R. v. LEE KWOK ON

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 and two co-accused were convicted of robbery after trial before Leong J. and a jury. He now applies for leave to appeal against that conviction.

2. An accomplice named Yip, who with two other persons was named in the indictment as one of a number of persons who had participated in the robbery, gave evidence for the prosecution. He testified that on 19 October 1989 he was having tea at a restaurant in Jordan Road with one Pan Chai, who was named in the indictment as one of the accomplices, Pan Chai's girlfriend and one Fei Chai Tak, when he received a call on his paging device from one Lam Sze-ming, another person named in the indictment, Lam told him that he had quarrelled with some people in the Kau Kee Restaurant in Tsimshatsui and asked Yip to go there. Having received this call, Yip told his friends to wait for him while he went to find one Ah Shing. He then met Ah Shing and told him that Lam had informed him that he had had a quarrel with some people in Tsimshatsui. He also paged one Ah Chi, who was one of the applicant's co-accused. As a result, the applicant, whom Yip knew as Sai Kwo, Ah Chi and a man unknown to Yip arrived. At Ah Shing's suggestion that they should carry knives, they all armed themselves in case the need to use weapons arose. The group then drove to the Jordan Road restaurant where they asked Pan Chai, Pan Chai's girlfriend and Fei Chai Tak to accompany them. The entire group then drove in two cars to the vicinity of the Kau Kee Restaurant where all of them, other than Pan Chai's girlfriend and the unknown man, alighted and walked to the road junction outside the restaurant. There they met Lam who explained that the group with whom he had earlier quarrelled had already left the restaurant.

3. Ah Shing then entered the restaurant to use the toilet. When he returned, he told Yip that, as he was going to the toilet, he had seen a group of persons at a table who were wearing valuables. Pan Chai and Yip then entered the restaurant to see the situation for themselves. When they returned, Ah Shing told Yip, Pan Chai and Lam "to go with Fei Chai Tak and Sai Kwo (the applicant) to rob that group of people."

4. At this time Fei Chai Tak and the applicant were standing some distance away. Lam then went over and spoke to them, but Yip did not hear what was said. Following this, Pan Chai and Yip went to one side of the road junction while Lam led the applicant and Fei Chai Tak to the other side of the road. Some five to ten minutes later the customers emerged from the restaurant. Yip walked up to them and told them to stop. When Pan Chai, who accompanied him, pulled out a knife one of the customers ran away. This caused Yip to become frightened. He then abandoned the robbery and went back to the car in which he had come to the restaurant. He was soon joined by Pan Chai, Fei Chai Tak and the applicant. All four of them drove off.

5. In the course of the journey to the Choi Hung Estate, Yip noticed some watches, a gold chain and a portable telephone. He asked Pan Chai, "Got them just now?" to which Pan Chai replied "Yes." In cross-examination Yip re-iterated that the applicant had not been present when Ah Shing told Yip, Pan Chai and Lam to go with Fei Chai Tak and the applicant to rob the group of people, and agreed that he had not seen Fei Chai Tak and the applicant do anything in relation to the robbery.

6. Of the several grounds of appeal drafted by Mr. Buchanan, who appeared for the applicant in this court and at trial, the principal ground was that the verdict was unsafe and unsatisfactory because the judge failed to direct the jury (1) that the applicant was not present when the instruction was given to commit the robbery, (2) that that instruction was not evidence against the applicant and (3) the jury were not told that it was Yip's evidence that he did not see the applicant do anything in relation to the robbery. Moreover, the judge misleadingly directed the jury as follows.

"Now you will note from the evidence of Yip that Yip did not mention what part Sai Kwo (the applicant) played in the robbery but it is open to you to infer that Sai Kwo was there together with the other robbers to rob the customers pursuant to their common design."

7. 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 the applicant was not present when Ah Shing had given the instruction to Yip, Pan Chai and Lam to go with Fei Chai Tak and the applicant to rob people, and that he had not seen the applicant do anything in relation to the robbery.

8. 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, the applicant'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 the applicant stood with Fei Chai Tak 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 the applicant and Fei Chai Tak to participate in the robbery, as Yip said he had been instructed to do, there was no direct evidence that the applicant 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.

9. Mr. Wong for the Crown submitted that on the basis of that statement there was evidence from which the jury could infer that the applicant had participated in the robbery. While we accept that this evidence coupled with that of the applicant's presence at the scene was sufficient to justify the judge in leaving his case to the jury, we cannot help but observe that the tenuous nature of the case against the applicant made it all the more important that the judge give the jury a careful and accurate direction on the law and the evidence.

10. However, he not only failed to direct them that what Ah Shing had told Yip and Pan Chai was not evidence against the applicant, but he conveyed the impression in the loosely worded passage to which we have earlier referred that Yip's testimony, although not specifying the role which the applicant had played, was that he had participated in the robbery.

11. In the light of these matters we have come to the conclusion that this conviction is unsafe and cannot stand. That being so, it is not necessary to refer to the other grounds of appeal. We therefore grant the application, treat it as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence.