NG YIU CHEONG v. R.

1993, No. 693
(Criminal)

___________

______________________________________

J U D G M E N T  O F  T H E  C O U R T

______________________________________

Macdougall, V.P.:

1. The applicant was convicted of robbery after trial before Deputy Judge Meredith in the District Court and was sentenced to five years' imprisonment. He now applies for leave to appeal against both conviction and sentence.

2. The evidence was that at 4.30pm on 26 April 1992, a Mr Ng Kam- hing, a man aged 68 and the father of the applicant's uncle was just emerging from the bath room of the flat which he occupied with his son when he was confronted by two men who told him that it was a robbery. They pushed him onto a sofa, blindfolded him with adhesive tape, gagged him with a towel and bound his hands together with tape. The robbers then ransacked the bedroom occupied by the victim's son, a Mr Ng Wai-wah. It became plain that the robbers had been given inside information. This caused suspicion to fall upon the applicant, particularly in the light of the fact that he had made an inconsequential telephone call to the flat shortly before the commission of the robbery in which he spoke to his uncle and enquired as to what he was doing.

3. On being confronted by the family and questioned as to whether he had been involved in the robbery the applicant admitted that he had given information to two friends to enable them to carry out the crime. He then agreed to meet the two friends so that an ambush could be laid for them. As a result they were arrested. The applicant then took the police to an abandoned hut where part of the stolen property was recovered. He also made two confessional statements under caution to the police.

4. The particulars of offence at the commencement of the trial read as follows: Ng Yiu-cheong on the 26th day of April 1992 at Flat P, 3/F, Kwan Tak Building, Hong Lok Road, Yuen Long, New Territories, in Hong Kong, robbed Ng Wai-wah of cash $110,000-HK currency, two 'Rolex' Gent's wrist watches, one gold wrist chain, one gold necklace and four gold fingerrings. Also, at the commencement of the trial, there was before the court a formal admission made by the applicant pursuant to section 65 of the Criminal Procedure Ordinance Cap 221. It reads as follows.

5. The first accused Ng Yiu-cheong admits that on 26 April 1992 at the place set out in the charge sheet dated 4 June 1992, Ng Wai-wah was robbed of the properties set out in the said charge sheet.

6. Since the Crown did not call the victim of the robbery to give evidence, the case against the applicant rested on the two cautioned statements in which he clearly admitted that at his instigation, and knowing that there were valuable articles in his uncle's flat, he accompanied two other males "to rob my uncle's home of the things but I didn't enter. They entered there to take away money and gold ornaments. We subsequently shared the property among ourselves."

7. The applicant then related how he had waited until he and his accomplices thought that his uncle had left the flat. After having made the initial exploratory telephone call to his uncle, in the course of which he learned that his uncle was about to leave the flat, the applicant later followed this up with another call to see if the coast was clear. When no one answered the call, and after one of his accomplices had gone and bought some adhesive tape, the applicant, accompanied the two accomplices to the flat where he waited outside while his companions forced an entry to the premises.

8. After holding a voir dire to determine the admissibility of the statements, prosecuting counsel sought and was granted leave, without objection from the defence, to amend the charge by substituting the name Ng Kam-hing for Ng Wai-wah as the victim of the robbery and by adding at the end of the particulars of offence the words "the property of Ng Wai-wah". The case for the prosecution on the voir dire then closed. The applicant elected not to give or call evidence on the voir dire. After submissions had been made, both by counsel for the prosecution and the defence, the deputy judge ruled that the statements had been made voluntarily by the applicant and admitted them into evidence. The defence then elected to call no evidence and closed its case. The applicant was duly convicted. In his Reasons for Verdict the deputy judge stated:

"I addressed my mind to the degree of the Defendant's participation. He had counselled and procured at least a burglary. They waited, hoping that the house would be unoccupied. During the wait Tam Kok Hung (who was one of the accomplices) went away to buy tape to the defendant's knowledge. At that stage robbery was clearly in this defendant's mind. The defendant went with the culprits to the premises and was there or nearby when the robbery was committed and shortly thereafter he shared in the proceeds. That is robbery."

9. Mr Mullick who appeared for the applicant in this court but not in the court below advanced essentially two grounds of appeal in respect of conviction. First, he submitted that there was no or no sufficient evidence that a robbery had been committed since the alleged victim did not give evidence and the admission made by the applicant pursuant to s65C was that the victim of the robbery was Ng Wai-wah not Ng Kam-hing as alleged in the amended charge.

10. We find no merit in this highly technical point. The identity of the victim of a robbery is not an essential ingredient of the offence. It is simply a particular which, in order for him properly to conduct his defence, enables a defendant to identify the robbery which he is alleged to have committed. It would be absurd if, for example, the defendant were to be entitled to be acquitted in the event that it was discovered that for personal reasons the victim had given a false name to conceal his true identity. The applicant was not in the least prejudiced in his defence for his admissions as to his role in the crime were made in response to the particulars stated in the preamble to the caution in which the statement-taking police officer referred to the victim as Ng Kam-hing. Moreover, the items which the officer listed in the preamble as those that had been taken in the course of the robbery, and the references that he made to the date on which and the address at which the robbery was alleged to have been committed were the same as those which were later set out in the particulars of the offence in the charge. It was in respect of the robbery to which these details related that the applicant made his confession. Plainly, there was evidence in the form of the confession on which the deputy judge could rely in convicting the applicant.

11. The question which then arises is whether the deputy judge was justified in convicting the applicant of robbery or whether, as Mr Mullick submitted as his second ground of appeal, the evidence simply disclosed an offence of burglary or theft. We pause here to observe that, pursuant to s32 and the schedule to the Theft Ordinance Cap 210, the offences of theft and handling stolen goods, but not that of burglary, are alternative verdicts to that of robbery.

12. Mr Mullick contended that it appears from the applicant's confession that he and his accomplices, by making exploratory telephone calls to the uncle's flat, had sought to ensure that the flat would be unoccupied when they entered-to steal the valuables. We readily accept that the confession reveals that this was the applicant's hope. No doubt he thought that his uncle had left the flat, and did not realise that his uncle's father had remained behind and would be present there when the break in was to occur. But it is also clear that during their wait for the uncle to leave the flat one of the applicant's accomplices, to the knowledge of the applicant, went and got some adhesive tape for use in the commission of the crime.

13. In our view the deputy judge was entitled to conclude that the applicant knew that if, contrary to his expectations, someone was present in the premises at the time of the break-in, or returned while the goods were being stolen, he or she would be overpowered and tied up, and that this was why the applicant himself, fearing that he would be recognised in such an event, did not actually enter the premises with his accomplices but remained waiting outside.

14. The applicant did not give evidence. He could therefore not complain that, in the absence of the evidence to the contrary, the deputy judge more readily arrived at the conclusion which he did. The application for leave to appeal against conviction is therefore refused.

15. With regard to sentence, Mr Mullick submitted that five years' imprisonment was manifestly excessive in light of the facts that the intruders were unarmed, that the applicant had no previous convictions, that he confessed to his relatives that he had participated in the crime, and that he not only retrieved some of the stolen property but assisted the police by giving information as to the identity of his accomplices and led the police to a location where a valuable item of stolen property was recovered.

16. In his Reasons for Sentence the deputy judge stated that he gave the applicant credit for his clear record and for the fact that he had returned some of the stolen property and had co-operated with the police to enable them to arrest his accomplices. However, this was not a case where the offender, of his own volition and without prompting, surrendered himself and confessed his crime. Suspicion had fallen on him and he confessed only after being confronted. No doubt many, if not most, robbers who invade premises earnestly hope for their own sake that the premises are unoccupied, thereby reducing the risk to themselves and making it much easier to carry out their criminal intent to steal the valuables within. But they are prepared to convert a hoped for burglary into a robbery if the necessity arises. Such was the intention of the applicant and his accomplices in the present case. In the circumstances we are not persuaded that a sentence of five years' imprisonment is manifestly excessive or wrong in principle. The application for leave to appeal against sentence is also refused.