THE QUEEN v. LEE CHI WAI

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. On the 29th October 1986 there was a robbery at the Evergreen Jewellery Company in Nathan Road. Three armed and masked men made away with 276 items of jewellery and almost $400,000 in cash.

2. On the 29th December 1987 Lee Chi Wai ("the Defendant") was found guilty of that robbery by the 5:2 verdict of a jury before Judge Daniell sitting as a Deputy Judge of the High Court. The jury accepted the Crown's case that the Defendant was the driver of the car in which the three who "actually perpetrated the robbery made good their escape. He was sentenced to 15 years' imprisonment.

3. He now applies for leave to appeal against that convictions. He had originally also applied for leave to appeal against the sentence, but this morning through his counsel, he asked for leave, which we gave, to abandon that application.

4. The Crown's case rested essentially on the evidence of a Mr. Ngai Shun Hung one of the three men who went into the jewellery shop. His particular task was to immobilize the security guard on duty. The judge correctly warned the jury as to the desirability for corroboration of the evidence of Mr. Ngai.

5. The only evidence which could amount to corroboration came in this way. There was a witness Mr. Wong Chun for whom at the material time the Defendant was working as a casual paint sprayer on the 28th October, that is the day before the robbery the Defendant asked Mr. Wong if he could tell him the telephone number of a company which made car number plates. Mr. Wong gave him the number of a company, the name of which he could not recall at the trial. At the same time he asked the Defendant if, when he was ordering whatever he, the Defendant, wanted, he would order 3 individual number plates for himself i.e. Mr. Wong. He heard the Defendant placing the telephone call to the company.

6. Later the same day, - Mr. Wong was not able to recall the time, - he drove the Defendant to the company whose telephone number, he had given. He was unable to give the address of that company to the jury, but he said, he could take anybody there. He waited in the car outside while the Defendant went inside, and later came out with some number plates which included those which he, Mr. Wong, had ordered. He drove the Defendant back to his own company.

7. Another witness, Mr. Yuen Cheuk Wah, was employed at that time in a company which makes number plates. He said that at about 5.30 p.m. on the 28th October he received a telephone order for number plates which comprised one pair, the number being CF8673 and three individual plates. The caller said that the plates were needed urgently. At about 10 minutes to 6 a person called to collect the plates but, the plates were not ready. They were not completed until 6 p.m. when he gave them to the person who had then taken them away.

8. If the jury believed that evidence, then, in our judgment, despite the eloquent submission of Mr. Wong who appears now for the defendant but did not do so below; the jury would be entitled, in the absence of any explanation from the Defendant, to infer that it was he who placed the telephone order r and subsequently obtained the pair of number plates CF8673. It was not disputed that those plates were found on the getaway car when, after the robbery, it had been abandoned.

9. When the judge put this matter to the jury, he did so in these words-

"    Now If you accept it as being true - having: heard Mr. WONG's evidence, if you accept it as being true that the defendant ordered and obtained these number-plates, as he said, at about 6 p.m. on the day before the robbery, then his evidence, that is WONG's evidence, together with the evidence of the auxiliary police officer and other independent evidence showing this car was used as the get-away vehicle that is capable of corroborating NGAI's testimony."

That obviously was not strictly correct. Mr. Wong did not say that the Defendant had ordered these number plates. It was Mr. Wong and Mr. Yuen taken together who could, if the jury thought fit, betaken as having-said so. But we are not persuaded that, there is any significance in that minor slip or that the jury were, in any way, misled.

10. The remaining criticism of the summing-up derives from the cross-examination of Mr. Wong -

"Q. Can you tell us about, the 29th of October - do you remember seeing him (that is the defendant) 'in your company on the 29th?"

A. Yes, I saw him."

This was confirmed in re-examination:-

"Q. Mr. Wong on the 29th October last year when you saw Ah Kin, (the D efendant), Has he with any one?

A. No."

11. The judge did not make any specific reference to this evidence, if indeed he referred to it at all. He merely commented, in another context, that "the Defendant had been working, so we are told, in Mr. Wong's garage, I think, doing some spray work to a car - shortly before the robbery but never returned to complete the job."

12. It is suggested that the judge should have directed the jury to the possibility that the evidence of Mr. Wong supported the Defendant's presence in Mr. Wong's garage at the time when, according to Mr. Ngai, the accomplice, he was together with Mr. Ngai, helping all the robbers escape.

13. We do not agree. Counsel for the defence took the cross-examination no further then we have already indicated The robbery did not take place till one o'clock in the afternoon. Mr. Ngai's evidence in chief was merely that the Defendant came to his house that morning". The only reference in the cross-examination was:-

"Q. In the morning of the 29th he came with the other two?.

A. Yes."

14. In our view, with respect to counsel, there is no foundation for the suggestion that he now makes.

15. For these reasons, the application for leave to appeal against conviction is refused.