R. v. Yee Kwai Fook and Others

CACC000552/1994

IN THE COURT OF APPEAL

1994, No. 552
(Criminal)

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Coram: Hon. Nazareth, V.-P., Bokhary and Liu, JJ.A.

Date of hearing: 26 May 1995

Date of judgment: 26 May 1995

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J U D G M E N T

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Nazareth, V-P (giving the judgment of the Court) :

1. This is an application for leave to appeal against conviction. The applicant, who was the 7th defendant before Stuart-Moore J sitting with a jury, was charged with a conspiracy to rob.

2. As the judge said, there was clear evidence of a conspiracy and the real question was whether the 7th defendant was party to that conspiracy. The evidence, as Mr McNamara points out, consisted in its entirety of the evidence of three accomplices. That evidence has, of course, to be considered in the circumstances of the case but Mr McNamara has very crisply and concisely pointed out, first, to what I may called "internal inconsistencies in the evidence of the accomplices". There can be no doubt that each accomplice contradicted himself and there were variations in their evidence.

3. The second point Mr McNamara makes equally skilfully is that the evidence of the accomplices given to the court contradicts the statements given to the police. He has demonstrated that, taking us to both.

4. The third point is that the 3rd prosecution witness gave evidence that the applicant, the 7th defendant, was unaware of a conspiracy to rob. Those are serious matters and the judge regarded them in a very serious light. He gave very careful directions on them - directions that are not criticised by Mr McNamara and indeed were as favourable to the applicant as they could be. Warnings were given. The weakness of the evidence was pointed to. And I repeat again, no criticism is made of the judge's directions. In those circumstances it would be a very strong thing for this Court to intervene. Mr McNamara realises that. He puts his case on the basis of a lurking doubt.

5. As I said at the beginning, this evidence has to be addressed in the circumstances in which it was given, the circumstances of the conspiracy. We do not accept Mr McNamara's submission of a lurking doubt. The jury were fully entitled to convict on the proper even favourable directions, and they did convict. Speaking for myself, I cannot say I am surprised that they did convict. But what does matter is that they were entitled to convict and we do not have a lurking doubt. Leave to appeal against conviction is refused.

Representation:

Mr A.A. Bruce (Crown Prosecutor) for Respondent

Mr John Mullick (DLA) for D1, D3 and D5

Mr John McNamara (M/s Leo K.W. Lok & Co) for D7