THE QUEEN v. LEE SHU FAI AND ANOTHER

IN THE COUFT OF APPEAL

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J U D G M E N T

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Kempster, J.A.

1. On 2nd December 1987 on the verdict to the jury Deputy Judge Daniell convicted Lee Shu Fai and Cheung Chi of robbery. Against those conviction both seek leave to appeal.

2. The robbery in question took place on 15th May 1987 in the Larry Jewellery Company shop in the Landmark. There was no issue at trial but that such a robbery had occurred. It was a robbery which involved the use of arms, the prizing open of a showcase with a chisel and the theft of a quantity of jewellery valued at HK$3m.

3. Insofar as Lee Shu Fai is concerned, by amended grounds of appeal settled by leading counsel, nine points are taken. The first, on which we have not been addressed at any length, is that the trial judge failed adequately to put the defence. This ground we reject without hesitation. Although neither applicant elected to give evidence the judge, in his summing-up, told the jury that what was in issue was their participation in the crime and that their case was that, in giving evidence, the accomplice witnesses had substituted the applicants for the real villains. He said:

"The first defendant (Lee), although he did not go into the witness-box has made 'his defence very plain to you through his counsel ... and what it amounts to is that Ngai and Sui Kuen Kuen (the accomplice witnesses) had conspired together falsely to name him as a party to the robbery in order to obtain the advantages given under ... immunities".

The judge pointed out, to the advantage of the first applicant, that after the robbery he had not returned to the accomplices flat to examine the stolen jewellery or to discuss either its disposal or his share in the proceeds. He repeated the nature of the defence on several occasions using such terminology as.

"... it is said that the. accomplices are shielding, the true robbers and substituting the names of these two defendants .... in a nutshell ... neither took part in the robbery .... they were the victims of this wicked conspiracy of Ngai and Kuen Kuen. lying to you and doing this in order to gain themselves, in the case of Ngai, reduction in.sentence and in the case of Kuen Kuen the chance to have permanent residence status in Hong, Kong".

4. The second ground of appeal advanced by Lee shu Fai was that the case against him depended on these accomplices whose evidence was entirely uncorroborated. This is accented and was expressly pointed out to the jury by the judge.

5. The third ground was that, although the trial judge did warn the jury against the danger of acting on the uncorroborated evidence of accomplices, at a particular stage in his summing-up he suggested that their evidence was supported by evidence from the staff of the shop without at the same time pointing out that this could not amount to corroboration as it did not implicate either of the applicants. What the judge said was that

"... much of what Ngai told you was indeed supported by the evidence of the staff members of the shop. You may well think that so far as Ngai's description as to how the robbery was carried out his evidence is quite reliable".

He did not suggest that that evidence in any way tended to implicate either applicant. Immediately after he made the remarks inpugned he continued

"What is very much in issue and it is for you to determine is whether the first and second defendants took part in that crime ....

This passage came very soon after the judge had advised the jury without qualification that there was no corroboration in the sense of evidence implicating either accused in the crime. We are therefore satisfied that there is no substance in this ground of appeal either.

6. The fourth ground is that the trial judge wrongly suggested. That the number "1119" of a particular pager was put to Sui Kuen Kuen, one of the accomplices, when she made no mention in her evidence of any pager number. The significance of this pager, which appears to have been the subject of far ranging inquiry, was that it was said by the accomplices to have been left in the flat which they shared by the first applicant on the morning of the robbery. To some extent it constituted real evidence that he had been on those premises. In our view the identification number of the pager was neither here nor there. What mattered, if thought to have had any significance in the deliberations of the jury,' was whether a pager had been left in that flat by the first applicant at the relevant time.

7. Ground five

"Although'' the learned trial judge said he would not repeat all of the evidence but that the jury should consider all the evidence it was however incumbent upon him to refer to the evidence of Tung Ah 'Jab (the landlord of the premises in which the flat occupied by the accomplices was situated and a man of advanced years) to the effect that he seldom saw Sui Kuen Kuen which to some extent contradicted (her) evidence .... "

When dealing with this point we also take into account the long series of discrepancies in the evidence called before the jury on behalf of the Crown upon which the second applicant, personally, has elaborated. He has referred, for example, to differences as to whether, after the robbery, the proceeds, already placed in a shoe box, ultimately found their way into a plastic wardrobe or into a space under a mahjong table; whether one or other applicant, having regard to his or her physical position in the flat, could have seen what was recounted or whether on particular occasion the female accomplice was wearing a nightdress or some other attire. There is no doubt in our minds that the second accomplice has studied the record with care and, indeed, discovered a number of instances in which the recollection of witnesses differed, But complete consistency would give rise to greater suspicion and neither in this regard nor as regards Tung Ah Wah do we think it was incumbent upon Deputy Judge Daniell to adopt the sort of summing-up unhappily familiar in other jurisdictions where the judge merely recites his notes of the evidence without discrimination before giving directions as to the law and inviting the jury to consider their verdict. The summing-up in the instant case was, if we may respectfully say, so, lucid, economic and in law impeccable.

8. The sixth ground relied upon by the first applicant was that the trial judge failed to remind the jury of the evidence of a particular constable that he only found men's clothing, in the accomplices' flat. There is no doubt that he gave such evidence which as the second applicant pointed out to us, is surprising since the female accomplice said she kept all her clothes there too. Again we cannot think that this is a matter of which the judge was required specifically to remind the jury or one to which they would have failed to attach such significance as was appropriate in consequence. No more do we think, turning now to ground seven, that it was incumbent upon the judge to point out that in at least two instances the, accomplice Sui Kuen Kuen had admitted to having told lies. , He had made it clear to the jury beyond a peradventure that both accomplices were' of bad character and having their own interests to serve and that their testimony should be regarded with the gravest suspicion.

9. Finally we come_. to ground nine which has given rise to rather more protracted argument before us. it reads :

"Ngai Shun Hung and Sui Kuen Kuen both gave evidence against one Chan Wing Chi in case no 135 of 1987 for robbery. Chan Wing Chi was acquitted by the jury, which means that' Ngai and Siu were disbelieved. Counsel for the applicant (and the ground is. germane to and adopted by the second applicant) failed to put this to the witnesses which would have affected their credibility".

Assuming the facts stated the question immediately arises as to whether such evidence is admissible. Prima facie what opinion any third party, whether a member of another jury another judge, formed about the reliability of a witness when that witness was called in a trial with which the particular jury is not concerned is, like the view of the presiding judge, irrelevant. Subject to evidence as to character it is for the particular jury to assess the credibility of witnesses called before it. Insofar, however, as that approach has been eroded by authority we are satisfied that this was a matter for the respective counsel acting for the applicants to consider and, having done so, to take such course as seemed appropriate. Both were, we are told, alive to the material facts. As this court explained in R v. Chung Chi Ming⁽¹⁾ to constitute a ground for appeal the failure by counsel to ask a particular question or to cross-examine in a particular manner must amount to a mistake so radical as to give rise to a miscarriage of justice. O'Connor LJ spoke to like effect in a note of R v. Swain ⁽²⁾ at pp 109-110. This was not such a mistake.

10. Before parting from the topic we would refer to three decisions of the English Court of Appeal. The first is R v Thorne F Others⁽³⁾ where the decision of Lawton and Cumming-Bruce LJJ and Griffiths J was to this effect

"The fact that an informer may have given evidence for the prosecution against other accused in other cases which did not lead to convictions does not entitle the defence to cross-examine a police officer about those verdicts of acquittal to .... that he was a liar or that the pattern of acquittals in the other case undermined the informer's credibility".

But, as Mr. Howard for the first applicant has urged on us, the law does not stand still, So we will move on to R v Doosti⁽⁴⁾. The members of the Court were Watkins LJ, Ewbank J and Sir Ralph Kilner Brown. Giving their judgment Ewbank J said at p 184 :

"Even if the appellant had been acquitted on all the charges in the first trial, it would not follow that Sergeant Muth had been lying or necessarily was unreliable. The acquittal was consistent with the jury not being sure whether the case had been made out.

Acordinly, in our judgment, the cross-examination embarked on by counsel for the defence was not directed to any relevant issue and the judge was right to stop it".

In the instant case, it should be observed, no application was made to cross-examine to the effect suggested' and no adverse ruling is challenged.

11. Finally we come to what must be the linchpin of the applicants' authorities in this context, R v Gary Cooke⁽⁵⁾, where again a question arose as to the propriety of the cross-examination of a policeman as to the credence afforded to his evidence in an earlier trial. The trial judge had made a ruling inhibiting such cross-examination and it was stated by Parker LJ and Hodgson and Macpherson JJ, that although the acquittal sought to be relied upon related, as in the instant case, to a different accused and a different offence, it was a matter of degree whether the cross-examination. should have been allowed in circumstances where the credibility of the constable was vital and the offences and interviews closely connected. In the event they held that the defence should "have been allowed to bring the matter out" though the conviction was ruled unsafe and unsatisfactory on other grounds. Parker LJ said at pp 292 and 293 :-

"It is clear that if, in the present case, the officer bad been convicted of perjury in relation to certain interviews justice would have required that the jury be so informed. If although neither charged with nor convicted of perjury, the evidence of the other interviews has been rejected; justice also in our view demands that the jury should know. In such a case they would no doubt be told that the acquittal does not show the police officer is a liar either generally or in relation to the particular matters for it goes no further than to show that the previous jury were not sure of the truth of his evidence. In our view however it is relevent ..... The matter may perhaps he tested in this way. Supposed a police officer says that he has obtained admissions from seven different defendants to a group of offences in a series.of interviews conducted over a short period. Supposed all of them say that the interviews never took place. Supposed that six of the seven all tried separately and that all six were acquitted. Supposed the seventh has then tried. It offends against common sense to say that on the trial of the seventh it is not relevant on credibility for the jury to know that the officer's has not been accepted by six separate juries. The matter must be one of degree and in our judgment, the circumstances of the present case are such that the cross-examination ought to be allowed ".

We accept that the credibility of Ngai and Sui Kuen Kuen was critical. We do not find, however, any connection, save that the accomplices were parties to the two crimes, between the circumstances of the earlier trial referred to in this ground of appeal and the instant trial. Further, we would emphasise that in his summing-up the trial judge in R v Gary Cooke⁽⁵⁾ had suggested to the jury that there was every reason to accept the constable's evidence as reliable.

12. Even accepting the correctness of the decision just cited, as to which we express no opinion, we are satisfied that, insofar as the propriety of a hypothetical ruling in relation to cross-examination about the earlier trial would have been a matter of decree, the absence of such cross-examination in no way vitiated the convictions. It would have made no further appreciable inroads on the credibility of the accomplices in relation to whose testimony the jury had fully been informed of the dangers. There was no injustice and we have no doubts as to the safety of the convictions.

13. We refuse both application for leave to appeal against conviction.

(1) Cr. App No 78 of 1986 (unreported)

(2) [1988] Cr Law Review

(3) [1978] 66 Cr App Rep 6

(4) [1985] 82 Cr App Rep 181

(5) [1987] 84 Cr App Rep 286