WOO LAI WING v. HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMC No. 10 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 346 OF 1996)

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D E T E R M I N A T I O N

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Mr Justice Ching, P.J.:

1. The applicant was the second of three men charged with having conspired to rob a fruit shop in Causeway Bay. All three of them were serving policemen. At their trial the main witness against them was another policeman who was acting under cover and who was brought into the conspiracy. The first accused had given a statement under caution which was admitted in evidence at the trial notwithstanding his objections. The applicant had also given a statement under caution which was also admitted notwithstanding his objections. He gave evidence in the trial within a trial and also upon the general issue. The third accused also gave statements under caution, the admissibility of which he did not dispute. He gave no evidence at trial. The first accused and the applicant were found guilty while the third accused was acquitted. The applicant applied to the Court of Appeal for leave to appeal but this was refused on 16th April 1997. His Notice of Application to this Committee for leave to appeal to the Court of Final Appeal was lodged on 7th November, 1997, so that he is well out of time. The ground of his intended appeal is that he has been the subject of a substantial and grave injustice.

2. The argument is that the verdict of the jury was inconsistent with the acquittal of the third accused. It is said that the evidence against the applicant and the 3rd accused was substantially similar. It came from the same undercover officer. The cautioned statements of neither contained any confession of guilt. The substantial and grave injustice is alleged to be contained in the fact that one was convicted while the other was acquitted, the position being exacerbated by the fact that the Judge at first instance had directed the jury "that it would be unsafe to convict one if you are unsure about the other" and by an unnecessary and inaccurate direction as to lies. The burden is upon the applicant and it is a very heavy one. The Court of Final Appeal does not sit as a second criminal court of appeal.

3. Bearing this in mind we turn to the facts in the present application. The case against the applicant was a very strong one. Quite apart from the evidence of the undercover officer, he admitted to having been at a meeting with the first accused, in the absence of the third accused. He admitted that at that meeting the first accused had invited him to take part in the robbery that night, had drawn a sketch of both the location of the fruit shop and of its interior, had displayed the implements that would be used, had described the getaway and the sharing of the proceeds and had asked for and been given the keys to the applicant's car. Having admitted all of this the applicant went on to say that he had refused to take part. Notwithstanding that he was a policeman he seems to have made no report about the matter. Later that same day he went to the vicinity of the fruit shop and there he met with the first accused but his excuse was that he had been asked to meet the first accused there for the purposes of being repaid a loan. He says that at that time the first accused again invited him to take part in the robbery but that he again refused. There was ample evidence to justify his conviction.

4. The case against the third accused was far less strong. The evidence of the undercover officer was that the third accused had indeed not been present at the meeting already referred to but had arrived just after it ended. The witness gave evidence of remarks made by the third accused at that time which showed that he knew of the plan and was a participant in it. When he was arrested that same night he gave his cautioned statement in which he said that he had been invited by the first accused for a late night snack and had been asked to drive the car for that purpose. He denied any knowledge of the planned robbery.

5. The Judge at first instance correctly directed the jury that all questions of fact were for them and that they were free to reject any views she might express. She directed them to consider the case against each accused person separately and told them what evidence was available against each of them. It is true that she also told them, as already set out, that it would be unsafe to convict either the applicant or the third accused while acquitting the other. It has not been argued that that was a direction in law or one which the jury was bound to follow. We do not think that it was. It was an expression of her own view which she had already told them they could reject. We do not see, in any event, how what she said could make the jury's verdict inconsistent with the acquittal of the 3rd accused. Either it was or it was not, whether the Judge had said those words or not.

6. Nor has this application been argued on the basis of the direction on lies. Once more we cannot see how that direction, whatever else may be said of it, can play any part in the inconsistency of the verdict. Once more either the verdict was inconsistent or it was not, whatever direction was or was not given. In the end it was for the jury to accept those parts of the evidence which satisfied them to the requisite standard. In the circumstances briefly set out above they were justified in convicting the applicant. Whether they rejected the evidence of the undercover officer against the third accused or simply thought that the case against him was not sufficiently proved was a matter for them.

7. We can see no necessary inconsistency in the verdicts. Nor, on the facts as outlined, can we find that the applicant has discharged his very heavy burden before us. We refuse the application for the extension of time and, even if we had not come to that conclusion, we would have dismissed the application.