HKSAR v. Pang Chung

CACC000281/1999

CACC 281/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 281 OF 1999

(ON APPEAL FROM DCCC 320/1999)

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Coram: Hon Mayo VP, Leong JA and Ribeiro JA in Court

Date of Hearing: 26 May 2000

Date of Judgment: 16 June 2000

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of one count of robbery and one count of being in Hong Kong without the permission of the Director of Immigration after a trial in the District Court before Deputy Judge Thomas. He was sentenced to a total of 7 years imprisonment. He seeks leave to appeal against his conviction on the robbery count and the sentence imposed.

2. The facts were simple and straightforward. In the early hours of the morning of 16 December 1998 the victim who was a watchman aged 72 of commercial premises was awoken from his sleep by two men entering his bedroom. He was manhandled and bound up. During this assault one of his teeth was dislodged. He was aware that his possessions were being ransacked. After a time both men left. After a few hours he was able to untie himself and make a report to the police. He made a search and ascertained that the money referred to in the charge namely $1,340 was missing.

3. As it happened two of the notes making up these moneys consisted of old $10 banknotes. One having been issued by the Hongkong and Shanghai Banking Corporation Limited as it was then known and the other by the Chartered Bank which is the name under which The Standard Chartered Bank used to conduct its business.

4. Police officers during the course of the following morning came upon the applicant and his co-defendant at the trial below. They were unable to produce valid identity cards and admitted that they were illegal immigrants. They were searched and money was found on them. The Chartered Bank $10 banknote was secreted on the applicant's person. The men were found about 30 minutes walk from the warehouse where the robbery took place. The applicant's co-accused pleaded guilty at their trial.

5. The applicant maintained his innocence. He gave evidence at his trial and said that he had received the note when he had exchanged moneys.

6. The Judge after carefully evaluating the evidence gave reasons why he felt able to draw an irresistible inference that it had indeed been the applicant who had taken part in the robbery. Amongst the reasons given was the fact that the applicant had made conflicting statements to the police. The Judge did not attach much importance to the fact that the notes had been folded in an unusual way.

7. In his first and second grounds of appeal the applicant contends that it was unsafe for the Judge to accept the testimony of the victim concerning his identification of the Chartered Bank $10 banknote. The reasons he advances are not convincing and in no way undermine the Judge's careful analysis of the evidence.

8. In the third ground the applicant makes criticisms concerning the victim's evidence. He refers to the fact that initially he told the police the money had been kept in a drawer in the television cabinet whereas in court he said it had been kept in a filing cabinet. He then went on to criticise the victim for being unable to identify the robbers having regard to the fact that if the television set had been on there would have been sufficient illumination to enable him to do so.

9. In the fourth ground he refers to the police evidence that when he had been arrested it was approximately 30 minutes walking time from the scene of the robbery. He pointed out that with what he claims was the time available to him it would have been unlikely that he would have committed the offence.

10. Before us he repeated the criticisms he had made concerning the victim's identification of the notes and claimed that he was a dishonest and unreliable witness. He also criticised the Judge for accepting this evidence. He contended that people in Shenzhen may be in possession of such $10 banknotes. He also claimed that the Judge had failed to have proper regard to the inconsistency in the victim's evidence.

11. What is clear is that all of these matters either were or should have been before the Judge. It is also clear that the Judge gave careful consideration to all of the evidence which was before him. None of the matters which have been raised by the applicant persuade us that we would in any way be justified in interfering with the Judge's findings of fact. After all he did have the advantage of seeing and hearing all the witnesses who gave evidence. In this connection it should be added that the reasons for verdict were a model of clarity and coherence.

12. There was sufficient evidence for the Judge to draw the inferences he did and find the charge proven. The conviction was in no way unsafe or unsatisfactory and the application for leave to appeal against conviction is dismissed.

13. So far as sentence is concerned the Judge placed some reliance on the case of R v OI HO Pa-yee (unreported) Crim. App. No. 480 of 1993 where a similar type of attack was made upon a 78-year old lady and the court sentenced the defendant to 5 years imprisonment after a plea of guilty.

14. The main mitigation advanced related to the applicant's family circumstances. His wife is suffering from schizophrenia and they have a young son who suffers a heart condition which requires expensive surgery.

15. Be that as it may this was a very serious offence. The Judge was fully justified in passing the sentence he did. The application for leave to appeal against sentence is also dismissed.

Representation:

Miss Winsome Chan, SGC, of the Department of Justice, for the respondent

Pang Chung, applicant in person