HKSAR v. CHEUNG NING YAU

CACC 133/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 133 OF 2000

(ON APPEAL FROM HCCC 252 OF 1999)

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J U D G M E N T

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Stuart-Moore Ag CHJC (giving the judgment of the Court):

Introduction

1. On 20 March 2000, the Applicant (D1 at trial) was convicted of conspiracy to murder (count 1) contrary to section 159A of the Crimes Ordinance, Cap. 200 and section 5 of the Offences Against the Person Ordinance, Cap. 212, following a trial before Gall J and a jury. He was sentenced on the following day to eighteen years' imprisonment for this offence and to a concurrent term of eight years' imprisonment on a second count, to which he had earlier pleaded guilty, of possession of arms and ammunition without a licence. The Applicant now seeks leave to appeal against his conviction and sentence on the first count.

2. Originally, the indictment contained charges against three defendants including the Applicant. A plea of guilty to possession of arms and ammunition (count 3) was accepted against Lam Ping-chuen, who was the next defendant to be named. This left Chan Pui-kan (D2) who faced a joint charge with the Applicant of the conspiracy to murder alleged in count 1 and a further charge of conspiring with the Applicant to possess arms and ammunition. In due course, D2 was acquitted on both charges.

3. The particulars of the count on which the Applicant was convicted were that he and D2, between 7 February 1999 and 15 March 1999, conspired together to murder Wong Kam-fai. As the Perfected Grounds of Appeal, advanced by Mrs Lily Yew on behalf of the Applicant, relied heavily on an alleged inconsistency between the verdicts of D1 and D2 on count 1, it is necessary to look at the evidence in some detail.

Background and prosecution's case

4. The background to the offences was somewhat complex. Nowhere in the summing up is it specifically set out although a detailed reading of the summing up makes it possible to discern much of the picture revealed by the evidence. This was a case which, perhaps more than most, called for a short overview of the case to be given by the judge in his summing up before he launched into his directions on the law. Nevertheless, as we have said, much of the story eventually emerged in the course of the summing up and we are grateful to Mr Saw, SC, on behalf of the Respondent, for his industrious approach as always, in providing a concise account from a mass of detail related to the allegation against the Applicant. In large measure we propose to adopt it.

5. The main witness in the trial was PW1. He was variously described during the evidence as Mr "X", "Ah Wei" or "Fei Wai". His evidence was that in the latter part of 1998 until February 1999, he had been employed at an investment company in Connaught Road, Central, named 'Sheung Shun' which was said to trade in London gold. His evidence was that there were three bosses of the company, two of whom were Wong Kam-fai (also referred to as "Fan Shu Kam" and "Ah Kam"), whose name appeared in count 1 as the alleged victim of the conspiracy to murder, and D2. The investment company closed down in February 1999, leaving the salaries of a number of members of staff, including PW1's, unpaid.

6. D2 departed for Shenzhen. PW1, together with other unpaid members of staff, visited him there on several occasions in February 1999. In the course of these visits, it was alleged by PW1 that a plot was hatched, at the instigation of D2, to kill Wong Kam-fai. The reason for this was that Wong Kam-fai seemingly held D2 responsible for the collapse of the company and was chasing D2 for the recovery of considerable sums of money which were said to be missing. D2 was alleged to have said "How about finding someone to kill (Wong Kam-fai) because if he (D2) did not have the money to pay back he could not go back to Hong Kong." D2 indicated that whilst he had contacts and resources to obtain a gun to give effect to this plan, he did not himself know where to find someone to use the gun to kill Wong Kam-fai. D2 suggested that PW1 could find an assassin.

7. After this first meeting in Shenzhen, PW1 returned to Hong Kong and almost immediately contacted a police sergeant (Hui Kwai-tin) with whom he was acquainted and alerted him to the nature of the proposal made by D2. Not surprisingly, Sergeant Hui then contacted other police officers and PW1 was thereafter deployed to return to Shenzhen to learn more about the scheme. He said that he returned to Shenzhen one to two days after telling Sergeant Hui of the approach to him. On this occasion, he was introduced by D2 to "Ah Yau" as someone who would obtain the gun. It would then be up to PW1 to obtain the assassin and to arrange for him to be put in possession of the gun. PW1 exchanged telephone numbers with "Ah Yau" (later identified as the Applicant).

8. PW1 then returned to Hong Kong, ostensibly to find an assassin. Arrangements were made by the police to have an undercover officer to pose as the prospective assassin and to have a controlled delivery of the gun made to him. Sergeant Hui introduced PW1 to the undercover police officer (PW4) and it was agreed that he would be called by the nickname "Tat Chai".

9. Some time elapsed, but eventually two vitally important meetings took place between the Applicant, PW1 and PW4. Both of these meetings were tape recorded by a device which had been secreted on PW4. The transcripts of the conversations recorded were exhibited during the trial.

10. The first of these meetings occurred on 24 February 2000 at the Metropole Hotel in Hong Kong at about 7.00 p.m. Those present were PW4, the Applicant, Ting Kwok-tai (a friend of the Applicant's) and PW1. The meeting was ostensibly to introduce PW4 in the guise of the proposed assassin to the Applicant and to discuss the arrangements for obtaining a gun.

11. The more salient parts of the tape-recording revealed the Applicant to be saying that he was asking a friend to reserve a gun for him and detailing how the gun would be handed over to PW1. PW1 mentioned that they could not do anything if Wong Kam-fai was not properly "handled" (killed) and that once he was handled, they would have money. The Applicant said that it did not matter what background Wong Kam-fai had if they were to take that step (to kill him). The Applicant and PW1 suggested that an extra person accompany the assassin to do the killing. As the Applicant stated the situation: "If there is one more guy to attend to the details, you'll feel more secure".

12. The second of the two controlled meetings where PW4 was fitted with a recording device occurred at about 2.50 p.m. on 15 March 1999. This was again in the Metropole Hotel. On this occasion, PW4 was present with PW1, the Applicant and Lam Ping-chuen (the defendant who, before trial, pleaded guilty to possession of arms and ammunition).

13. It was immediately after this meeting, at which the gun was produced, that the Applicant was arrested with Lam Ping-chuen. The Applicant was interviewed under caution on five occasions. Each interview was recorded on video tape. The trial judge ruled that the interviews were voluntary and admissible following a voir dire. It was after this ruling that the Applicant pleaded guilty to the possession of arms and ammunition, the subject of count 2.

Evidential differences between D1 and D2

14. D2 was arrested on his return to Hong Kong from Shenzhen and was interviewed once under caution.

15. As Mr Saw was right to point out, it is clear that so far as both meetings at the Metropole Hotel were concerned, not only was D2 not present but it appears he was in fact in Shenzhen and that, whilst inferentially he may have been referred to in the tape-recordings, it is plain that he took no part in those discussions. The only connection between D2 and these discussions was wholly dependent upon the evidence of PW1, and for this and the evidence of the earlier, unrecorded, meetings to have been sufficient to implicate D2 in the murder plot required the jury to act on the unsupported evidence of PW1. In his interview under caution, D2 had denied making an agreement to kill.

16. As Mr Saw pointed out, the evidence against the Applicant on the other hand consisted of not only the oral testimony of PW1 but also the Applicant's five interviews under caution, the evidence of PW4 (the undercover police officer) supported by the recordings of the two meetings in the Metropole Hotel and the Applicant's presence at these meetings in the hotel culminating in the gun being passed over to PW4.

17. It was submitted by Mr Saw in his written argument which he adopted, that the evidence against the Applicant (irrespective of that given by PW1) was sufficient to establish that he was a party to an agreement with his co-accused to arrange for the killing of Wong Kam-fai.

18. In relation to the five interviews of the Applicant, the first three clearly established his involvement in the acquisition of the gun. Amongst other things, the Applicant in his first interview said:

"About ten days ago, a friend called Fei Wai, whom, whom I have known for about two months and was introduced (to me) by a friend (I) have known for ten years odd. He offered, offered me ($)300,000 if he ... if (I) could find a gun for him. Well, I asked him what it was for but he did not tell me. He just said that (he) would give me ($)300,000 in any case if the task was accomplished."

19. The Applicant went on to provide considerable detail as to how he had acquired the gun and why he had done so. In the third interview, the Applicant said that "Ah Pui" had told him that "owing to some money-linked implications between him and a person called 'Ah Kam' .... he said he said he wanted to get a gun .... meant to fix him up".

20. The remaining interviews were capable of establishing the Applicant's agreement with D2 to kill Wong Kam-fai. In one passage, the Applicant was asked what he had meant in his earlier interview by the expression, regarding Ah Kam, "to fix him up". He replied that this meant:

"Ah Pui told me to find, find (a) gun for him, for him and he would find somebody to fix Ah Kam up. I think that meaning of his (saying)(") to fix (...)(") is to shoot him, with (a) gun.

Q. That is, to get, get get (a) gun ... that is, do you mean that Ah Kam ... er, can you tell me again clearly?

(Applicant): That is, Ah Pui told me to find (a) gun for him and give it to him, while Ah Pui (would) find someone else to use the gun to, perhaps to shoot, shoot Ah Kam or, that is, kill, kill him or (do) something of the like. I do not quite understand it. That's it.

Q: Hm. That is, you mean that perhaps Ah Kam, er, sorry. Perhaps Ah Pui told you to find a gun for him and then he (would) find somebody to, er, shoot Ah Kam. Do you mean that?

(Applicant): Yes."

21. This evidence merely reinforced the effect of what had been tape-recorded by PW4 (the undercover officer) when he saw the Applicant at the Metropole hotel. Clear inferences could be drawn that this was the agreement entered into by the Applicant.

22. In this context, while the Applicant was plainly identified as a speaker present at the tape-recorded conversations in the Metropole Hotel , the only specific references to D2, who was absent, came from PW1 when answering questions in re-examination. For the jury to have treated the tape-recorded conversations as being acts, so far as D2 was concerned, in furtherance of the conspiracy, they would have had to be satisfied that they could rely on PW1 to the extent that they were prepared to accept his unsupported evidence against D2.

Grounds of Appeal

23. In her first ground of appeal, Mrs Yew submitted that by acquitting D2 of conspiracy with the Applicant to murder Wong Kam-fai (and the further charge of conspiracy to procure and possess firearms), the jury had recorded a verdict against the Applicant which was inconsistent and one that no reasonable jury could properly have reached. In particular, it was argued that the jury must have rejected PW1's evidence to the effect that D2 had recruited the Applicant and PW1 to obtain a gun and an assassin on more than one occasion in Shenzhen between the dates of the alleged murder conspiracy.

24. It was Mr Saw's contention that no inconsistency existed in the jury's verdicts against the Applicant and D2. It might well have been, he submitted, that the jury was not prepared to convict D2 upon the sole basis of PW1's unsupported evidence whereas, against the Applicant, there was a very considerable body of independent evidence to establish a conspiracy on his part with D2.

25. It is well settled that the jury must separately consider the case against each conspirator. Only in exceptional cases will it be proper for a judge to direct the jury to convict or acquit both. Our attention as to this aspect of the law was drawn to three cases relating to decisions in the English Court of Appeal: R v Longman and Cribben (1981) 72 Cr App R 121 at 124; R v John Joseph Robert (1983) 78 Cr App R 41; R v Ashton [1992] Crim LR 667. The Hong Kong position is set out in section 159E(4) of the Crimes Ordinance (which makes a similar provision to section 5(8) of the Criminal Law Act 1977 which is applicable in England):

"A person shall not be entitled to be acquitted of, or to have quashed his conviction for, the offence of conspiracy for the reason only that the only other person or persons with whom he is alleged, in the indictment or charge sheet, to have entered into that conspiracy are or have been acquitted."

26. The judge gave clear directions to the jury about their approach in this respect. He set the matter out in these terms:

"You must consider the case against each accused separately. Just because you find one accused guilty, you do not say to yourself, 'Well that's the end of that, the first one's guilty, therefore the second one's guilty.' The evidence is different against each of the accused.

Now, you may say to yourself, because I am going to define conspiracy later and the definition of conspiracy is that there has to be an agreement between two people in this case, and you might say to yourself, 'Well, how can, if we find there's an agreement, how can one be guilty and the other not guilty?' But think about this.

Supposing Mr 'A' and Mr 'B' decide to rob the Hongkong Bank, Wai Fong, down in Queen's Road, and they get together some equipment but before they get any further than that they are arrested. All the equipment is found in possession of Mr 'B'. Mr 'A', when he is asked by the police says, 'I don't want to talk about this, I'm not going to say anything.' and he doesn't, ever. But Mr 'B' says, 'Yes, "A" and I met in a restaurant, we decided we'd rob the bank, we planned this, we were going to blow the main doors off with dynamite we were going to shoot the guards, we were going to do all this sort of thing and we bought all the equipment and it's in my flat.' So the police go along and they seize it.

When it comes to court what is the evidence against Mr 'A'? The evidence of the confession made by Mr 'B' is not evidence against Mr 'A', as I will be telling you in this trial. The evidence of a confession or an admission or a statement made to the police by one accused is not evidence against the other. Mr 'A' has said nothing, nothing was found in his premises. There was nothing upon which you could convict Mr 'A', but Mr 'B' admits there was an agreement between himself and Mr 'A' and he admits that he did something about it and they find the equipment. You could convict Mr 'B', because the evidence of the agreement comes from him, against himself. It is not evidence against 'A' but it is evidence against ('B').

So where there is a difference in the evidence then it is possible to convict one conspirator and not the other, but you consider it separately and you consider, in respect of the 2nd accused, the evidence separately in respect of each of the two counts on the indictment. There are two conspiracies there and they are different conspiracies.

Very often you will find that the evidence is the same. That the same piece of evidence can be used for both counts on the indictment. The same piece of evidence can be used against each of the accused. When, for example, Fei Wai gives evidence of a conversation in the presence of both accused then that will be evidence against both accused because they are both there, they could hear it. It may relate, you (may) think, to their knowledge of what was going on and their agreement to it.

Some other evidence will relate to only one accused, some evidence will relate to, in respect of the 2nd accused, only one of the two charges. So first of all consider one accused and the count in which he faces, say the 1st accused, and then you will move on to the 2nd accused take one count and then the other count and look each time at which evidence is available to you in respect of that accused and that count."

27. These directions were, in our view, perfectly correct. The facts of the present case were not dissimilar to those found in R v Ashton (above) where the Court of Appeal in England held (at page 668) when allowing the appeal that:

".... it was superficially odd that one person should be convicted of conspiracy with another while that other was acquitted of that conspiracy. But the common law rule requiring both parties to a conspiracy to be convicted or acquitted had been abrogated by Criminal Law Act 1977, s. 5(7) and (8). The crucial point was whether the evidence was substantially different against the two defendants: Longman & Cribben (1981) 72 Cr. App. R. 121, 124 per Lord Lane CJ. It therefore meant that one defendant convicted with conspiracy with another could not necessarily complain of inconsistent verdicts if the other was acquitted. If there was a material difference in the quality of the evidence against the two alleged conspirators, it would not be appropriate to give a direction requiring the same verdicts on each. The judge must evaluate the evidence (prosecution and defence) and, as in the present case, invite submissions from counsel before directing the jury. In the present case there were important differences between the cases of W and A and, seeing that A did not dispute the tape evidence, his defence was stronger than W's. The court could not accept the Crown's submission that on A's own evidence he must be guilty of conspiracy to murder and in view of the misdirection his conviction would be quashed."

28. Bearing in mind the analysis of the evidence already given, it is apparent that the evidence against the Applicant was markedly different to the evidence against D2. On the plainly feasible assumption that the jury were not prepared to act upon PW1's unsupported evidence, there was little or no other admissible evidence against D2. The evidence against the Applicant, however, was very considerable. It follows that we are satisfied that no inconsistency has emerged from the jury's verdicts such as to warrant any interference on the part of this court. Any interference on this basis could only be justified if it had been established that no reasonable jury could have arrived at different verdicts for the two alleged conspirators on count 1. As we have said, there was ample reason for the jury to have distinguished between the Applicant and D2.

29. In the context of ground 1, Mrs Yew also submitted that:

"In convicting the (Applicant) on Count1, the jury were ........

(b) rejecting the direction that the co-accused directed the (Applicant) to obtain a gun for the purpose of having Wong Kam-fai killed;

(c) rejecting that the audio tape dated the 24th February, 1999 was evidence that there was an agreement to which the co-accused was a party;

(d) accepting D2's evidence that he never agreed with anybody to kill Wong Kam-fai and that the (Applicant) lied about the involvement of the co-accused in the 4th and 5th interviews; and

(e) their verdict on the (Applicant) was against the trial judge's direction at p. 40L to p. 41L and p. 42B-F and the learned trial judge's answer to the jury's written question at p. 43P to p. 44E."

30. Dealing with first of those contentions at (b), the judge said at page 25 of the appeal bundle:

"When I say, intended that he be killed, the prosecution do not say either of them are going to do the killing, they were not going to do it personally, but it is sufficient if they intended that he be killed by someone else. Now, that makes sense. If 'A' wants to kill 'B' and he hires 'C' to do the killing then certainly 'C' is guilty of murder, but so is 'A' because he got 'C' to do it. So they do not have to actually have determined to kill him themselves. In this case the 2nd accused, if you find so that you are sure the 2nd accused directed the 1st accused so obtain a gun for the purpose of having Wong killed and the 1st accused obtained a gun, knowing it was for the purpose of killing Wong, then the only conclusion that you could draw from that is they both agreed together that Wong Kam-fai be murdered."

31. There is no criticism to be made of this direction, and for the reasons we have given earlier, it is apparent that the jury might well have acquitted D2 because of the paucity of reliable evidence against him. The judge, in the passage just cited, was not giving the jury a direction as to how they should find. He was merely pointing out to the jury how they could find if they were sure that D2 had directed D1 to obtain a gun to kill Wong Kam-fai.

32. The same comment applies with equal force to the passages referred to by Mrs Yew in (e) above where she referred to pages 40 to 43. It is unnecessary to set these out because once again the judge was not giving directions to the jury as such. At one stage, he merely pointed out that if the jury thought that the Applicant's evidence was correct, or may have been correct, he should be acquitted. A little later, in answer to a question from the jury (at page 43) he correctly stated that for either of the defendants in the jury's charge to be guilty, the jury would have to be satisfied that both were in the agreement, regardless of how many others also may have been involved.

33. We do not accept the submission in (c) above that the jury must have, as Mrs Yew put it, "rejected" the audio tape made on 24 February 1999. The judge had pointed out that for the jury to use the material contained in the tape against D2, they would have to be satisfied that the prosecution were correct in alleging that these were references to D2 at all. If the jury were not sure, they were directed not to use this material against D2. The jury were left to decide this issue bearing in mind that the references to the person alleged to be D2 were, as Mr Saw put it, somewhat oblique. Their verdict in D2's case, as Mr Saw correctly pointed out, meant no more than that the jury were not satisfied that D2's involvement had been made out. It by no means followed that the jury rejected the overall relevance of this conversation when looking at the Applicant's case and his involvement in the conspiracy.

34. There is equally no substance in Mrs Yew's contention at (d) above that the jury must have accepted D2's evidence that he was not involved in the conspiracy and that the Applicant must have lied about D2 in two of the interviews he gave with the police. These interviews were not part of the admissible evidence against D2 and it follows that the jury must have acquitted because they were unsure of D2's guilt on the evidence which was admissible against him.

35. In the light of what we have said, ground 1 fails.

36. The principal parts of ground 2 are set out in these terms:

"The learned trial judge misdirected the jury that it would be enough to convict the Applicant on the 5 interviews and one written statement of the Appellant, leaving aside the evidence of the civilian witnesses when the (Applicant) had repeatedly emphasized throughout the last two interviews that he did not promise the co-accused nor deliberately try to find the gun for him to kill Wong Kam-fai and that he had nothing to do with the personal grudges between the co-accused and Wong Kam-fai."

37. This summary of what the judge had said to the jury is, as Mr Saw suggested, a little inaccurately set out in the ground of appeal. In fact, the judge had said that if the jury concluded from D1's video interviews that he had entered into the agreement alleged in count 1 with D2, this was enough evidence on which to convict. In saying this, the judge was pointing out the obvious and his statement was perfectly sensible both in law and in fact.

38. There was a further complaint in ground 2 which seems to us to carry this application no further and we do not consider it is necessary to deal with it. Indeed, this was hardly pressed by Mrs Yew in the course of argument. We reject ground 2.

39. In ground 3, it was submitted that:

"By reason of the misdirection in ground 2, the judge misdirected the jury when he directed the jury that only the co-accused's case would be very reliant upon the evidence of PW1 when the (Applicant's) case was also very reliant upon the evidence of PW1."

40. Again, by looking at the passage complained about, it is plain that the judge was doing no more than emphasising that the case against D2, unlike the Applicant's, was wholly dependent on the jury's acceptance of PW1's evidence. An important feature of D2's case, of which the jury was well aware, was that D2 had remained throughout in Shenzhen and had attended neither of the Hong Kong meetings where the gun was discussed and eventually produced. Ultimately, in his interview, D2 had distanced himself from the whole affair.

41. There is no merit in this ground.

42. The last of the complaints about the summing up, to be found in ground 4, was that the judge's directions were confusing because he had on a number of occasions mixed up the prosecution witnesses and the two defendants on trial. Whilst it is true that the judge's concentration does unfortunately appear to have lapsed a number of times, the errors were immediately pointed out by the judge in order to cancel out their effect and we do not find any real substance in this ground.

Conclusion

43. The evidence against the Applicant was very strong. There is nothing in any of the matters raised before us which suggests that the verdict was unsafe or unsatisfactory and, accordingly, the application is dismissed.

Sentence

44. The Applicant has invited the court to look again at his sentence because he suggested that this was too heavy. We consider that this was a perfectly proper sentence and this application is also dismissed.