MOK YUI HING and Another v. R.

IN THE COURT OF APPEAL

1993, No. 676
(Criminal)

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J U D G M E N T

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Hon Yang CJ:

1. The applicants originally faced an indictment containing two counts: firstly, conspiracy to commit a robbery; secondly, carrying imitation firearms. When the prosecution evidence was concluded and after submissions of no case were made and ruled against, the Crown, upon being put to an election, indicated that they would proceed on the first count.

2. The defence then indicated that neither applicant i.e. D1 and D2 at trial, wished to give evidence or call any witnesses. The jury was directed to return a verdict of not guilty on the second count and the judge's summing up was devoted to the first count of conspiracy only.

3. On appeal, complaint was made that the verdicts were in the circumstances inconsistent particularly having regard to the judge's direction to the jury. In order to see how the complaint is put, it is necessary to quote two passages from the summing up on this question. Firstly, the judge said this:

" Before you could infer that there was an agreement to rob amongst the occupants of this car, you would have to find that they possessed the imitation pistols. Pistols of this kind would obviously be useful to those who were intending to commit a robbery."

And on the following page, the judge said:

" I have suggested that before you could infer that there was any agreement to rob you would have to find that the conspirators possessed the imitation pistols. So the question of possession of the pistols is still something which must exercise your mind even though I have directed you to find the defendants not guilty of the Second Count which does relate to possession of pistols."

4. It is submitted on behalf of the applicants that the indictment should not have included the conspiracy count and the substantive count of possession of imitation firearms together. Then it was argued that as a result of what took place at trial, inconsistent verdicts were delivered by the jury and the inconsistencies stemmed from those passages of the summing up which I have just referred to.

5. Putting the arguments made on behalf of the applicants more fully, they go something like this. Having put the prosecution to its election whether to proceed on the first count, which was of conspiracy to commit a robbery, and the second count, which was of carrying imitation firearms with criminal intent, and having been told by the prosecution that it elected to proceed on the first count only, the judge directed the jury to acquit on the second count, and the jury did so.

6. Under the first ground, it is suggested that such acquittal disentitled the jury to find, for the purpose of the first count, that the accused were in possession of the imitation pistols, the possession of which was relied on as an oven act in proof of the conspiracy charge under the first count. It is suggested that the jury were so disentitled notwithstanding that, in directing an acquittal on the second count, the judge had told them that such acquittal was to be "regardless of [their] findings on the First Count."

7. Mr Macrae, acting on behalf of the applicants, frankly concedes that this is a point of some technicality.

8. In our judgment, the point is not only technical but it is a bad point. Having regard to the basis of the directed acquittal on the second count, there is no inconsistency in the verdicts.

9. As to the second ground of appeal, a complaint of material irregularity is made. The irregularity complained of is the fact that the judge permitted the trial to continue on an indictment containing both the conspiracy count and the substantive count until the conclusion of the prosecution's case at which point of time, the prosecution was put to their election.

10. The problem here is that it is difficult to see how it could be argued that such irregularity, if it be an irregularity at all, could have caused any prejudice. In our view, the applicants suffered no prejudice whatsoever.

11. Lastly, it was contended that there was insufficient evidence to warrant a count of conspiracy to rob being left to the jury. The evidence was that at 1:17 a.m. in the morning of 29 October 1992, a Mercedes Benz was stopped by the police at a road block. It was not disputed that this car to all intents and purposes belonged to a man called Hau who was at the driving seat. The two applicants were passengers in that car. There was clear evidence that when the police attempted to speak with the driver and the passengers, all three dashed out of the car and attempted to escape. When the two applicants were stopped by the police, they struggled with them. Again, it was not in dispute that both the flight and the struggle were sustained.

12. When the car was searched, a number of items were discovered, for example, a hammer, screwdrivers and pliers in a plastic bag (though there were some dispute at to whether it was in a "Maxmara" bag or a "San Wo" bag). Then, there were three beef knives, a plastic copy of a self-loading pistol, pliers and cutters, four balaclavas, labour gloves, adhesive tape, another screwdriver, mosquito repellent and a pair of number plates for a vehicle CD488 which was non-existent. Also found was another pistol with magazine and cartridges as well as masks and work gloves. In the 2nd applicant's maroon jacket was found a pair of black gloves.

13. It was part of the admitted facts that D1's fingerprints were located on the outside of the Mercedes Benz as well as the outside of the Maxmara bag. D2's fingerprints were found on one of the two number plates CD488. It was further admitted that the two number plates were false plates.

14. It was argued in this application that these facts did not entitle the jury to infer that there was a conspiracy to rob. In our view, we must consider our jury to be men and women of commonsense, and in our view, the evidence was plainly sufficient for them to come to the view that there was indeed a conspiracy to rob.

15. For the reasons we have just stated, the applications for leave to appeal against conviction are refused.