R. v. LEE WING LEE

IN THE COURT OF APPEAL

1994, No. 446
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant was convicted after a trial in the High Court before Deputy Judge Cannon of robbery. It was a serious case involving firearms and explosives. Four men entered the Emperor Gold and Jewellery Store at North Point violently and threatened members of the staff with their firearms. They succeeded in obtaining a number of valuable items, the value of which was slightly in excess of HK$1.2 million.

2. The applicant himself was not physically in possession of the guns or explosives and was not charged with offences arising out of their possession or use.

3. The robbers had difficulty in finding their get-away car when they were making their escape. They succeeded in entering a private car by threatening the driver with their guns and physically man-handled him but their efforts to escape in this were unavailing as the engine of the car would not start. They then abandoned the car and forced their way on to a lorry which was nearby by threatening the driver. At the same time one of the men held the driver of the private car at gun point.

4. An exchange took place with the police and a grenade was thrown from the cabin of the lorry outside to the vicinity of where the police officers were, occasioning them minor injuries.

5. One of the men pointed a pistol at a police officer who then fired at the men. They attempted to escape in the lorry but it came into collision with the private car which has been referred to. The men were arrested.

6. It was then ascertained that one of the men had been hit by the police fire and this man died shortly after this.

7. The prosecution case against the applicant was that he was one of the men who had planned the robbery and assisted in its performance.

8. The applicant went to China two days after the robbery and was only arrested on 14 July 1993. Shortly after his arrest he made a lengthy inculpatory statement to the police.

9. At the trial he gave evidence that the statement was beaten out of him by the police. The police officers concerned gave evidence as did the doctors who physically examined him shortly after the alleged assaults. It seems to have been accepted that the applicant had made the statement of his own free will and that the contents of the statement were true.

10. The other evidence implicating the applicant in the robbery was the evidence of one of the other robbers who had pleaded guilty to the offence Mr Chan Kin-man.

11. Mr Chan gave detailed evidence of the applicant's involvement. So far as Mr Chan was concerned the applicant had relayed instructions to him from a man referred to as Ah Wang. He gave evidence that at one point the applicant had informed him that he would receive HK$10-20,000 after the job was done and that the balance would be paid when everything was finalised.

12. In his written grounds of appeal the applicant complains that he should not have been charged with robbery. All that he had done was to conspire to rob.

13. Unfortunately the applicant appears to be labouring under a misapprehension on the law. If he did indeed take part in the planning and execution of this offence he was rightly found to be guilty even though he was not one of the men who actually entered the shop.

14. He also complains that his co-defendant was permitted to give evidence against him after the trial was already under way.

15. There is no substance to this complaint nor to the related complaint that Mr Chan was a drug addict and had a criminal record.

16. Deputy Judge Cannon gave the jury a careful warning concerning the dangers of accepting the evidence of an accomplice.

17. There is no reason to believe that the applicant's conviction was in any way unsafe or unsatisfactory. The application for leave to appeal against conviction is dismissed.