page 1148 and Lord Eraser of Tullybelton at 1149.

37. Here, the real nature of the case was not a participation in the actual robbery but some form of "encouragement", to use the judge's word, which involved the Appellant in the commission of the offence. It was essential for the prosecution to prove that the act of the Appellant was to ensure the commission of the robbery.

38. Mr. Bruce draws a valid distinction as between the knowledge of the actual crime which was committed and the generality of a criminal enterprise.

39. In R v. Bainbridge[3], Lord Parker, C.J. delivering the judgment of the Court, approved the direction by the trial judge in a case where the appellant had bought cutting equipment on behalf of one or more of the thieves with full knowledge that it was going to be used for the purpose of breaking and entering premises. It had been argued that the appellant was required to know the actual crime which was going to be committed. In his direction the judge had told the jury that the prosecution had to prove first: that the felony was committed; second: that the appellant knew that a felony of that kind was intended and was going to be committed; and thirdly: with that knowledge he did something to help the felons commit the crime. He directed them that the appellant did not have to know the precise crime, that is that the breaking and entering was going to take place at a particular premises at a particular time. The direction emphasized that the person accused must know or suspect that the sort of crime which was intended was going to be committed, not merely some form of crime. The direction had gone on to tell the jury that if the appellant was not present he would not be guilty as a principal but they would have to decide whether he helped by, in that particular case, the purchasing of equipment, knowing full well of the type of offence for which it was going to be used and that he bought the equipment with that knowledge.

40. Lord Parker said at page 202:

"The court fully appreciates that it is not enough that it should he shown that a person knew that some illegal venture was intended. To take this case, it would not be enough if the appellant knew - he says that he only suspected that the equipment was going to he used to dispose of stolen property. That would not be enough. Equally, this court is quite satisfied that it is unnecessary that knowledge of the intention to commit the particular crime which was in fact committed should be shown, and by 'particular crime' I am using the words in the same way as that in which counsel for the appellant used them, namely on a particular premises."

41. While accepting that it was difficult to lay down a precise form of words which will cover every case, Lord Parker felt that the trial judge's direction could not be criticised.

42. The Appellant here is not in a position analogous to that of the appellant in Bainbridge³.

43. The criticisms in Maxwell² can be levelled against the form of indictment here for if the drafter had sat down to attempt to particularise what was in fact the Crown's case it might well have become apparent to him that the Appellant had not in fact, in the circumstances here, performed an act which of itself assisted in the commission of the robbery. I do not consider that here, even proven to the hilt, the attachment of the Appellant to that which took place to be sufficient to permit the direction which the trial judge gave. Ground 1(iii), which is that the intentional carrying by the Appellant of the travel documents was not capable in law or in fact of constituting an act of assistance or an appreciable contribution to the successful outcome of the robbery, to my mind succeeds.

44. I would allow the appeal and quash the conviction.

Kempster, J.A.:

45. I also would allow the appeal and quash the conviction on the grounds explained by Silke, V.-P..

Addison, J.

46. I too would allow the appeal and quash the conviction.