The Queen v. Chan Kwong Man

CACC000165/1990

BETWEEN

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Coram: Hon. Silke, V.P., Fuad, V.P., & Penlington, JJ.A.

Date of hearing: 28 November 1990

Date of decision: 28 November 1990

Date of handing down judgment: 11 December 1990

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court) :

1. This was an application for leave to appeal against a conviction on a charge of robbery before Judge Caird in the District Court on the 14th March 1990. On 28th November we dismissed the application and now give our reasons.

2. The victim in this case, Miss Cheung Siu Ying, was robbed on her way home on the 24th November 1988 at about 7 p.m. She gave evidence that when she gained entry through the grille across the entrance to her block of flats she was accompanied by two persons. One of them she described as being about 20 years of age and of medium build. On the stairway between the 2nd and 3rd floors she felt tired and stepped aside to allow the person who was following her to pass. However he did not do so but attacked her and tried to take her necklace. She resisted and shouted "Robbery". The man however then punched and kicked her causing injuries which included two broken teeth. She was then dragged by her neck down the staircase between the 1st and 2nd floor and her necklace was pulled away. She said that she tried to bite the man who was attacking her and noticed a small mark on a part of his hand. The robber then succeeded in taking away her necklace and went off down the stairs. Miss Cheung followed him and at this stage she was bleeding from the mouth.

3. A Mr. Leung Kim Hung gave evidence that he was coming up the stairs at this stage and noticed a person run down the stairs past him. He was wearing what Mr. Leung described as "a grey jacket or ... white upper garment". Miss Cheung told him that she had been robbed and he then set off in pursuit, also shouting "Robbery". He was joined in this by another passer-by, Mr. Chan Kim Hung, who said that the person they were chasing after was wearing a "silvery grey shirt". They chased the man as far as the Dor Hing Restaurant in Wu Hu Street and there Mr. Leung telephoned the police. However, before the police arrived, the man re-emerged from the restaurant and was followed by Mr. Leung and Mr. Chan. He walked along Wu Hu Street towards Ma Tau Wai Road and they kept behind him until eventually a party of police officers arrived and the man was arrested.

4. The sole question to be decided by the trial judge was that of identification. Miss Cheung identified the applicant at an identification parade held at Ho Man Tin Police Station on the 1st December 1988. She said that she identified him because of the scar on his hand and because of his age and his build. She also said that she remembered that he was wearing a "silky grey - very long shirt with white". Mr. Leung said that the light in the stairway was dim and he could only recognise the person who had robbed Miss Cheung by his clothing. Mr. Chan said the same. They were, however, quite insistent that they had followed to the restaurant the person who had come down the stairway to the restaurant and that he was the same person who had later emerged.

5. The other evidence relied upon for the Crown was a cautioned statement made by the applicant after his arrest at Ho Man Tin Police Station. The admissibility of this was objected to on the grounds that the applicant is a heroin addict and that he had been told he could not have any medical treatment for his addiction until he had made a statement. These allegations were enquired into by the trial judge and he found that the statement was a voluntary one and it was duly admitted.

6. The applicant himself gave evidence and said that he was in Wu Hu Street in order to take a public light bus to Kowloon City to buy heroin. He was assaulted and later forced to make a statement because he needed either heroin or methadone for his addiction. He agreed that at the time he was wearing a grey shirt.

7. The trial judge very carefully evaluated all this evidence and came to the conclusion that while the evidence of Miss Cheung alone would not be sufficient to justify a conviction, it was supported by the evidence of the other eye-witnesses who, while they did not see the face of the robber clearly, did identify him by his clothing. The clothing worn by a person under the circumstances here where there was an arrest within minutes of the offence taking place is clearly just as relevant as his facial characteristics. The judge was satisfied that the identification evidence, even without the cautioned statement, was sufficient to justify a conviction. We were also satisfied that taking the evidence as a whole this conviction was quite safe. The application for leave to appeal against conviction was therefore refused.

Sentence

8. The applicant also applied for leave to appeal against his sentence of four years' imprisonment. He did so out of time. There were no good reasons given by him for his failure to apply for leave to appeal against sentence within the time limit laid down. We were moreover of the view that it was an extremely lenient sentence. This was robbery at night time on a woman in a staircase in the course of which she suffered quite severe injuries. It was a cowardly attack and there was virtually nothing that can be said in the applicant's favour except that he was not armed with any weapon. This was a conviction after trial and the applicant had previous convictions, although not for robbery. The application for leave to appeal against sentence out of time was also refused.

Representation:

I.G. Cross, Q.C., & W.S. Cheung for Crown

Applicant, Chan Kwong Man, in person