R. v. WONG MING TAK

IN THE COURT OF APPEAL

1991, No. 483
(Criminal)

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J U D G M E N T

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Macdougall, J.A.:

1. The applicant was convicted after trial before Leong J. and a jury on two counts of robbery. The first of those counts, which was the 3rd count on the indictment, alleged that on 17 October 1989 he and three named persons and another or others unknown robbed twelve victims at the Chilli Club Thai Restaurant in Wanchai of a large quantity of cash, jewellery, credit cards, and other items of property.

2. The second of the counts, which was the 4th count on the indictment, alleged that the applicant and Lee Kwok On and Wong Chi Man together with four named accomplices on 19 October 1989 robbed two persons near the Kau Kee Restaurant in Tsimshatsui of wristwatches, a gold chain, a portable telephone and a pen.

3. In respect of each of these convictions the applicant was sentenced to four years' imprisonment. Surprisingly, since the robberies occurred on different days and at different places, the judge ordered that those sentences be served concurrently.

4. The applicant now applies for leave to appeal out of time against both convictions. In the circumstances of this case we granted leave. Mr. Buchanan, who appears on behalf of the applicant only in respect of the application to appeal against the conviction on the fourth count, submitted that that application should succeed on the ground that a co-accused, one Lee Kwok-on ("Lee"), had successfully appealed against his conviction on that count, that the evidence against both Lee and the applicant was essentially the same and that the judge's failure properly to direct the jury was relevant to both of them.

5. The evidence for the prosecution was that the applicant and Lee were among a group of young men that had been summoned by a friend to drive to the Kau Kee Restaurant to settle a quarrel that had arisen there. On arrival, however, they were told that the group with whom their friend had quarrelled had already left.

6. An accomplice named Yip Wai-kwok ("Yip"), who gave evidence for the prosecution, testified that he was one of the young men in the applicant's and Lee's group and that after they had been told that the other group had left the scene, one of his companions, a youth named Ah Shing, entered the restaurant to go to the toilet. On his return, Ah Shing said that he had noticed that there were some people at a table in the restaurant who were wearing valuables. There was no evidence that this comment was made in the presence and hearing of either Lee or the applicant.

7. Yip and another youth called Pan Chai then entered the restaurant to have a look at the table of customers. After they had returned, Ah Shing told them to go with Lee and the applicant and rob the customers. When Ah Shing gave this instruction both Lee and the applicant were standing some distance away and were unable to hear what Ah Shing had said. Another member of the group, one Ah Chi, then went over and spoke to Lee and the applicant. There was, however, no evidence as to what he said, let alone whether Lee and the applicant had agreed to or even replied to whatever Ah Chi may have said to them. All that Yip was able to say was that Ah Chi, Lee and the applicant then crossed over to the other side of the street.

8. Shortly afterwards the customers emerged from the restaurant. Yip testified that he and Pan Chai approached them, produced a knife and ordered them to stop. When one of the customers took to his heels Yip became frightened, and he and Pan Chai turned and ran back to the car in which they had driven to the scene. He said that at that time, apart from himself, Pan Chai, Ah Chi, Lee and the applicant, Ah Shing and his girlfriend were also present. The latter two were standing on the opposite side of the road. This meant that five of the group had moved to the opposite side of the road.

9. When asked in examination-in-chief what the others had done when he and Pan Chai accosted the customers, Yip replied that Lee and the applicant had "stood there". And when cross-examined by Mr. Buchanan, who represented Lee at trial, Yip said that he did not see Lee do anything in relation to the robbery.

10. Later, when cross-examined by counsel who was then appearing for the applicant as to what the applicant had done, Yip replied that he had only seen him "standing there".

11. The customer who had fled had testified for the prosecution that he had seen his three companions surrounded by six men. This conflicted with Yip's testimony not only as to the identity of those who had participated in the robbery but also as to their number.

12. In his directions to the jury the judge said:

"You will remember Yip's evidence is that their group went up to the customers in two groups, one group was Yip and Pan Chai, the other group was Ah Chi, [Lee] and [the applicant]".

But nowhere in his testimony did Yip say that Lee and the applicant had gone up to the customers.

13. Later, the judge said:

"You will therefore note that according to Yip.... [the applicant] was one of the robbers in the [Chilli Club Thai Restaurant robbery]; and [Lee and the applicant] participated in the robbery [outside the Kau Kee Restaurant]."

14. It is plain from the transcript that Yip did not say that Lee and the applicant had participated in the latter robbery. In the light of his testimony that he did not see either Lee or the applicant do anything apart from "standing there" at the Kau Kee Restaurant robbery, it was especially important that the judge should have fairly and accurately stated to the jury the evidence relating to Lee and the applicant. The reference to the fact that Yip had testified that the applicant had participated in the Chilli Club robbery made it even more important that his evidence concerning the robbery outside the Kau Kee Restaurant be fairly stated,, for the jury, if satisfied that the applicant took part in the former robbery, were all the more likely to conclude from his presence at the scene of the latter robbery that he must have been involved in that robbery as well.

15. Plainly, what was required was a careful analysis of Yip's testimony. In delivering judgment on 20 January this year in Lee's appeal (R. v. Lee Kwok On Criminal Appeal 483/1991) this court said:

"An examination of the summing-up reveals that in reciting Yip's evidence to the jury the judge failed to draw to their attention the fact that Yip had clearly testified that [Lee] was not present when Ah Shing had given the instruction to Yip, Pan Chai and Lam to go with [the applicant] and [Lee] to rob people, and that he had not seen [Lee] do anything in relation to the robbery.

Since the evidence was that the group's purpose in going to the Kau Kee Restaurant was to take action in respect of a quarrel that was alleged to have occurred there between Lam and a group of people, [Lee]'s presence outside the restaurant with one or more of those who had accompanied him there, was not in itself evidence from which it could be inferred that he had lent himself to a plan, which had suddenly and unexpectedly been hatched by Ah Shing and others in his absence, to rob some customers of the restaurant. The fact that [Lee] stood with [the applicant] waiting on one side of the street while their companions waited on the other side was at least as consistent with the some purpose other than robbery, such as waiting for the return of the group who had allegedly quarrelled with Lam, as it was with a plan to rob. Even if there had been evidence that Lam had told [Lee] and [the applicant] to participate in the robbery, as Yip said he had been instructed to do, there was no direct evidence that [Lee] had agreed to take part. There was evidence before the court in the form of a statement made by one of the victims of the robbery in which she said that she saw five Chinese men suddenly "come over from the opposite direction." However, she referred only to four of them taking part in the robbery."

16. These words apply equally to the applicant's case as to that of Lee.

17. In the circumstances we have come to the conclusion that the conviction of the applicant in respect of the robbery outside the Kau Kee Restaurant (the fourth count) cannot stand. We therefore grant the application and, treating the hearing as that of the appeal, allow the appeal, quash the conviction and set aside the sentence passed on that count.

18. The applicant was not represented on his application for leave to appeal against his conviction on the Chilli Club robbery count (the third count). He complained first, that the judge did not adequately direct the jury as to the danger that existed in convicting on Yip's testimony and second, that, because Lee's appeal had been allowed, it followed that Yip was an unreliable witness on whose evidence no jury could properly convict.

19. There is no substance in either of these complaints. The judge gave a proper warning as to the danger of convicting on Yip's testimony. As to the second matter, It is clear from what we have said that the reason for allowing Lee's appeal related to the judge's failure to present fairly to the jury the evidence given by Yip in respect of the robbery outside the Kau Kee Restaurant. This had no bearing on Yip's testimony regarding the Chilli Club robbery or the judge's directions on that count.

20. The application for leave to appeal against that conviction is therefore refused.