THE QUEEN v. LAW WAI HONG AND OTHERS

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicants, Law Wai Hong, Lau Kai Ming and Li Kim Hung appeared for trial before Bewley, J. and a jury upon an amended indictment dated 18th August 1989. On that indictment they were respectively D1, D2 and D3.

3. Count 1 on the indictment was robbery and concerned D3 only. This was a robbery at the Chung Hau Fisheries Association in Yuen Long on 28th March 1988. Named in that count as co-robbers were Yiu Kam Hoi, Tang Yu Shun, Fong Chun Fat, Chan Wai Shing, Lee Chi Hung, Cheung Hon Yuen and others unknown.

4. Count 2 concerned D1 alone and alleged robbery on 29th March 1988 at the ground floor of Oi Lai House, Yau Oi Estate. Named as co-robbers in the particulars were Tang Yu Shun, Chan Wai Shing, Cheung Hon Yuen and others unknown.

5. Count 3 concerned D1 and D3 and the particulars alleged a robbery on 10th April 1988 at the Lai Yuen Villa, Jordan Road. Named in the particulars as co-robbers were Yiu Kam Hoi, Tang Yu Shun, Chan Wai Shing and others unknown.

6. Count 4 concerned D1 and D2 and alleged robbery on 15th May 1988 on the 1st floor staircase at the Wing Hing Building, Yuen Long. Named in its particulars as co-robbers were Chan Wai Shing and Cheung Hon Yuen.

7. Count 5 concerned D1, D2 and D3 and alleged robbery on 1st June 1988 at the Wilson Carpark at the junction of Tai Po Road and Pik Fung Road, Fanling. Named as co-robbers were Yiu Kam Hoi, Tang Yu Shun, Chan Wai Shing and others unknown - the "Wilson Carpark robbery".

8. This final indictment had a long and convoluted history to which it will be necessary to refer later.

9. D1 was convicted by the jury on counts 3, 4 and 5, D2 on counts 4 and 5 and D3 on count 3 only. They all sought leave to appeal those convictions. Originally D1 had also sought leave to appeal against his sentence but that application was abandoned in the face of the court.

10. These applications first came before us on 28th November 1990. Counsel for one of the applicants was absent and the court was unable to proceed. It was relisted for 28th February and at that hearing D1 was unrepresented, D2 was represented by Mr. Grounds and D3 by Mr. Wright.

11. At the conclusion of the hearing we refused the applications of D1 and D3, gave leave to D2, treated the hearing of the application as the hearing of the appeal but dismissed his appeal. We stated we would hand down our reason later and this we now do.

12. In his homemade grounds, D1 alleged misdirections by the trial judge which resulted in an unjust verdict from the jury. We heard his submissions last in case any matters raised by either Mr. Grounds or Mr. Wright should enure to his benefit. He did not then seek to make further submissions.

13. The main evidence in respect of his guilt came from accomplice witnesses - persons named as co-robbers in the counts which he faced. The jury were properly directed as to the dangers of reliance upon accomplice evidence. In respect of count 3, they were told that the only evidence was that of Chan Wai Shing and that there was no corroboration; on count 4 there was also the evidence of Chan Wai Shing but, in addition, there was the applicant's cautioned statement on which the jury were directed that, if they found it to be true, it could corroborate the evidence of Chan Wai Shing on count 4. A similar situation existed on count 5.

14. We had very carefully considered the whole of the lengthy summing up delivered on 18th September 1989 and we were unable to find any misdirection either in law or in fact which would make the conviction of D1 unsafe or unsatisfactory.

15. The trial judge extensively canvassed the evidence given by Chan in relation to D1 and, as we indicated, had given a full and proper accomplice warning and corroboration direction. We saw no reason to interfere with the convictions of D1. The jury had evidence before them upon which their conclusions of guilt were fully justified.

D2 Lau Kai Ming - "Lau"

16. D2 did not seek, in the Amended Perfected Grounds of Appeal filed on his behalf, to contest his conviction on count 4, the Wing Hing Building robbery. He did however contest that on count 5, the Wilson Carpark robbery, on the grounds that the count is a nullity. It is this which led us to consideration of the previous history of the indictment of 18th August 1989.

17. What happened was this: the first indictment was dated the 21st April 1989 and filed on 28th April. This was a consolidated indictment referring to cases nos. 216/88 and 44, 65, 85/89. The named accused were required to answer on 10th August 1989. It contained a conspiracy count, count 5, and its count 7, which named Lau as a defendant, was the Wilson Carpark robbery of 1st June 1988.

18. The second indictment was dated 7th July 1989. It referred to what had become case no. 185/89 and was filed on 15th July. Lau was again D6: the conspiracy remained count 5 and the Wilson Carpark robbery remained count 7, but Lau's name did not appear in that latter count. The named defendants were to answer to it also on 10th August.

19. The third indictment was also dated 7th July 1989 Lau had become D5, the conspiracy became count 4 and the Wilson Carpark robbery count 6. Lau's name was again omitted from the Wilson Carpark robbery. No answer date was mentioned.

20. The fourth indictment with the endorsement "amended" was dated 11th August 1989 and filed on 14th August. Lau became D3, the conspiracy count became count 4 and the Wilson Carpark robbery remained count 6. We note that in this indictment count 5 - the Wing Hing Building robbery - was said to relate to Lau as D3 and Cheung Hon Yuen as D4, the particulars of offence named Law Wai Hong and Cheung Hon Yuen as the two defendants standing trial on that count. Lau, D3, was merely named as a person who had committed the robbery with them.

21. The fifth and last indictment - "the trial indictment" - was endorsed as "Amended", and it was further amended in minor aspects, by order of the trial judge. It was dated the 18th August 1989.

22. In the trial indictment Lau became D2, the conspiracy count disappeared and the Wilson Carpark robbery became count 5.

23. These confusing alterations came about because there was no committal of Lau on the Wilson Carpark robbery, there were pleas of guilty on differing dates by different named defendants - in particular Chan Wai Shing - two other defendants absconded and, finally, because the Crown was put to its election by the trial judge as between the conspiracy count concerning Lau and the substantive count which was the Wing Hing Building robbery. The Crown elected to proceed with the substantive count.

24. While Lau had originally been charged with the Wilson Carpark robbery it later became apparent to the Crown that there was no evidence against him to sustain that count against him. His name was omitted in the second and third indictments, but was included in the fourth and fifth indictments.

25. It was because Chan Wai Shing had pleaded guilty at the eleventh hour and had then given a statement to the police which implicated Lau in the Wilson Carpark robbery that the Crown asked to amend the now count 5 by adding Lau as a defendant.

26. It is Mr. Grounds' contention that Lau was never properly before the court upon count 5 in the trial indictment. The appearance, disappearance and reappearance of Lau's name was drawn to the attention of the judge on 14th August 1989 before the trial on what became final indictment commenced. Counsel then appearing for the Crown proposed placing a fresh indictment before the court. Counsel then appearing for Lau informed the court that he had received a copy of what he understood to be that proposed indictment.

27. Counsel had referred the judge to ss.23 and 24A of the Criminal Procedure Ordinance, Cap. 221 but took no objection to the course the Crown intended. It is, of course, trite law that the fact of no objection being taken does not confer a jurisdiction where none exists.

28. Mr. Grounds also drew our attention to those sections and it was his submission that what had happened here falls within the ambit of neither.

29. Section 23 relates to orders for amendment of indictment, separate trials and postponement of trials. It reads, as far as it is material:

 

"23(1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice."

30. It was not suggested that what had happened caused injustice nor is it suggested that Lau was in any way prejudiced or embarrassed in his defence. It is purely a technical point. In short there cannot be an amendment, says Mr. Grounds, of something which does not exist.

31. Section 24A, as far as it is material, reads in its subsection (1):

 

"Subject to subsection (2) no indictment charging any person with an indictable offence shall be preferred unless -

 

32. Mr. Grounds submitted that, there being no committal for trial for the offence upon which Lau was finally charged and convicted, it cannot be said that what happened in the court below amounted to the preferment of a voluntary bill under s.24A(1)(b).

33. At trial, after discussion which, although this is not intended as a criticism of the trial judge, was confused by the diversity of the numbering of defendants and the alteration of and the multiplicity of counts, the judge finally made an order that the Crown be put to election on the conspiracy count and, second, that that the Wilson Carpart court be amended by the addition of the name of Lau as a defendant. To reflect this yet another indictment was preferred - the trial indictment.

34. While the submissions of Mr. Grounds were properly made and the point was one which he was entitled to make before this court, it is our view that neither the trial indictment nor its count 5 were nullities. The situation was a very difficult one. The Crown, with hindsight, could have avoided the multiplicity of indictments by drafting with rather better care. It is clear that the omission of Lau's name at one stage on another count was an typographical error. It is equally clear that the evidence of Chan Wai Shing was capable of - and in the end did - implicate Lau in the Wilson Carpark robbery.

35. It would have been preferable if the proper voluntary bill process had been followed in respect of Lau on the Wilson Carpark robbery count. We have had our attention drawn to a Practice Direction given in the English Court of Appeal by Lord Lane L.C.J. on 11th December 1990, effective as from 1st January 1991, and reported, so far as we are aware, only in "The Independent" of the 14th December 1990. This sets out the careful steps which should be taken in applications under s.2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 - a section and Act upon which our s.24A is based - when seeking to prefer voluntary bills. These are to be, respectfully, commended and if followed the situation which arose here, and which we trust will not occur again, would have been avoided. The giving of a similar form of direction in Hong Kong might well be considered. There is presently no guidance in our legislation or elsewhere as to the proper procedure to be followed.

36. The Judge's order here was, in effect, to consent to the preferment of a voluntary bill of indictment. There being no prejudice to Lau in the conduct of his defence and no injustice caused to him it was proper in all the circumstances of this case for the trial judge to amend the indictment as he did and to put the Crown to their election.

37. The merits of the convictions were not in dispute. We, nevertheless, considered with care the whole of this summing up in which the jury were directed that the evidence on count 4 consisted solely of that of Chan Wai Shing without corroboration and that a conviction on count 5 depended upon their belief in the evidence of that accomplice witness, concerning whom proper directions in law were given. We held against Mr. Grounds' submissions on the technical point but considered that it was one properly taken and for which leave to appeal should be given.

38. We gave that leave, treated the hearing of the application as the hearing of the appeal but dismissed the appeal.

D3 - Li Kim Hung ("Li")

39. The main ground argued on his behalf by Mr. Wright was that his cautioned statement was not capable of corroborating the evidence given by the accomplice Chan Wai Shing and that the trial judge was in error when he instructed the jury to the contrary.

40. In support of that main ground it was his submission that the statement did not pass the Baskerville, [1916] 2 KB 658, test in that it did not implicate Li in the commission of the offence. At its highest it could amount only to evidence of mere presence and of knowledge of the offence but not of any intent to become part of a joint enterprise to commit the robbery. Further, he complained, the trial judge failed to direct the jury as to how the cautioned statement was capable of amounting to corroboration and that mere presence in the vicinity with the knowledge that an offence was to be committed was not capable of raising an irresistible inference of guilt.

41. Additionally, Mr. Wright submitted that the trial judge incorrectly directed the jury on the weight to be attached to the cautioned statement in that, having directed the jury that the statement did not amount to a confession he wrongly directed them that one particular answer was "particularly damning"; secondly, he prefaced a reading of an extract from Li's statement to the police with the words: "He described the robbery in these terms" (emphasis supplied). The jury, said Mr. Wright, may have been seriously confused and may have equated such admissions as there were in the statement with evidence of guilt. He underlined the fact that on two of the counts, counts 1 and 5, where accomplice evidence was not corroborated, the jury acquitted Li.

42. Let us say immediately that the trial judge properly left it for the jury to decide whether they found Li's cautioned statement corrooorated the evidence of Chan Wai Shing. They were taken in detail through the evidence relating to the taking of that statement. Its contents were fully brought to their attention.

43. It was, briefly, the evidence of Chan Wai Shing that on 9th April - that is the day before the robbery - a number of persons were in Cheung Hon Yuen's house and these included Li, Law Wai Hing (D1), Yiu Kam Hoi and Tang Yu Shun. Li was said to have informed the group that a woman went to the Lai Yuen Villa every night with a lot of money. He suggested that they rob her. They agreed to do so. Yiu Kam Hoi and Chan Wai Shing were to carry knives, Law Wai Hung was to tie up the people inside, Tang Yiu Shung was to wait in a get away car. Two knives had already been secreted about half a block away from the villa.

44. Chan went with Yiu Kam Hoi to collect the knives and then, a little distance away, met Law Wai Hong and Li. Li was to wait in the street to "look at the street for us", which Chan said meant acting as a lookout. The others went to the villa. There Yiu Kam Hoi shouted "robbery", Chan Wai Shing threatened the unfortunate victim with a knife and Lau Wai Hung tied her up. She was struck on the head with the knife handle and robbed. The men left and boarded the car waiting at the rear of the villa. At that time Chan Wai Shing did not see Li.

45. On the way to Yuen Long they threw the knives onto a hillside. When they reached Cheung Hon Yuen's house Yiu Kam Hoi paged Li and told him it was "fixed up". There was an argument because apparently the money they expected to find was not present in the villa when they went there. Yiu Kam Hoi asked Li to return immediately to Cheung Hon Yuen's house. Li said he could not.

46. Chan went on that Yiu Kam Hoi asked Law Wai Hon and himself to take a stolen watch to pawn in Macau on the following day. There it was pawned for $5,000 by Yiu Kam Hoi and Chan received $1,000 as his share. According to computer records, of the whole group, it was only Li who had gone to Macau on that day.

47. Li's statement starts at p.135 of the transcript and was exhibit P97(a) at trial. It was taken on 3rd March 1989 at midnight. In it Li said that on the evening of 9th April he was paged and asked to go to the Italian Restaurant in Yuen Long for tea. When he got there he saw, amongst others, Chan Wai Shing. There was a suggestion that they go to Kowloon, by whom made he could not remember, and they left in Tang Yu Shun's car. In order to set Mr. Wright's complaint in its proper context we continue Li's narrative in the way in which the judge presented it to the jury, that is, by relating it in Li's own words. The judge introduced it by saying :

48. "He [Li] describes the robbery in these terms."

49. Then followed the narrative:

 

"On the way out to Kowloon, Chan Wai-shing said to us on board the car, 'There is something to do. Will you do it?' Yiu Kam-hoi said, 'What to do?' Yiu Kam-hoi and Lo Wai-hong then said, 'Let's go out and see what the position is first.' Then Yiu Kam-hoi asked, 'Is there any "Ka Sang" here?' Chan Wai-shing said, 'It will be available when we reached outside there. ' However, he did not mention where it was placed. (He) only said that the 'Ma Lam' was in Jordan Road, but he did not mention the exact location. When we arrived at the outside of Lai Yuen Villa, Jordan Road, Chan Wai-shing pointed with his hand at Lai Yuen Villa whilst on board the car, and said 'This is the one.' At that time, I had not yet indicated to Chan Wai-shing whether I would do it or not. Then our car was driven to the outside of Golden Harvest Theatre, Jordan Road. I was the first one to alight from the car. I was the first one to alight from the car. Then, Chan Wai-shing, Yiu Kam-hoi and Lo Wai-hong also alighted from the car. Having alighted from the car Chan Wai-shing told Tang Yu-shun to drive the car to somewhere behind the Lai Yuen Villa. Afterwards, I saw Chan Wai-shing, Yiu Kam-hoi and Lo Wai-hong go into a building on the opposite side (of the road). I did not know for what purpose (they) went inside there. About 15 minutes later, I saw Chan Wai-shing, Yiu Kam-hoi and Lo Wai-hong come out. (They) then went all the way to Lai Yuen Villa and then went up to Lai Yuen Villa. However I did not know or see what they did up there. I walked around in the vicinity to see if there were any policemen coming. After about 20 minutes, I saw Chan Wai-shing, Yiu Kam-hoi and Lo Wai-hong come out. Then the three of them walked to some place behind the Lai Yuen Villa. When I saw them leave, I also left."

50. The judge then told the jury:

"At the end of the statement be was asked about the weapons, and he said 'May be there would be knives or something like that available', and finally 'I did not act as a lookout. I only took a stroll in the street in the vicinity.'".

51. We should also mention that Li was also asked what he had understood when Chan Wai-shing had said that "Ka Sang" would be available when they arrived outside the premises. His reply was:

"May be there would be knives or something like that available."

52. There was no doubt that a robbery had occurred; that was never contested. If Chan Wai-shing's evidence was to be believed, then at the very least, Li had knowledge that a robbery was likely to take place. We find it inconceivable that anyone having been asked "to do it", having been told that knives or the like would be available on reaching "outside there", having had a villa pointed out on arrival and told "This is the one" and having then walked around the vicinity to see if any policemen were coming, would not have realised that weapons were to be used inside the villa. In our view no valid criticism can be made of the judge's introductory words, "He [Li] describes the robbery in these terms. " If the jury accepted the contents of Li's statement as being true, despite the trial judge's somewhat over generous description of it as not amounting "to a confession that he was a lookout during a robbery though it comes pretty close to it", it was evidence falling squarely within the Baskerville test which the jury would have been entitled to find was corroborative of the accomplice evidence.

53. His statement went a great deal further than, as Mr. Wright would have it, indicating mere presence and knowledge of the robbery. It described Li's attachment to the robbery.

54. It was not incumbent upon the trial judge to go further than he did on this issue. He had placed the whole of the matter fairly and squarely before the jury. It was for them to decide whether or not the statement amounted to corroboration of the accomplice, Chan Wai Shing. He did not suggest to them that this statement was of itself capable of founding a conviction, indeed if anything his direction went to the contrary. It was before the jury solely as evidence which, should they so find, was capable of corroborating Chan Wai Shing's testimony.

55. The jury were very strongly, and properly, directed by the judge on the dangers of reliance upon accomplice evidence.

56. Having considered the grounds, the submissions made upon them, the evidence in the case and the directions given by the trial judge, we were not persuaded that Li's conviction was in any way unsafe or unsatisfactory. The application for leave to appeal was therefore refused.