LAM KING HANG v. R.

1993, No.273
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Ryan, J:

1. This is the judgment of the court.

2. The applicant was charged with Wong Chi Pan that between the 1st September 1989 and 13th December 1989, they conspired with Lam Kwok Hung and Yam Chik Sang to commit robbery. He was convicted after trial before Leonard, J. and a jury. We refused leave to appeal against that conviction and said we would hand down our reasons, which we now do.

3. Lam Kwok Hung (PW1) and Yam Chik Sang (PW2) had earlier pleaded guilty to a charge of having robbed the Standard Chartered Bank, Cheung Sha Wan Road Branch. They gave evidence in the trial that in September 1989, the applicant, his co-defendant Wong and they had entered into an agreement to carry out a robbery. The target premises had not at that point in time been selected but to assist them to put the plan into effect a pistol was purchased.

4. The first premises inspected by the conspirators was a goldsmith shop and the applicant, PW1 and PW2 went on several occasions to the locality with the intention of carrying out a robbery of that shop. They carried with them the pistol and other paraphernalia to enable them to carry out the robbery. The plan was on each occasion aborted because of either the applicant or PW1 claiming to have seen police patrolling in the area. The next premises inspected was a jewellery shop but the plan to rob that shop was abandoned when PW1 got cold feet. They then considered the robbery of a watch shop, but both PW1 and the applicant were not satisfied that the premises was suitable for their purposes. They then viewed a finance company, but after inspection the applicant advised them not to proceed because the escape route was not satisfactory. The last premises considered was the Standard Chartered Bank, Cheung Sha Wan Road Branch. PW1, PW2 and the applicant decided the premises were satisfactory and fixed a date on which to carry out a robbery. However, the applicant did not keep the appointment with PW1 and PW2 as he had something else to do, and they therefore postponed the robbery to the following day. The applicant was advised of the change of plans, but on the following day when he failed to appear, PW1 and PW2 proceeded to carry out the robbery in his absence. No explanation was given for his absence.

5. The applicant did not give evidence at the trial, but the defence put through cross-examination of PW1 and PW2 was that the applicant had never been a party to such a conspiracy.

6. In respect of the offence of conspiracy, the learned judge gave the following direction:-

"A conspiracy is simply an agreement to commit a crime. Robbery is a crime. A conspiracy to commit a robbery is in itself a crime, whether the robbery takes place or not. Before you convict you must be sure the defendant agreed with the others named in the indictment that one or more of them would commit robbery. If you find that the defendant entered into that agreement, then you may convict him.

Look at all the evidence. If you are sure there was an agreement that a robbery be carried out and the defendant was a party to that agreement, you can convict him."

7. The grounds of appeal argued by Mr Lunn who appears for the applicant are that the learned judge failed to direct the jury that at the time the applicant entered into the agreement to rob, he intended that the agreement be carried out; and that in the light of the evidence that the applicant had prevaricated on the earlier occasions when suitable opportunities for robbery were sought, his absence at the robbery of the Standard Chartered Bank and his absence on the earlier date planned for that robbery, the omission to give a direction as to the applicant's intention as an ingredient in the offence of conspiracy renders the verdict unsafe and unsatisfactory.

8. It is Mr Lunn's argument that having directed the jury that they had to be sure that the defendant had agreed with the others that one or more of them would commit a robbery, it was incumbent on the learned judge to further direct the jury that they also had to be sure that the applicant had intended that the robbery would be carried out. He argues that if such a direction had been given, it would have been open to the jury to find the applicant not guilty on the ground that he lacked the necessary intention.

9. Mr Cross who appears for the Crown concedes quite properly that mens rea is an element in the offence of conspiracy which the Crown has to prove. He also concedes that the learned judge was in error in not giving the jury a direction to this effect. In our view, this was a concession that he should not have made. The learned judge fairly directed the jury on the only issue raised by the defence, namely that PW1 and PW2 were liars and that the applicant was never a party to the conspiracy. Once. the jury had decided that it had been proved that he was a party, there was then no evidence upon which they could have reached a decision that, despite such agreement, the applicant had never intended that the plan to rob should proceed. On the contrary, the evidence was that he had been a party to all of the earlier planning and had on several occasions gone to various locations with PW1 and PW2, carrying with them a pistol and other robbery paraphernalia, intending to carry out a robbery. The evidence was that those plans had been aborted because of outside factors: such as the presence of patrolling police officers, or the inadequacy of the escape route. There was no evidence that the applicant had, at any time, expressed a desire that the robbery should not proceed. For the learned judge to direct the jury to consider a defence based on a lack of intention would have been to invite the jury to ignore the evidence and to enter into the realms of speculation. He was right not to have done so.

10. There is nothing in the grounds of appeal which makes the verdict, in any way, unsafe or unsatisfactory.