TANG YUEN HANG and Another v. R.

1991, No. 519
(Criminal)

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HEADNOTE

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Criminal law - Jury returned unanimous verdict on one count of robbery against an accused but failed to agree on two other counts of robbery against the same accused - Whether verdict of guilty inconsistent with verdicts on the counts which the jury failed to agree - Evidence of accomplices - Jury entitled to take into consideration evidence of another accomplice available in the count on which the accused was convicted but not available in the counts on which the jury failed to agree.

IN THE COURT OF APPEAL

1991,No. 519
(Criminal)

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JUDGMENT OF THE COURT

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Wong, J :

1. The applicants were among five defendants jointly tried before Deputy Judge Jennings and a jury on an indictment containing a number of counts of robbery and possession of ammunition without a licence. The first applicant, Tang Yuen-hang, who was D1 at the trial, faced three counts of robbery and one count of possession of ammunition. We need not concern with the last count as the jury returned a verdict of not guilty on the direction of the court after the prosecution had offered no evidence against him midway during the trial. In respect of the first two counts of robbery (counts 1 and 2 in the amended indictment) the jury failed to reach any verdict but by a unanimous verdict they found him guilty of the robbery of Tin Sang Jeweller and Goldsmith Company (count 4). He was sentenced to imprisonment for 15 years and the judge ordered the two counts upon which the jury had failed to agree to remain on the file.

2. The second applicant, Chiang Yuek-chun, who was D2 in the court below, was charged with three counts of robbery (counts 1,2 and 3) and the jury found him guilty in respect of all of them. He was sentenced to 15 years imprisonment on each count but part of the sentence imposed on counts 2 and 3 was ordered to be served consecutively with the sentence of 15 years on the first count making a total sentence of 20 years imprisonment.

3. The applicants now seek leave to appeal against both conviction and sentence.

4. The particulars of the four robberies are :

First count

TANG Yuen-hang, CHIANG Yuek-chun and HO Kwong-ming, on the 28th day of December, 1989 at the business premises of Ru Sai Shing Goldsmith and Jewellery Company Limited, ground floor, 270 Castle Peak Road, Kowloon, Hong Kong, together with other persons, robbed YEUNG Hing-yum of approximately 1,529 gold ornaments, the property of the Ru Sai Shing Goldsmith Jewellery Company Limited.

Second count

Tang Yuen-hang and CHIANG Yuek-chun, on the 9th day of March, 1990 at the business premises of King Fook Gold and Jewellery Company Limited, located at ground floor, 1 Yee Wo Street, Hong Kong, together with other persons, robbed HON Kim-wah of 40 wrist watches and approximately 61 pieces of jewellery, the property of the King Fook Gold and Jewellery Company Limited.

Third count

CHIANG Yeuk-chun, and TSE Chen-man, on the 27th day of March, 1990 at the business premises of Prince Jewellery and Watch Company, Hangkow Centre, 9 Hangkow Road, Hong Kong, together with other persons robbed TANG Kiu-ming of 252 wrist watches and 6 pieces of jewellery, the property of the Prince Jewellery and Watch Company.

Fourth count

TANG Yuen-hang, on the 30th day of March, 1990 at the business premises of Tin Sang Jewellery and Goldsmith Company, located at ground floor, 258 Castle Peak Road, Kowloon Hong Kong, together with other persons, robbed WU Che-cheung of 267 gold bracelets and 15 gold necklaces, the property of the Tin Sang Jeweller and Goldsmith Company.

5. The evidence against D1 came from the uncorroborated testimony of two accomplices, HO Kwong-ming, D3 and TSE Chen-man, D4. D3 first met D1 in October 1989 in Heng Yang, China and at the suggestion of D1, he came to Hong Kong on 19th November that year with D2. In the latter part of December, D1 brought four men to the flat in Yuen Long where he and D2 were staying. D1 told him that D3 was going with him and the four men to rob and D2 was present when this was said. D1 and one of the four men called Keung Chai took out guns and D3 only agreed to do the robbery after Keung Chai had pointed the gun at his head.

6. D3 said that he committed the Ru Sai Shing robbery (count 1) with D1, one of the four men called Choi Tung, D2 and another of the four men called Peter who acted as the driver. During the robbery, D1 and Choi Tung pointed guns at the people in the shop while D3 and D2 had screw drivers and cloth bags to take gold ornaments from the counters.

7. He left Hong Kong for China after this robbery and returned on 20 February 1990 at the request of D1. Later, at the flat in Yuen Long, D1 told a group of people including D2 and D3 that they were going to rob the King Fook Gold and Jewellery Company. D3 did not want to go and said that he had been injured when jumping out from the train. D3 subsequently read from newspapers about this robbery (count 2) which took place on 9 March and he asked D2 if that was the robbery D3 had not taken part. D2 confirmed that it was and told D3 that he committed this robbery with D1, Chuen Yau-ping and two other men during which a shot was fired when Chuen Yau-ping accidentally discharged his gun. D2 further said that his role was to stand at the entrance pointing a gun at the security guard and D1 promised to give him $100,000 as his share.

8. Count 3 is the robbery of the Prince Jewellery and Watch Company and this concerns D2 only. It does not concern D1 in the sense that he had not been charged with it. It was the evidence of D3 that in a flat at Luk Yeung Sun Chuen, D1 mentioned that he was going to commit a robbery but did not say where. One morning sometime after 20 March, D1 took D2, D4 and Chau Heung-yeung out and came back in the evening.

9. The Tin Sang robbery (count 4) took place on 30 March. D3 said that at about 3.00 p.m. on that day D1 asked him to go with him to rob but he refused. D1 then said to him:"I will talk to you after I have done business", and left with Wong Chun-bun and Ngau Hop-wing. 2 to 3 hours later while D3 was in the flat with others, Ngau Hop-wing returned alone, looking very nervous and with a gun in his waistband. At about 7.00 to 8.00 p.m. D1 returned and told everyone present that Wong Chun-bun had been arrested by the police and D1 turned to Ngau Hop-wing and said : "We had already talked about and arranged that we should rob Ru Sai Shing. How come you ran into the entrance of the Tin Sang Goldsmith Shop?" D1 went on to tell them about who did what in the robbery and this included D1, Choi Tung acting as lookouts while Wong Chun-bun, Ngau Hop-wing and two other men went inside to rob. D1 also said : "I am standing on the opposite side and saw you people run into the wrong place."

10. Before their arrest on the night of 4 April, D3 said that D1 told him not to tell the police that D1 had taken part in the robberies.

11. The evidence of D4 can be very briefly summarized. He came to Hong Kong from Heng Yang City in Hunan Province, China in the latter part of February 1990 through the help and arrangement of D1 and D1's wife. He had hoped to borrow some money from D1 following the failure of his restaurant business in China. This was the first time he had been here. He was accommodated in a flat in Yuen Long by D1 where he lived with D2 and D3. Later he moved into another flat and lived with D1, D1's wife, Ngau Hop-wing and Chuen Yau-ping who were Relatives of D1's wife. D2 and D5 also moved in after a while. In mid-March, the whole group moved to a flat in Luk Yeung Sun Chuen.

12. On the morning of 27 March, the day of the Prince robbery, he was woken up by D1 and in the presence of two other men, D1 told him to join them to rob a watch company. He did not want to go but he was threatened by the two men with a knife and a pistol and D1 also told him that if he refused to take part he would do harm to his family. It was under duress that he agreed and went with D1 in a taxi to a petrol station to pick up a car which took them to the vicinity close to the Prince Jewellery Shop. A man came to the car several minutes later and gave the go-ahead signal. D1 told him to take a bag from the car and they both got out. He saw D2 and the men who had earlier threatened him nearby. Inside the shop, one of the staff was told to open a showcase from which a quantity of watches were taken and put into the bag D4 was holding.

13. He described the events of 30 March, the day of the Tin Sang robbery. D1 left the flat with Wong Chun-bun and Ngau Hop-wing at about 2.00 to 3.00 p.m. D1 returned several hours later and told D3 that his friend had been caught. D4 made no comment on this. The group left the flat in Luk Yeung Sun Chuen and spent the night in a hut in the country. They moved into the flat in Tsuen Kam Centre where they lived until 4 April when they were arrested. At the time of his arrest, D1 was found in possession of keys of the flat in Tsuen Kam Centre. On 2 April, D1 gave D4 a gold chain, a ring, a watch and $3,000 and told him that was his share after deduction of what had been spent on his food and accommodation. In the evening of 4 April, D1 told him that if D4 was caught he should not say that he had taken part in the robberies and should not mention D1. Again D4 was reminded of the consequences that could bring to his wife if he did. While in Lai Chi Kok Reception Centre, D1 told him that he had sent D4's wife Reminbui 20,000 and asked D4 not to testify against him in court.

14. It is to be observed that the judge in his summing-up at p. 18 described the evidence of D4 in these words :

"In the case of D1, there is no corroboration of D4's evidence which, although damaging to D1's case, does not directly imcriminate D1 in any of the three robbery counts. So far as D2 is concerned, D4 says that D2 took part in the Prince robbery, and, as with D3, D2's own cautioned statements are capable of being corroboration if you are sure he made them and they are true."

The judge correctly directed the jury that there was no corroboration of the evidence of either D3 or D4 and as D3 and D4 were both accomplices their evidence could not corroborate each other. He had earlier at p.8 warned the jury of the danger of convicting without corroboration.

15. D1 and D2 gave evidence in their own defence. Both denied committing any of the robberies. In the case of D1, D3 and D4 were telling packs of lies in the hope of getting themselves out of trouble or a lighter sentence and D3 also bore a grudge against him because of an incident some ten years ago when D1 refused to help D3 regarding a rape charge which D3 then faced.

16. The case of D2 was that he did not commit any of the charges because on each occasion he was in China. The confessions were the result of gross police brutality and the contents were fabricated by the officer who took the statements and totally untrue. He described the assault by the officers in great detail in his evidence.

17. On conviction, the sole ground of appeal of the first applicant is that the verdict on count 4 is unsafe and unsatisfactory having regard to the failure of the jury to agree on a verdict on counts 1 and 2 which was based on the same and uncorroborated evidence of D3, an accomplice.

18. It was argued before us by Mr. Macrae that having failed to agree on a verdict in relation to counts 1 and 2, the jury could not have been sure on count 4 because the evidence in support of all three counts came from one and the same witness, Ho Kwong-ming D3, which was completely uncorroborated. He cited R. v. Batten The Times, March 19, 1990 and R. v. Dayle 58 Cr. App. R. 100, both of which were decisions of the English Court of Appeal. Batten was a case where a conviction was quashed as being inconsistent with a disagreement in respect of a co-defendant who was jointly charged with the appellant with an offence of gross indecency and, in respect of whom, the issue which the jury had had to determine was essentially the same as the issue in the case of Batten. In Dayle, the appellant was originally charged with two offences: at the first trial the jury disagreed on the first count and acquitted on the second count. The appellant was convicted in a retrial. The Court of Appeal quashed the conviction on the ground that the disagreement and the verdict of acquittal at the first trial was inconsistent.

19. It is not necessary to discuss these two cases at any length and suffices to say that the facts are clearly distinguishable from the present appeal.

20. Miss Opai for the Crown contended that whilst the verdict on count 1 was somewhat difficult to understand, the verdict on count 2 was perfectly reasonable and consistent with the verdict on count 4. She attributed the failure of the jury to agree on count 2 on the ground that most of the evidence given by D3 against D1 was hearsay, D3 having heard it from D2. At first she sought to draw a distinction between disagreement and acquittal. In any event, she submitted that even no distinction existed, there was additional evidence from D4 which would justify the jury in coming to the conclusion that they did on count 4. The evidence of D4 which was not available in counts 1 and 2, is, in our judgment, something which the jury was entitled to take into consideration. Whether there is a difference between an acquittal and a failure by the jury to agree on a verdict is not an issue that we have to decide on the facts of this case. We are satisfied that the conclusion of the jury was reasonable and there is nothing unsafe or unsatisfactory in the result. The application by the first applicant for leave to appeal against conviction is therefore not granted.

21. The second applicant D2 was not legally represented in the appeal, his application for legal aid having been refused. His attempt to renew the application before us was unsuccessful. His grounds of appeal and arguments were contained in a written submission. Broadly, they were that the judge failed to give sufficient warning to the jury of the danger of convicting on the uncorroborated evidence of D3, an accomplice and should not have admitted his cautioned statements.

22. In his summing-up, the judge correctly and adequately directed and warned the jury on corroboration and the danger of convicting without it in reliance of the evidence of accomplices. He came to a decision that the confessions were voluntary and admissible after a voir dire. There is nothing wrong with that decision. The evidence of the accomplices, D3 and D4, was fully corroborated by the confessions which, even alone, were sufficient to support the convictions once the jury believed that the confessions were made by him and they were true.

23. The application by the second applicant for leave to appeal against conviction is also refused.