THE QUEEN v. WONG HON FAI AND OTHERS

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JUDGMENT

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Jones, J.

1. The three applicants seek leave to appeal against their convictions of one count of attempted robbery on the 24th January 1990 when they were all sentenced to six years' imprisonment.

2. The applicants were charged with the attempted robbery of 7,000 watch modules at an address in Shun Ning Street, Mongkok on the 25th April 1990. The evidence reveals that Mr Ng Chi-kit, the manager of Wai Ming Hardware Manufactory Limited in Castle Peak Road, Tsuen Wan, received an order on the afternoon of the 25th April 1990 for 7,000 pieces of watch movements at $28.80 per piece to be delivered at the address stated in the indictment at 6:30 p.m. that evening with cash to be paid on delivery. At the time the order was made, which was by telephone, he also took down details of the customer's name, the company, the address and the telephone number. A sales voucher for $201,600 was made out by Mr Ng and it was in fact dated, mistakenly, the 26th April 1990. The goods were packed in seven cartons and loaded onto his delivery van. It was an agreed fact that the goods were to be delivered that evening on the 25th April so no issue arises with regard to the mistaken date.

3. Mr Ng was suspicious of the telephone call, so he informed the police at Mongkok Police Station where investigations were made to the effect that the telephone number was that of a coffee shop whilst the address given was different. Mr Ng handed over to the police the voucher, the goods and the delivery van as the police had decided to deliver the consignment with two police officers disguised as delivery workers. The police officers were a Chief Inspector and a Detective Police Constable.

4. They went to the address that evening where the 2nd applicant opened the door and the seven cartons were placed upon the floor of the premises. A delivery voucher was handed to the 2nd applicant who was asked for payment, but at this point, the 1st and 3rd applicants rushed into the room, one of whom, the 1st applicant, was holding a beef knife. When the 1st applicant was about 10' away from him, the Chief Inspector took out his revolver and shouted "Police". However, the 1st applicant did not stop so the Chief Inspector opened fire once and his evidence was to the effect that he believed the 1st applicant dropped the knife that he was holding and fell forward. He also had the impression that the 2nd applicant was holding a knife so he fired at him and hit him in the chest and he fell to the ground. Meanwhile the Detective Police Constable caught hold of the 3rd applicant and handcuffed him.

5. The flat in question was let on the 21st April to a Mr Cheng Kam-hon who produced an identity card and paid an initial deposit of $12,900 for three months' rent, in advance with the tenancy to commence as from the 28th April and the four keys of the flat were handed to him. On the 26th April 1990, a police officer went to the 2nd applicant's address in Fa Yuen Street and there seized, amongst other exhibits, an identity card in the name of Cheng Kam-hon. Cheng Kam-tong who was PW10 gave evidence that he is the elder brother of Cheng Kam-hon and that his younger brother went to Holland at the beginning of 1989. He said that the photograph on the identity card was not that of his younger brother.  A senior Chemist and Head of the Questioned Documents of the Forensic and Science Division said that the identity card was forged by reason of the fact that the photograph did not form an integral part of the card.

6. The three applicants gave evidence at the trial. The 1st applicant said that a person named Ah Cheng owed to him a sum of money amounting to $7,000 for gambling and a loan in mid-1988, but Ah Cheng had disappeared. However, he said that he met him by chance at the restaurant when he was having tea there with the 2nd applicant on the 25th April at about 3 p.m. The 1st applicant said he pressed Ah Cheng for the return of the money due to him, but Ah Cheng said he only had about $100. The 1st applicant said he noticed Ah Cheng had an identity card on him which he took away and handed to the 2nd applicant.  The 2nd applicant said it was taken as security for the loan although this was not said by the 1st applicant. A discussion then ensued about repayment of the sum owed and Ah Cheng mentioned to him that he could take the 1st applicant to a friend in Shum Shui Po in order to get the money. Both the 1st and 2nd applicants said that the 2nd applicant spilt some tea at this point and that he went home to change whilst the other two remained in the restaurant. The 2nd applicant said he changed in a hurry but could not remember where he had placed Ah Cheng's identity card. After he had changed, he returned to the restaurant and with Ah Cheng and the 1st applicant, went to the flat in question.

7. They arrived at the flat at about 4 p.m. but the premises were empty. In fact there was no furniture, but the windows were covered by curtains, some having been fixed by adhesive tape. Ah Cheng left the flat at about 4:30 p.m. saying that he was going to look for his friend. The 3rd applicant arrived at the flat at about 6:10 p.m. after having made an arrangement with the 1st applicant to go out for a meal. When he arrived, he was introduced to the 2nd applicant. The 2nd applicant admitted opening the door for the two police officers who were disguised as delivery workers. The 2nd applicant testified that he knew nothing about the order for delivery of goods, but he allowed in the police officers disguised, as workers, as he believed that Ah Cheng or the owner of the flat may have ordered the goods.

8. The 1st applicant said that he heard a commotion in the sitting room and believed that Ah Cheng's men had come to take revenge, so he went to the kitchen, and there picked up a knife with the intention of defending himself. When he came to the place where the 2nd applicant was he said he was stunned on seeing the gun. He denied that anyone shouted "Police". He said he heard a bang, felt pain on his head and fell to the ground. The 2nd applicant confirmed that the 1st applicant was holding an object and that a shot was fired by the Chief Inspector in the direction of the room and that the 2nd shot struck him.

9. The 3rd applicant's evidence was to the effect that he had been asleep all the time and was woken up when he heard two bangs similar to a fire cracker. He denied the allegation of robbery that was subsequently put to him by the police.

10. Mr Matthews, counsel for the 3rd applicant submitted two grounds of appeal.  First, in view of a request by the jury after they had retired, for clarification of the definition of "joint enterprise", they could not have been satisfied that the 3rd applicant participated in the commission of the offence. We are of the opinion that the judge gave a comprehensive direction on the issue of "joint enterprise" and having done so, the jury was perfectly entitled to find that the 3rd applicant was a participant.

11. The second ground was that the judge failed to explain the elements of the offence of theft when giving a direction on the elements of the offence of robbery. Whilst it would have been desirable to have explained the legal definition of "theft" or "stealing", we do not consider that this was a fatal flaw in the summing-up in the circumstances of this case. The application of the 3rd applicant is therefore refused.

12. The 1st and 2nd applicants appeared before us today in person and drew to us matters that were canvassed before the jury at the trial whilst a complaint was made about Mr Ng who did not go into the witness box. However, counsel who appeared on behalf of the applicants at the trial had in fact agreed that the evidence of Mr Ng be agreed by way of admitted facts. This evidence in any event is not relevant to the cases that were put forward by the 1st and 2nd applicants at the trial. A further suggestion made to us today by the 2nd applicant that the trial judge was biased was wholly unmeritorious. The applications of both these applicants are therefore refused.