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Woo Lai Wing v Hksar

Judgment Cited in Precedent Map Related
Vincent
Judgment Date16 January 1998
Year1998
Judgement NumberFAMC10/1997
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC000010/1997 WOO LAI WING v. HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMC000010/1997

FAMC No. 10 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 346 OF 1996)

BETWEEN
WOO LAI WING Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

Coram : Chief Justice Li, Mr Justice Litton, P.J. and
Mr Justice Ching PJ in Court

Date of Hearing : 16 January 1998

Date of Judgment : 16 January 1998

__________________________

D E T E R M I N A T I O N

__________________________

Mr Justice Ching, P.J.:

1. The applicant was the second of three men charged with having conspired to rob a fruit shop in Causeway Bay. All three of them were serving policemen. At their trial the main witness against them was another policeman who was acting under cover and who was brought into the conspiracy. The first accused had given a statement under caution which was admitted in evidence at the trial notwithstanding his objections. The applicant had also given a statement under caution which was also admitted notwithstanding his objections. He gave evidence in the trial within a trial and also upon the general issue. The third accused also gave statements under caution, the admissibility of which he did not dispute. He gave no evidence at trial. The first accused and the applicant were found guilty while the third accused was acquitted. The applicant applied to the Court of Appeal for leave to appeal but this was refused on 16th April 1997. His Notice of Application to this Committee for leave to appeal to the Court of Final Appeal was lodged on 7th November, 1997, so that he is well out of time. The ground of his intended appeal is that he has been the subject of a substantial and grave injustice.

2. The argument is that the verdict of the jury was inconsistent with the acquittal of the third accused. It is said that the evidence against the applicant and the 3rd accused was substantially similar. It came from the same undercover officer. The cautioned statements of neither contained any confession of guilt. The substantial and grave injustice is alleged to be contained in the fact that one was convicted while the other was acquitted, the position being exacerbated by the fact that the Judge at first instance had directed the jury "that it would be unsafe to convict one if you are unsure about the other" and by an unnecessary and inaccurate direction as to lies. The burden is upon the applicant and it is a very heavy one. The Court of Final Appeal does not sit as a second criminal court of appeal.

3. Bearing this in mind we turn to the facts in the present application. The case against the applicant was a very strong one. Quite apart from the evidence of the undercover officer, he admitted to having been at a meeting with the first accused, in the absence of the third accused. He admitted that at that meeting the first accused had invited him to take part in the robbery that night, had drawn a sketch of both the location of the fruit shop and of its interior, had displayed the implements that would be used, had described the getaway and the sharing of the proceeds and had asked for and been given the keys to the applicant's car. Having admitted all of this the applicant went on to say that he had refused to take part. Notwithstanding that he was a policeman he seems to have made no report about the matter. Later that same day he went to the vicinity of the fruit shop and there he met with the first accused but his excuse was that he had been asked to meet the first accused there for the purposes of being repaid a loan. He says that at that time the first accused again invited him to take part in the robbery but that he again refused. There was ample evidence to justify his conviction.

4. The case against the third accused was far less strong. The evidence of the undercover officer was that the third accused had indeed not been present at the meeting already referred to but had arrived just after it ended. The witness gave evidence of remarks made by the third accused at that time which showed that he knew of the plan and was a participant in it. When he was arrested that...

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