THE QUEEN v. LEE ON KEI AND OTHERS

IN THE COURT OF APPEAL

1994, No.359
(Criminal)

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JUDGMENT

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Liu JA: (delivering the judgment of the Court):

1. The applicant stood charged as an alleged member of a conspiracy to steal from China Motor Bus. After trial, she was convicted by the judge and sentenced to 18 month’s imprisonment, suspended for three years.

2. Time for appeal has elapsed and she seeks leave to appeal out of time against her conviction. In our calculations, the duration of delay is approximately 8½ months. The applicant explains that the delay was caused by a decision taken on her own, despite legal advice on good prospects of an appeal, for fear that she might incite the Crown to apply to increase her husband’s sentence.

3. We have been as fully assisted by the usual meticulous skeleton submissions of Mr. Mullick as we have been helpfully aided by Mr. Matthews for the Crown. We accept as the basic approach to her application that we need consider the length of the delay, the reasons she proffers for its causation and the prospects, if any, of her appeal succeeding.

4. The applicant was the wife of the 1^st defendant, a co-cospirator in the trial. Amongst involvements relied upon by the Crown were her car journey on 25 October 1990, her telephone conversation with the ICAC undercover agent on 3 July 1991 and her interviews with ICAC officers together with the video tapes of those interviews.

5. We have examined the papers placed before us in this appeal in conjunction with the skeleton submissions of counsel for the applicant. We are not postulating that the grounds to be advanced for her appeal, if an extension and leave be granted, would be wholly unarguable. But on the whole, we are unable to find sufficient merits in the appeal bundle which would lead us to the conclusion that the leave now being sought should be granted after such a long delay or upon the explanations given by the applicant. The applicant was well aware of the conspiracy and the activities of her husband and some of the other conspirators in it. There was sufficient involvement on her part. In particular, we would, for the purposes of her application for extension, focus on her presence in the rear of the car on 25 October 1990. On that day, the third accused was the driver. The undercover agent, Lo, was in the passenger seat in front. The applicant was in the rear together with her husband, the first accused. The evidence was that the sound of pouring coins from a CMB bag into a plastic bag was heard by Lo in front coming from the rear. The pouring of coin into a plastic bag would have to involve more than one person, and from this and the other circumstances of this case it was open to the trial judge to infer participation on the part of the applicant. The applicant has failed to persuade us that her prospects of the appeal succeeding can be said to be good.

6. We are unimpressed by the long delay of approximately 8½ months. Further, the applicant made an informed election not to appeal and her decision was made for the purpose of avoiding a possible risk of the Crown applying for an increase of her husband’s sentence. It is submitted that after the successful appeal of the 18^th defendant in this case, her fear finally dissipated. Her decision not to appeal was clearly taken for serving some purpose of her own. We do not regard the explanation proffered by the applicant as sufficient for the long 8½ months’ delay.

7. We should say again how much we indebted to the well-structured skeleton submission of counsel for the applicant. We do not find it necessary to refer to the specific authorities cited.

8. In conclusion, we are not prepared to grant the applicant an extension of time to make an application for leave to appeal. Her application is there fore dismissed.