HKSAR v. Leung Ping Choy

CACC000149/1997

IN THE COURT OF APPEAL OF THE HIGH COURT

1997, No.149
(Criminal)

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Coram: Hon Power, V.-P., Saied and Gall, JJ. in Court

Date of hearing: 5 September 1997

Date of judgment: 5 September 1997

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J U D G M E N T

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Gall, J. (giving the judgment of the Court) :

1. The Applicant was convicted by H.H. Judge Surman on 5^th March 1997 after trial of one charge of robbery and was sentenced on that day to five years' imprisonment.

2. It was common ground in the case that the Applicant and the victim were known to each other and that they worked together in a cleaning company, the latter being the supervisor of the Applicant.

3. It was the evidence for the prosecution that the Applicant on 10^th November 1996 entered a room in premises where the victim was working and where at the time he was sleeping. The Applicant was said to have grasped the victim by the neck, threatened him with a knife and taken his wallet. From the wallet, the Applicant took the sum of $10,000. The victim reported the matter to the police who arrested the Applicant on 21^st November 1996.

4. The Applicant gave two statements to the police, the voluntariness of which were contested at the trial. The district judge ruled them to be admissible and they were admitted into evidence.

5. In the first of the statements written in his own hand, the Applicant said that he asked the victim to lend him $100 to buy white powder. The victim refused so the Applicant took a small knife, threatened him and fled after taking $10,000 from his wallet. In the second statement, the Applicant said he took the knife from a table in the room where the incident took place and that the robbery took place at about 12.50 p.m. on 10^th November 1996.

6. The Applicant gave evidence and testified to his employment and relationship with the victim. On 10^th November, he said he slept at home until 12.30 p.m. and then he went to the premises where he found the victim and asked him for a loan of $100 which request was refused. He said he then leaned against the bed occupied by the victim for some five minutes and left the premises. He denied committing the robbery.

7. The first ground of appeal is that the incident lasted only a very short period of time, less than one minute, and that the suspect passed the victim for little more than one second and that in the circumstances of the shortness of time, the fright of the victim and his unconsciousness, a misidentification of the Applicant took place.

8. The Applicant accepts and the District Court Judge found that the Applicant and the victim were well known to each other. The Applicant in his evidence at trial testified to a conversation with the victim at the relevant time and then to standing by the victim for some five minutes. The victim testified to the presence of the Applicant and the threat made to him with the knife. This is not a fleeting glance situation and the District Court Judge was fully entitled to find that the identity of the Applicant was proved beyond reasonable doubt.

9. The second ground of appeal is that no identification parade was held by the police and that the suspect passed behind the victim when he left and that the victim could not have seen the suspect.

10. The allegation as to the opportunity for the victim to see the Applicant flies in the face of the evidence. The District Court Judge found from the victim whom he believed, and from the statements made by the Applicant to which he gave weight, that the victim saw a person well known to him effect the robbery. No criticism can be levelled at the failure by the police to hold an identification parade in the circumstances of this case.

11. The final ground of appeal as set out in the application for leave to appeal was that the District Court Judge refused to measure the distance from the top of the head of the victim to his right rear pocket and to compare it with the distance measured from the hand of the Applicant to his shoulder to show that his hand could not have reached the pocket of the victim. Given that it was impossible from the evidence to determine precisely the manner in which the victim was held, the District Court Judge was entitled to rule on that matter as he did.

12. At the hearing of the application, the Applicant raised further grounds of appeal not set out in his written grounds of appeal. The first of these was that the trial judge refused to view the scene where the robbery took place. The grant or otherwise of a view of the scene is a discretion entirely within the province of a trial judge and nothing raised, either at trial or before us, indicates that a view of the scene was necessary. There is nothing in this ground of appeal.

13. The second ground of appeal raised before us was an allegation of bias on the part of the trial judge because he refused the application by the Applicant to measure the victim and himself, that he did not give the Applicant a chance to prove his innocence and that the trial judge relied upon the evidence of the victim in coming to his findings of guilt.

14. We have carefully considered the proceedings which are before us and all that has been said by the Applicant, there is no indication whatsoever of any bias on the part of the trial judge, nor was it in any way incumbent upon the Applicant to prove his innocence. The application for leave to appeal against conviction is dismissed.

15. The Applicant also seeks leave to appeal against his sentence of five years' imprisonment. He gave no grounds in respect of that appeal in his written application nor does he seek to address us upon it. We have considered the sentence passed upon the Applicant and can see no reason to interfere with it. The application for leave to appeal against sentence is dismissed.

Representation:

Mr D.G. Saw, S.C. & Mr Simon Tam, for Respondent

Applicant, Leung Ping Choi, in person