THE QUEEN v. HO WAI BIU AND OTHERS

IN THE COURT OF APPEAL

1995, No. 512(E)
(Criminal)

THE QUEEN

v

HO WAI-BIU,
LAM WAH-MAN and
SZE TING-WAH

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court):

1. On 12 July 1995 after a lengthy trial the three applicants Ho Wai-biu (D1), Lam Wah-man (D2) and Sze Ting-wah (D3) were each convicted of conspiracy to rob before Deputy Judge Bokhary (as she then was) and a jury. Each was later sentenced to 9 years imprisonment. Each now applies for leave to appeal against his conviction and sentence.

The facts

2. This trial was the last of a series tried by this judge involving 9 accused and a number of armed robberies and conspiracies to rob. These applicants were charged and convicted of this one offence – a conspiracy in December 1993 with Ho Chun-wai to rob a house at No. 11, Tong Yan Sun Tsuen Road, Yuen Long.

3. The investigation began on 15 December 1993 with a police raid on a flat in Pau Chung Street, Tokwawan where guns and ammunition were found. Inside were six men including Chan Kwan-mau who gave evidence as an accomplice against the applicants. D1 was on the staircase outside the flat. He said that he was going to the flat to collect rent and was arrested. Later, his wife who was the tenant of the flat arrived. She also was arrested.

4. The investigations which followed revealed no evidence to implicate these applicants – or the 1st applicant’s wife – in the possession of the fire arms but the applicants admitted being parties to an agreement to rob the occupant of a house near Yuen Long specified in the indictment. The suggestion was that one of the applicants had knowledge of the house and the wealth of its occupant following a previous robbery and on 13 December the applicants and others agreed to carry out a further robbery there. Others were brought into the agreement and D1 approached Chan Kwan-mau to join. During the planning a visit was made to the house. Guns were to be used. In the event D1 and the others in the flat were arrested before the offence was carried out.

The evidence

8. D1 and D3 called in support of their allegations of assault evidence that each of them had complained of assault when brought before the magistrate. Also, D1 called Doctor Noom who examined him on arrival at the Lai Chi Kok Reception Centre on 23 December 1993. D3 called Doctor Myint Thien from the Pik Uk Correctional Institution who examined D3, also on 23 December 1993. Each doctor gave evidence of complaints and relatively minor bruising together with a small abrasion in D3’s case.

9. D1’s wife was arrested after she arrived at the Pau Chung Street flat. She was held from 15 December until 17 December. D1 complained that the police obtained his confession by suggesting that if he did not co-operate, she would be charged; and if he did co-operate, she would be released to look after their children. Counsel suggested that she was held for those two days in order to obtain D1’s co-operation.

The applications of D1 and D3 on conviction

10. Mr Michael Gerber (Mr Dickson Li with him) submits that the judge ought not to have admitted into evidence the confession statements.  He makes a number of points in support. He suggests that the judge did not give sufficient consideration to the various matters advanced – in particular in D1’s case the detention of his wife. In the case of both, the medical evidence called in support of the assaults and the evidence of Chan Kwan-mau concerning his treatment. This was shown, he says, by the failure of the judge to give reasons when admitting the statements and when she was asked later to reconsider her ruling.

11. These matters can be dealt with briefly.  As has been said on many previous occasions – it is now firmly settled law and practice – that in making a ruling upon the admissibility of confession statements after a voir dire,  it is not incumbent upon a judge to give reasons for his ruling. Further, this Court will not criticise a judge for not giving his reasons. The same rule applies when a judge is invited to reconsider his ruling in the light of evidence which emerges in the course of a trial.

12. All the matters raised before this Court were the subject of evidence and careful submissions to the judge at the hearing. Far from overlooking any of the matters put before her, there is every indication that the judge carefully considered them.

13. Both these applicants complain of a passage in the summing up in which the judge gives strong directions about a submission made to the jury by Mr Kelly acting for D3. It is necessary to set out the whole passage for it to be understood:

“In his final speech, Mr Kelly for the 3rd accused said that whenever there is evidence of injuries, the prosecution has a positive duty to prove that those injuries were not sustained as the result of police assault. If by that Mr Kelly meant what I have just been telling you. Then of course he is right.

The prosecution must prove beyond reasonable doubt that the confessions which it relies upon were made and are true. That is exactly what the prosecution says it has done in this case: on the evidence of the officers concerned, whose evidence you are entitled to accept if you see fit. But none of that means that the prosecution must prove that the injuries found on any accused could not have been caused by the sort of assault which he alleges. That is not the law. Nor is it common sense.

If that were the law, then you would end up with a situation like this. A man commits a crime. Then he is arrested by the police. Thinking that the police know about all of it anyway, he makes a true confession to that crime. Later, he comes to realise that he could have gotten away with it if only he had kept quiet. So he retracts his confession, and alleges that the police had beaten it out of him. Then he inflicts some self-injury of the kind which would be produced by the sort of assault which he alleges against the police.

So just like that he would have made it impossible for the prosecution to rely on his true confession. And, guilty though he is, he walks free. Plainly, that is not common sense. And, as I have directed you, it is simply not the law.”

It is submitted that the prejudicial effect of this passage was such that the jury ignored the medical evidence supporting the evidence of both D1 and D3.

14. Undoubtedly this was a strong direction but there are occasions after counsel makes a submission to the jury which is wrong in law and misleading that a strong direction is required. Such a direction was required in this case. It was powerful but it was correct in law and cannot be said in these circumstances to be either prejudicial or unfair.

15. Mr Gerber then submits that the judge’s direction to the jury did not make it clear that a mere intention or plan to commit the offence was insufficient to establish a conspiracy. With respect, this is not borne out by an examination of all the directions which were given. For example, the judge began by telling the jury what in law was meant by conspiracy:

“To perform your duty in this case, what you need to know is that an agreement between two or more persons to commit a crime amounts to a conspiracy.”

She continued to explain:

“As you know, the robbery which it is charged that the accused had conspired to commit never took place. That does not matter. What matters is whether there was the agreement. The offence is the agreement. Of course, mere knowledge on the part of an accused that a robbery was being planned is not enough. Nor is a mere intention or desire that robbery be committed. For an accused to be guilty, he must have agreed with one or more of the persons named as a conspirator in the count to commit the robbery mentioned in the count.”

Later, dealing with the position of a person who joins a conspiracy already made between others, she explained:

“If he joins later on intending to carry out the same crime, combining with the others, then he becomes a conspirator from that moment.”

In the view of this Court, these directions were both clear and correct.

16. The final point made by Mr Gerber – with which it is necessary to deal – is the comment made by the judge about the cautioned statements made by these two applicants. She said at p39A–L:

“The officers concerned readily accepted that they had not cautioned the 1st or 3rd accused in respect of conspiracy.

You may take that into account as you see fit. But do remember that the 1st and 3rd accused’s allegations are not that they admitted conspiracy because, not having been cautioned in respect of it, they did not appreciate that they did not have to do so. Rather, their allegations are of improper means being used to get written statements from them. So you may think that the absence of cautions here do not matter.

You will remember that you are not here to judge police procedure, and that what you are here for is to try this case as a tribunal of fact, doing your duty as such.”

The particular phrase with which Mr Gerber takes exception is:

“that the absence of cautions here do not matter”. 

Taken in isolation it is not possible to support a direction that a caution to an accused person does not matter. Here, however, the judge was directing the jury on the relevance of the absence of caution to the applicants’ confessions. The judge was right to say that the real issue in the case was whether the confessions had been made voluntarily and therefore could be given weight. Neither applicant complained that he confessed because he had not been given a caution. Properly regarded therefore there is nothing in this point even if there could have been a happier choice of words.

The application of D2 on conviction

17. D2 appears in person. He first complains that part of his cautioned statements were blanked out and this caused unfairness to him. On the contrary, this was done on counsel’s application in order to achieve a fair trial. There is nothing in the point.

18. Similarly, he submits that the judge ought to have replaced the jury because some jurors were dozing. Nothing has been identified in this respect which could possibly form an arguable ground of appeal.

19. Next, he submits that his statements ought to have been excluded from evidence on the grounds of duress and inducement. These matters were considered by the judge and ruled upon and were fully in front of the jury for their consideration.

20. There is no substance in any point he raises.

Conclusion

21. For the reasons we have set out above, the applications on leave to appeal against the convictions are refused.

The applications on sentence

22. The three applicants each contends that the sentence passed upon him was manifestly excessive having regard to all the circumstances and in particular that this agreed and planned robbery was never carried out. Additionally, D3 relies upon his age – only 19 at the time of the offence – and D2 seeks to rely upon the assistance which he had given to the police in the past and the cooperation about this offence after he was arrested.

23. The judge refused to draw any distinction between the respective roles of each of the applicants. The robbery was serious. She described it as follows.

“The robbery which you conspired to commit was a well-planned one. The premises were reconnoitered. You were after a large sum of money. The execution of the planned robbery was to be ruthless and it involved a number of men. It involved domestic premises; and it involved entering such premises to commit robbery, not just burglary, but robbery.”

24. On the evidence, D2’s activity as a police informer was not something upon which he could seek to rely. A police officer was asked about the matter and he said that during 1993, the police no longer had any contact with this applicant and the information which he had previously given was shown to be incorrect when the police checked it.

25. Having fought the case, the assistance given to the police about the present offence was not a matter upon which he could seriously rely.

26. The consequence is that 9 years imprisonment after trial for this serious offence was neither wrong in principle nor manifestly excessive. D3’s sentence was made partially consecutive with an earlier sentence of 6 years passed upon him for three counts of robbery, one count of false imprisonment and one of taking a conveyance without authority. It cannot be said that the total sentence passed was itself wrong in principle or manifestly excessive. In these circumstances, the applications for leave to appeal against sentence are refused.