HKSAR v. Chan Kwok Leung
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CACC000218/1997 IN THE COURT OF APPEAL 1997, No. 218 ______________
______________ Coram: Hon. Power, V.-P., Mayo, J.A. and Stuart-Moore, J. in Court Date of hearing: 13 November 1997 Date of delivery of judgment: 13 November 1997 ______________ J U D G M E N T ______________ Mayo, J.A. (giving the judgment of the Court): 1. The Applicant seeks leave to appeal against his conviction for robbery and against the sentence of 6 years' imprisonment imposed upon him for the offence. 2. The Applicant was tried in the High Court by Deputy Judge Lugar-Mawson and a jury. 3. According to the prosecution case the Applicant was one of a group of men who entered commercial premises at Kwun Tong on the morning of 25th January 1992. 4. There was no dispute that the robbery took place. The only issue which was before the court was whether the Applicant was one of the men involved. 5. There were four people in the premises at the time of the robbery. Only one of the witnesses Ms Yu was able to identify the Applicant. 6. The Judge gave detailed Turnbull directions and related Ms Yu's evidence to the surrounding circumstances. Ms Yu had been speaking on the telephone when the men had entered the premises. One of the men had come over to her and had told her to go to the store room where the victims were tied and gagged. 7. She said that she was able to remember the man's appearance. She had been able to pick him out at an identification parade held some 47 days following the incident. She was never seriously shaken in her evidence. She did however state that she would not be able to identify the man at the time of the trial as the offence had occurred 5 years previously. The reason for the delay was that the Applicant had failed to comply with the terms of the bail which had been granted to him. 8. The Applicant did give evidence but was unable to say where he had been on the morning in question. This was not particularly surprising as nearly six weeks had elapsed from the date of the offence to the date of his arrest. 9. Although the Applicant has lodged fairly lengthy grounds of appeal they are couched in vague and imprecise terms. What they really boil down to is that in his opinion there was insufficient evidence to support his conviction. 10. Before us he complained of unfairness. He said that the exhibits didn't implicate him. In particular he referred to the wristwatch which he was wearing. He claimed it proved nothing. However it had been prejudicial to him. The fact that one of the victims claimed it was his didn't take matter any further. There was no proof that the watch was his. The victim hadn't originally said that his watch had been stolen. It could have been another watch. 11. The watch was of an unusual type and this was a matter which was put before the Jury. 12. The second complaint was that no reasons were given by the Judge for ruling the statement which he made to be inadmissible. The answer to this is that there is no requirement for the Judge to do so. The Applicant further complained that notwithstanding this the police officer who had arrested him had been permitted to give evidence against him. 13. The fact that the statement had been ruled to be inadmissible does not preclude the police officer taking the statement from giving evidence at the trial. 14. The third complaint relates to the identification parade. He said that he had objected to taking part in it. It would appear however that this issue was never raised at the trial. It is true that the Applicant did complain about irregularity to the inspector. This evidence was all before the Jury and they appeared to have accepted the evidence of the inspector rather than the evidence of the Applicant. He further complained that inspector Chan had not been called to rebut the evidence he had given in this connection. 15. This may be so. The jury however were apparently not prepared to accept the Applicant's testimony. 16. His fourth complaint was that the Judge's summing-up was insufficient. In particular he referred to the absence of directions given concerning the drawing of inferences. 17. It is true that no directions were specifically given on this. The Applicant was however unable to refer to any prejudice he had suffered as a consequence of this. This case was almost entirely dependent upon Ms Yu's identification of him and this was not a matter which was dependent upon the drawing of inferences. 18. There is no merit in any of the matters which have been raised by the Applicant. 19. There was clearly sufficient evidence for the case to go to the jury. The Judge emphasised the need for the jury to be sure that the Applicant had indeed been one of the men involved and we can see no justification for interfering with their verdict. 20. The conviction was neither unsafe nor unsatisfactory and this application is dismissed. Sentence: 21. This was a serious robbery. The Applicant was armed with a lethal knife. The victims were tied and gagged. 22. Six years' imprisonment was neither manifestly excessive nor wrong in principle. 23. This application is also dismissed.
Representation: Mr. Wayne Walsh, SADPP (Ag.) (D.P.P.) for Respondent Chan Kwok Leung, Applicant in person Applicant's application for leave to appeal to Court of Final Appeal dismissed by Appeal Committee of Court of Final Appeal dismissed. Please refer to FAMC4/1998 dated 25 May 1998 |