HKSAR v. Fung Kin Ping

CACC000155/1999

CACC 155/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 155 OF 1999

(ON APPEAL FROM HCA 62 OF 1999)

---------------------------

Coram: Hon Nazareth V-P, Stuart Moore V-P and Woo J in Court

Date of Hearing: 7 July 1999

Date of Judgment: 7 July 1999

----------------------

J U D G M E N T

----------------------

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

1. The applicant, Fung Kin-ping, was convicted on two charges in the District Court by Her Honour Judge Toh on 9 March 1999. The first charge was robbery, contrary to s.10(1) and (2) of the Theft Ordinance (Cap. 210), the particulars being that with another person, Fong Yin-lam, on 6 December 1998 near Wing Ming Street, Shamshuipo, Kowloon, he robbed Fu Hay-kam of coins amounting to $7.60 and his wife, Tang King-yan, of $500 in cash and one gold bracelet on or about 5 December 1998. The second charge was of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully. He was sentenced to five years on the robbery charge and 15 months on the other charge, 10 months of which were to run concurrently and five months consecutively to the sentence on the first charge. The other man was also charged with him. He pleaded guilty and gave evidence against the applicant. He was in fact the 1st defendant at the trial and the applicant was the 2nd defendant.

2. The two victims went on the day in question, 6 December 1998, to the Cheung Sha Wan Cemetery and after that they were making their way down when they were suddenly confronted by two men carrying knives. The wife was robbed of about $500 and one gold bracelet. The coins came from her husband.

3. After the robbery, the robbers fled. A report was made to the police who promptly sent out a patrol car and arrested the applicant and the 1st defendant.

4. Subsequently at identification parades the husband identified the applicant as one of the robbers who held a short knife. His wife also identified the applicant and the 1st defendant who became PW1.

5. The judge carefully considered the evidence of PW1 and of the husband and wife. She accepted the evidence of the husband and wife as the truth. She also found that PW1's accomplice evidence was corroborated by the evidence of the husband and wife. As we say, she convicted the applicant and then proceeded to sentence PW1 and the applicant. He now appears before us, making applications for leave to appeal against conviction and sentence.

6. In his written notices of application, he relies on numerous grounds in each case. Before us, he has said that he knows that he has done something wrong and does not want to say anything else. Presumably that means that he acknowledges his guilt, but in the potentially equivocal way he has done so, we think it necessary to address his grounds briefly.

7. Beginning with his grounds relating to his conviction, he first of all claims that he was tortured by the detectives. This has very little to do with his conviction because he does not suggest he made any admission, nor from the record and the reasons for verdict can it be seen that there is any reliance or any admission or confession.

8. His next two grounds are concerned with the accomplice evidence given by PW1. He complains that it is tainted evidence and that it was given by PW1 to obtain more favourable treatment. This point was very carefully addressed by the judge at p.2 of her reasons for verdict. She carefully examined the evidence, gave her reasons for accepting it. She was entitled to do upon the corroboration afforded by the evidence of the husband and wife. There is nothing in these two complaints.

9. The remaining five grounds are complaints about the evidence of the husband and wife, their identification of him as one of the suspects, and discrepancies in their description of the amount of money stolen. He also makes an assertion that he did not have a knife. He complains of discrepancies between their statements. He also says that the victims did not describe the special features of the money, and moreover, there were discrepancies as to the denominations of the currency notes.

10. The judge did not overlook any of these matters. She dealt with the discrepancies, the currency notes, the knives, and having considered all of that, she came to the conclusion that the husband was an honest witness and that his identification of the defendant was not mistaken or false. Similarly she found that the wife was a frank and honest witness who was doing her best to tell the truth. She accepted her evidence. Clearly, she was entitled to do so. We can find nothing to fault her acceptance of that evidence. Nothing the applicant has said in his written notices leads us to question her conclusions in any way. Allied to that, of course, is what the applicant has said today, that he knows he has done wrong. Clearly, there is no merit whatsoever in his application for leave to appeal against conviction. We dismiss it.

11. Turning to his application for leave to appeal against the sentence on the robbery charge, again he has nothing to say to us on this today. We turn then to the grounds he has listed in his application. He began by saying he felt that the sentence was very heavy and asking whether imprisonment for 65 months is reasonable. There is nothing is his first ground which is simply that he was wrongly accused. His second ground is that he did not injure the victims. The third ground is that he did not take even one cent of property from them; his fourth ground that he was only a partner, and the fifth ground that this is the first time he has come to Hong Kong and he has no criminal record. With respect to the last, it is clear that the judge treated him as a person with a clear record.

12. At the end of the day, the question is whether the sentence is manifestly excessive. The judge considered that five years imprisonment was appropriate after trial for the robbery. She mentioned Mo Kwong-sang [1981] HKLR 610 which specifies the tariff of five years if knives are used and that in addition for aggravated circumstances, one of which is robbery by more than one person, an additional period may be imposed. In a way, the judge was generous to the applicant in not awarding a higher period than five years in view of that circumstance. Plainly, there is no merit in the grounds listed. We refuse the application.

13. Having regard to the fact that there is no merit whatsoever in either of the applications, we disallow a period of three months of the time he spent in custody from counting towards his sentence. The result is that he will serve three months extra.

Representation:

Mr Albert Wong, SGC for Director of Public Prosecutions

Applicant in person