The Queen v. Cheng Yiu Kuen

CACC000017/1988

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Fuad, V.-P., Hunter, J.A. & Macdougall, J.

Date of hearing: 24th June 1988

Date of judgment: 24th June 1988

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J U D G M E N T

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Hunter, J.A.:

1. The applicant Cheng Yiu Kuen seeks leave to appeal against his conviction on 7th January 1988 by H.H. Judge Longley of one charge of robbery. The robbery alleged took place on 5th June 1987 at Kam Fung Apartment, Room 1, 2nd Floor, 385 Nathan Road when together with two other persons he robbed Sun Chi Hung of HK$2 500 one 'Tudor' watch and one gold finger-ring. That was the charge. The sole evidence against him was given by the victim, Mr. Sun Chi Hung. The question at the heart of the case and of this appeal was the credibility and reliability of Mr Sun as a witness.

2. The story that he gave to the court was not an attractive one. He is the proprietor of an apartment house. He said that in April 1997, a man he called "Man Hung" on several occasions brought a prostitute who he named to that house. She was apparently in serious financial difficulty, as a result which Mr. Sun lent her HK$1,000 "Man Hung" undertook to guarantee the loan. She said she would repay it in a day or so, and indeed repaid about HK$300 quite soon. She then stopped. She also stopped coming, to the apartment house. In May, Man Hung and the defendant came to the apartment house. "Man Hung" enquired whether the girl had repaid and was told she had not. He said he would speak to her. On 5th June, as a result of personal contact, the girl, paid Mr. Sun direct the outstanding HK$700.

3. That same evening, at about 7 pm, "Man Hung", the defendant and a third man came to the apartment house. Mr Sun was pushed into, and in fact virtually imprisoned, in a room there. The defendant pulled out a 12" long knife. Mr Sun was asked whether the girl had repaid the loan and he said she had. Furious complaint was then made that this had happened. It was said that they were obtaining a lot of money from the girl but as she had repaid the loan that source of income was at an end. They wanted compensation. They wanted HK$15,000. Mr Sun remonstrated but the defendant held the knife against his throat and to demonstrate its sharpness sliced through a towel. Mr Sun no doubt in considerable fear, agreed to pay HK$10,000. He only had HK$2,500 on him and that was taken. By way of security as it were, they also insisted upon taking his. Watch and his jade ring when he had difficulty in taking the ring off, this defendant threatened to cut his finger off. He was then reminded before this, party left that he owed them HK$7,500 and that this had to he paid by the following Monday. Before leaving, Mr Sun said this defendant stood holding the knife and told Mr Sun that if he called the police he would put the whole of Mr Sun's family to death. After some hesitation the next day Mr Sun reported the matter to the police, and arranged to meet the defendant on the Monday as he thought to retrieve his watch and his ring. This defendant met him there and told him he had not got the watch and the ring with him. At that point the police stepped in and arrested him.

4. The judge very carefully directed himself in relation to Mr Sun's evidence. He considered in particular the lengthy cross-examination as to credit which had been conducted about his activities in the apartment house and his relationship with prostitutes. His conclusion was this:

"Apart from the occasions when he was asked about prostitution activities at Kam Fung Apartment, where he was clearly uncomfortable, Mr Sun appeared to me to be an open and honest witness upon those evidence I could rely".

5. He dealt carefully and fully with all points made to him by Mr Wong in his final speech, as grounds for rejecting Mr Sun's evidence. I need hardly say that his evidence stood alone. Although a detailed defence had been put in cross-examination of Mr. Sun, no word of evidence was volunteered by this defendant In effect Mr Wong has repeated to this court the final speech he made in the court below. His efforts failed in the court below. The judge accepted Mr Sun, and there is no possible basis on which that conclusion can either he criticised or challenged in this court.

6. This application must be dismissed.

Representation:

Philip Wong (M/s Ricky Ma & Co) for Applicant

Miss L M A Shine (Crown Prosecutor) for Crown