R. v. KONG WING-FUNG AND OTHERS

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J U D G M E N T

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Hon. Yang, C.J.:

1. This is the judgment of the Court.

2. The first (D1), second (D2), third (D3) and fourth (D4) applicants seek leave to appeal against their conviction of robbery.

3. The fifth (D5) applicant seeks leave to appeal against his conviction of handling stolen goods.

4. The first four applicants were each sentenced to 10 years' imprisonment for robbery. D3 and D4 apply for leave to appeal against sentence.

5. D5 was sentenced to 5 ¹/₂ years' imprisonment and also seeks leave to appeal against his sentence.

6. It is not disputed that at about 10.30 a.m. on the 22nd May 1989, a number of intruders entered the Sea Hill Jewellery Company at 386 Hennessy Road, Wanchai and robbed the company of a quantity of gold ornaments worth HK$487,816. A proprietress of the company said in her evidence that it was D3, an employee, who called out "Keep still". She also saw a man with a gun in the middle of the shop premises telling the employees there to put the gold ornaments into leather bags. There was another man with a beef-knife which he pointed at the proprietress. In the robbery, two guns and a knife were used. The trial judge assumed the guns to be imitation firearms.

7. It was also the proprietress' evidence that D3 stood near her and seemed to take things out of the drawers more quickly than the company's manager.

8. None of the other employees there made any identification.

9. The only evidence of any importance against D1, D2, D3 and D4 was their cautioned statements.

10. The learned trial judge in his direction to the jury stressed that as far as the case against Dl and D2 was concerned, "if you believe the cautioned statements, you do not need any other evidence to convict them." The case "hangs or falls on the police evidence" as to how the cautioned statements were taken.

11. The judge commented that D3 was a little quicker than the other employees in putting the gold ornaments into the bag, and that it could be explained by the fact that he was more frightened than the others rather than that he was guilty of the robbery.

12. The judge made it plain that the jury could only convict D1, D2, D3 and D4 of robbery if they were sure each of their cautioned statements was true as it related to the maker. He made it plain that the statements "are evidence only for or against the person who made them".

13. The admissibility of the cautioned statements was contested on the ground that they had been obtained through police assaults, threats and inducements, and in any event they were fabricatioins and not made by the first four applicants. The judge heard evidence in voir dire proceedings and admitted all the cautioned statements. When evidence was given on the general issue, the applicants again gave evidence of police assaults, threats and inducements. They also said the statements were fabricated by the police.

14. Each applicant's cautioned statement made clear admission of having taken part in the robbery.

15. Mr. Mullick acting for D1, D2 and D3 submits that the judge erred in his summing-up. The passages in the summing-up complained of are:

"Members of the jury, as I think I have told you at the beginning of this case a long time ago now, your main task is to decide who is telling the truth in this case."

(Page 1, letters E to G).

"Now, where the evidence is in dispute, try to recall the demeanour of the witness in question and ask yourself do you think he is telling the truth, or is he telling the truth about some matters and not about others." (Page 2, letters J to L).

"This is either a shocking conspiracy by the whole section of the Regional Crime Unit to implicate innocent men against whom they have no evidence, or the defendants." (Page 11, letters G to I).

16. It is further argued that the judge failed to direct the jury on how they should approach the evidence of the applicants, that by the above-quoted passages the judge suggested to the jury that the applicants had the onus to satisfy them that they were telling the truth, and that a direction in accordance with the suggestions given in Broadhurst v The Queen [1964] AC 441, at 457 should have been given, if the jury should find that the applicants were lying: such direction was not given.

17. We do not think there is any substance in these grounds of appeal. The passages complained of must be read together with other passages in the summing-up, in particular page 2Q to page 3J, which reads:

"Now, members of the jury, it is a cardinal principle of English law and of Hong Kong law, as counsel have told you, that a man is presumed to be innocent until he is proved to be guilty. It is the prosecution that brings the case and it is the prosecution that must prove guilt.

    In order to prove a defendant guilty, the prosecution has to do more than merely establish that there is a suspicious situation involving him, or that he is probably guilty. That is not enough. The prosecution must satisfy you on the evidence so that you are sure that. he is guilty, and there is no burden on the defendant to give evidence or to prove anything.

    If, having considered all the evidence, you are left with a reasonable doubt, then you must acquit him, not as a matter of generosity on your part, but because the prosecution will have failed to prove the case."

18. Read in its proper context, the complaints about the passages cited cannot be supported.

19. Mr. Mullick however, by a supplementary ground of appeal, contends that certain passages in Crown Counsel's address to the jury were erroneous, and the judge erred in failing to direct the jury to ignore them or to explain to the jury that the police witnesses are not in a special category. The passages in question are:

    "Now, members of the jury, pause there for the moment. Do you believe a team of police officers would conspire together to frame up a person where there is no real evidence against him, not one officer framed him up, not two officers framed him up or beaten him up in the office, but a team of police officers, as also suggested by the other defendants.

    Now, members of the jury, police officers first of all knew very well the consequences. Secondly, do you think they would risk their career, their family, their future especially this allegation is about a team of officers. Would they not be afraid that any of these officers would leak out some of the information? Now, members of the jury, I suggest to you that was totally unrealistic."

And -

    "In this case, all the defendants suggested fabrication. Members of the jury, well, we may, from time to time, hear news about crimes were committed and it is always necessary for some agents, some agents and some institutions, to protect the lives and properties of the law-abiding citizens.

    Now who are these people delegated with this task? Members of the jury, they are the police. Do you believe, members of the jury that a team of police officers including chief inspectors, inspectors, sergeants, PCs, all conspired together to fabricate evidence against these defendants? Members of the jury, it is a question for you."

20. We find nothing in those passages that causes us concern. It seems to us these are legitimate observations for an advocate to make on behalf of the prosecution.

21. On the issue as to whether a Broadhurst direction was necessary, we are of the view that here the jury must have been satisfied that the applicants were guilty on the basis of their cautioned statements and not on any lies they might have told about the circumstances of the taking of the statements. This is not a case where lies were relied on as being probative of guilt. We do not think a Broadhurst direction was necessary.

22. The applications for leave to appeal by D1, D2 and D3 fail.

23. D4 is in a somewhat different category. His four grounds of appeal read:

1. That the learned trial judge erred in law in his summing-up in directing the jury that the Appellant, who was not present at the scene of the robbery, could in the circumstances of the case, be guilty of the offence or robbery as an accessory if he encouraged or assisted the principals who physically committed the robbery and intended do so.

2. That the verdict of the jury is unsafe and unsatisfactory because the learned trial judge failed in his summing-up to distinguish the relevant law relating to the case against the third defendant (who was present at the robbery) from the law relating to the Appellant.

3. That the verdict of the jury is unsafe and unsatisfactory because the learned trial judge misdirected the jury in his summing-up that the Appellant had admitted his "complicity" in the crime in his cautioned statement (Ex. P73) by admitting therein the doing of an act after the robbery was over.

4. That the verdict or the jury is unsafe and unsatisfactory because there was no evidence that the Appellant counselled or procured the offence of robbery with which he was charged.

24. D4 was an employee of the Sea Hill Jewellery Company. He was, quite by chance, away from the jewellery shop at the time of the robbery, he having gone out to buy some medicated adhesive tape for a co-worker who had cut his hand. The only evidence against him was his three cautioned statements.

25. In his first cautioned statement (Ex. P72), he described that, on an occasion some one or two weeks prior to the robbery, he was told by D3 that the Sea Hill was to be robbed but no date was mentioned. D3 wanted him to help the robbers by getting the gold ornaments for them more quickly.

26. In his third statement (Ex. P74), he said:

"After alighting from the vehicle, CHAN Chiu-keun.g said to me, "The group of persons of Fei Chuen want to rob Sea Hill Jewellery Co. Ltd. By the time when and if they come, you assist by getting them more gold (ornaments) more quickly. (deletion) They would give some (gold ornaments) back to us afterwards. But, I do not know when they will come either." After he finished speaked (sic) to me, I indicated to him that (I) understood. We then walked together down to the Mass Transit Railways Station and we took Mass Transit Train back to our homes separately."

27. He continued to say that at meetings'with the robbers prior to the robbery, he was told they would come at the end of May but not on the 24th or the 25th. He was told "the time would come when bags would be thrown to you", and "you then put the gold (ornaments) into the bag(s) as quick as possible". He nodded to indicate he understood. Then he said, "I had asked CHAN Chiu-keung when they would come to rob. CHAN Chiu-keung said he did not know either but I was told to hurry up and to get them more gold ornaments at the time when they came to rob. There and then I nodded to indicate that (I) assented."

28. In support of D4's first and second grounds of appeal, our attention was drawn to the judge's summing-up (at: page 3M to page 41):

    "But someone who encourages or assists another person to commit a crime may also be guilty of that crime as an accessory, even if that person is not present at the actual scene of the crime, as in the case of the 4th defendant.

    The Crown must prove words or acts by the 3rd and the 4th defendant before or during the robbery but not after, encouraging or assisting the alleged robbers to commit the crime. It is not necessary that it should prove that the robbers in fact were.influenced by the defendant's acts or words, but the robbers must be aware that they have the defendant's encouragement or approval to commit the robbery. The message must reach them, in other words.

    It follows that that defendant must know that the robbery is in the contemplation of the robbers. It is very important that you should bear in mind that a defendant can only be guilty as an accessory if he intends that his words or his actions should have the effect of encouraging or assisting the robbers.

    Finally, such words or acts must be reasonably capable of being viewed as tending to encourage or assist the robbery. In other words, tacit acquiescence is not enough."

29. After the summing-up, the judge made a further direction (at page 109B-L):

    "The Crown must prove the following: that the defendant agreed to assist in the robbery, that he expressed his agreement either by words or conduct, and that he thereby encouraged the robbers. I propose to repeat what I said before by way of explanation, that the Crown must prove words or acts by the defendants before or during the robbery encouraging or assisting the alleged robbers to commit the crime. That is not necessary to prove that the robbers were influenced by the defendants' acts or words, but they must be aware that they have the defendants' encouragement or approval to commit the robbery. It follows that the defendant must know that the robbery is in the contemplation of the robbers and that he intends that his words or actions should have the effect of encouraging or assisting the robbers."

30. Mr. Westbrook argues on behalf of D4 that counsellors and procurers are different from aiders and abettors, the former being absent from the scene of the crime at the time the crime was committed whilst the latter were actually or constructively present. Here the judge treated D3 (who was physically present) and D4 (who was not) as if they belonged to the same category. Upon the evidence, D4 could not be found guilty of aiding and abetting, only of counselling and procuring if at all. By failing to explain the difference of these two types of accessories, the jury was confused.

31. Counsel for the Crown Mr. Bruce concedes that it would have been much better for the judge to embark upon an analysis of the different roles played by the different kinds of accessories, but he submits that the direction was nevertheless correct. He refers to Archbold (1992 ed, Vol. 2, para. 18-3, at page 2023), where aiders and abettors are defined as those who are present at the commission of the offence, and aid and abet its commission. However "in some modern cases the phrase has been used in a wider sense so as to include those who are referred to in this chapter as counsellors or procurers". National Coal Board v Gamble [1959] 1 QB 11 was referred to. In that case, Devlin J. (as he then was) referred to a party who could not have been at the commission of an offence in these terms: "... if he does so knowingly and with intent to aid, he abets it as well and is therefore guilty of aiding and abetting" (at page 20). It is therefore in the wider sense that Devlin J. used the word "abets".

32. Archbold (paras. 18-18 and 18-20, at pages 2031-2033) states that the word "counselling" must be given its ordinary meaning - "advise", "solicit". There is no implication in the word itself that there should be any causal connection between the counselling and the offence. It is not necessary to prove that the counselling was a substantial cause of the commission of the offence. At common law an accessory before the fact (counsellor and procurer) was one who, though absent at the time of the felony committed, did yet procure, counsel, command or abet another to commit a felony. To procure means to produce by endeavour. A person procures a thing by setting out to see that it happens and taking the appropriate steps to produce the happening. A person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two and even though there is no attempt at agreement or discussion as to the form which the offence should take. An offence cannot, however, be said to have been procured unless there is causal link between what the alleged procurer did and the commission of the offence. The procurement may also be direct, by hire, counsel, command, or conspiracy; or indirect, by evincing an express liking, approbation, or assent to anther's criminal design of committing an offence. One may counsel and procure another in the commission of an offence by helping to set the stage even before the victim has been found. If a man helps another in preparation for crimes of a certain nature with the intention that the other shall commit crimes of a certain nature, he may counsel and procure those crimes when they come to be committed.

33. On D4's own admission in his cautioned statement, he "assented" to get the robbers more gold "as quick as possible" when they came to rob. It certainly falls within the traditional meaning of counselling and procuring. It also falls within the meaning of abetting in the sense Devlin J. used it. Even if the judge had embarked upon an anslysis of the different concepts of counselling and procuring on the one hand and aiding and abetting on the other, the verdict of the jury would have been the same.

34. There is in our judgment nothing in D4's Grounds 1 and 2.

35. We now come to his Ground 3. In his cautioned statement (Ex. P73), D4 admitted to putting away some gold ornaments underneath a carton on the floor within the Sea Hill Jewelery Company. This he did on 22nd May on the instruction of D3, because D3 wanted to make it "look as if those four bracelets and two necklaces were taken away by the robbers so that he might take them away". The judge's direction to the jury on this evidence was that in this statement, D4 admitted "complicity in the crime by hiding the gold after he returned to the shop" (page 96P). He then went on to tell the jury (at page 97K-Q):

    "The 4th defendant admitted that he obeyed the 3rd defendant's instruction to hide some ornaments after the robbery in the statement that is admitted if you accept it, but it is not evidence that he took part in the robbery. The robbery was now over. Although he may have been helping to steal, he was not participating in the use or the threat of force, but this admission is consistent with his earlier admission in the statement that he took part in planning-the robbery during which he and the 3rd defendant were to be the inside men."

36. Mr. Bruce fairly concedes that the reference to complicity is wrong, and it was not cured by the passage cited immediately above. No miscarriage of justice however could have occurred. Given the jury's acceptance of D4's cautioned statement, their verdict was the only one that could have been given. We cannot say that the jury's verdict, as Ground 4 seeks to argue, was unsafe and unsatisfactory.

37. D4's application for leave to appeal against conviction also fails.

38. We now come to D5, who was convicted of handling. His first ground of appeal complains about the same three passages in the summing-up criticized by D1. It is argued that by those passages it was suggested to the jury that there was an onus on D5 to satisfy them he was telling the truth. For reasons already given in respect of Dl's application, we do not think there is anything in this ground of appeal.

39. D5's second ground of appeal argues that, in relation to D5's cautioned statement (Ex. P48), the judge should direct the jury that there was no onus on D5 to satisfy the jury that he was telling the truth. It is further argued that the judge should have given a Broadhurst direction. Again for reasons given in respect of Dl's application, this ground cannot succeed.

40. Apart from D5's cautioned statement, there was also the evidence of Chan Ka-ming whom the judge, in his summing-up, described as a man with "an obvious motive to lie and to protect his own scheme (skin?), and that is human nature". The only evidence that could corroborate Chan Ka-ming was D5's cautioned statement. The statement referred to the occasion when D5 handed some of the stolen property to Chan Ka-ming for safe keeping. The judge in directing the jury told them that that statement: was a complete confession to the handling charge, and if they found it to be so, they "need not bother about Chan Ka-ming's evidence". Thus it was the cautioned statement that was crucial in the case against D5, and the jury in finding him guilty must have accepted the truth of the statement.

41. D5's application fails.

42. We dismiss the applications by D1, 2, 3, 4 and 5 for leave to appeal against conviction. We now come to the applications by D3, 4 and 5 for leave to appeal against sentence. D3 acting in person asked for mercy, saying that his wife had divorced him, leaving his four-year old daughter to be cared for by his aging father. He also said he took no active part in the robbery, and referred to a number of robbery cases in which the sentences were lighter.

43. According to his own statement, D3 had prior knowledge that the jewellery shop he worked at was to be robbed, and he was asked to take the gold from the robbers to be smelted. He was there when the robbers arrived and he assisted them in putting the gold ornaments into their bags.

44. The sentence of 10 years' imprisonment is not a day too long.

45. D4's complaint against his sentence is that his role could be distinguished from that of D1, 2 and 3. He was a pure opportunist and was guilty of nothing more than the bare act of counselling and procuring. He was not one of the original group of robbers and was brought in by D3 later. His role was confined to nodding his assent to hand over the gold quickly when the robbers arrived. Against that, it must be remembered he was an employee. In our view a distinction should be made between the part played by D4 and the others. We think a sentence of 6 years' imprisonment proper.

46. In passing sentence on D5 the judge commented that the robbery could not have succeeded without D5. With respect, we think this is an overstatement - and indeed the robbery was committed without him. In the light of the relatively minor role he played, we think an appropriate sentence for D5 is 4 years' imprisonment.

47. The application of D3 for leave to appeal against sentence is dismissed. The applications of D4 and D5 are allowed; we treat the hearing as hearing of the appeals against sentence and allow their appeals. D4's sentence is accordingly reduced from 10 years' to 6 years' imprisonment; D5's sentence is reduced from 5 ¹/₂  years' to 4 years' imprisonment.