R. v. Tap I Yi Kong Ah Sum and Another

CACC000152/1996

IN THE COURT OF APPEAL

1996, No. 152

(Criminal)

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Coram: Hon Mortimer JA, Mayo JA and Sears J in Court

Date of hearing: 4 December 1996

Date of delivery of judgment: 23 December 1996

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J U D G M E N T

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Mayo MA giving the judgment of the Court:

1. The applicants seek leave to appeal against their convictions for robbery. They were charged together with another man with this robbery and they were both convicted after a trial before HH Judge Caird and the other man was acquitted. All three men pleaded guilty to being in Hong Kong without the lawful authority of the Director of Immigration. Both applicants were sentenced to five years and three months' imprisonment on the robbery count and they also seek leave to appeal against the sentences.

2. The facts were relatively simple. The victim of the robbery was at a bus stop outside a construction site at Sheung Shui early in the evening but after it was dark on the evening of 12 April 1995. He was walking away from the bus stop when he was accosted by three men. One of them was holding a knife and threatening him with it. The other men caught hold of each of his arms. He was robbed of $1800 cash. The men ran off and the victim made a report to the police.

3. Police officers attended and searched the area. They found the two applicants and the other man previously referred to in a subway near the scene of the robbery. The police rightly suspected that the men were illegal immigrants. They questioned the men and were satisfied from the responses made by them that they were the robbers they were looking for. The victim was unable to identify any of the alleged robbers.

4. The men were taken back to the police station and made cautioned statements. It was evident from the contents of the cautioned statements that both the applicants placed themselves at the scene of the robbery and obtained a share of the spoils. They both attempted to lay the main blame upon the third man who they claimed was the man who used the knife.

5. Also the A2 took the police to the grass verge nearby and pointed out where the knife had been disposed of. A knife was found which the victim claimed was similar to the one used in the robbery.

6. One of the main difficulties encountered in this case was the difficulty in effective communication. The arresting police officers had only a limited command of Mandarin and the applicants claimed to have no knowledge of Cantonese and only a limited knowledge of Mandarin. Both applicants claim to be from Xinjiang and to be members of the Uighur minority.

7. Almost all of the evidence against the applicants consisted of the admissions allegedly made at the time of their arrest and the contents of their cautioned statements.

8. The judge held voir dires to determine the admissibility of the confessions. The outcome of these was that the judge ruled the post-recorded statements taken at the time of arrest by the police officers - who were not fluent in Mandarin - to be inadmissible and the cautioned statements of A1 and A2 to be admissible. The main rationale for this distinction was that when the cautioned statements were taken they were taken by police officers familiar with the Mandarin dialect.

9. The judge was satisfied that the contents of the said statements which had been made were true and constituted proper admissions of the robbery by A1 and A2.

10. The written grounds of appeal of these two men are cast in a similar manner. They amount to little more than a denial of their involvement in the robbery. However on account of the difficulty in communication we arranged for the reasons for verdict and sentence to be interpreted to them again before they made submissions to us.

11. Before us neither applicant raised any matters of substance save for points made by them and their counsel at trial which were carefully and properly considered by the judge.

12. There was ample evidence to support these convictions.

13. There is no reason to suppose that they are in any way unsafe or unsatisfactory. The applications are dismissed.

14. As stated earlier the applicants also seek leave to appeal against the sentences of imprisonment which were imposed upon them on the robbery count. As can be seen from the facts which have been recited earlier in this judgment this was a serious case of robbery. Adopting the usual guidelines the sentences imposed were in no way excessive or wrong in principle. These applications are likewise dismissed.

Representation:

Mr A.A. Aruce QC and Ms Alice Chan for Crown Prosecutor

Tap I Yi Kong Ah Sum - 1st Applicant in person/present

Choi Po Lik Jo Yi Muk - 2nd Applicant in person/present