R. v. Chan Wu Nam

CACC000298/1996

IN THE COURT OF APPEAL

1996, No. 298
(Criminal)

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Coram : Hon. Mortimer, Ching, JJ.A. & Gall, J. in Court

Date of Hearing : 27 November 1996

Date of Judgment : 27 November 1996

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court) :

1. The applicant faced one charge of robbery of a container truck and its load of electrical appliances worth $1,800,000. It was alleged that he did this on 3rd February, 1994, with other men including one called Long Tin Kwok. He was convicted and now seeks leave to appeal against that conviction. There is no doubt that the robbery occurred. The only question before the Judge was whether the applicant was a party to it.

2. At the trial the only evidence connecting the applicant to it was the evidence of Long Tin Kwok. This man had a criminal record for robbery. He had been charged with this offence and had been put upon trial but he failed to answer to his bail during the hearing. After he was re-arrested he changed his plea and offered himself as a witness against the applicant. He gave statements to the police at various times parts of which were contradicted by his evidence in the trial and other parts of which were contradicted by subsequent statements. By the time he gave that evidence he had been convicted and was awaiting sentence. In contrast to this, there is nothing known against the applicant. The applicant did not give evidence at the trial but called an alibi witness who said that on the day in question the applicant was playing mah-jong with him. This witness was not approached to give evidence until 18 months after the robbery. The Judge rejected the evidence of this witness and accepted that of Long Tin Kwok.

3. A particular point put to us was that the witness Long Tin Kwok had mentioned a person called "Ah Kit" in his statements as being involved in the robbery but that he withdrew that allegation in his evidence. During his evidence he was asked a question,

"It seems if he said, 'It's these goods we are after' that does suggest he's thinking of stealing them, doesn't it?"

and the answer has originally interpreted was, "Ah Kit".

4. Eventually he said that he did say "Ah Kit" but had meant to say "To rob it." The words in Cantonese could have been very close. The argument is that the witness was falsely attempting to protect Ah Kit and was therefore lacking in creditworthiness. The Judge decided as a Chinese speaker and having listened to the tape recording that the witness had in fact said "That is to rob." We simply say that the Judge was perfectly entitled to listen to the tape and to ascertain what in fact had been said. We see nothing in the point.

5. No questions of law are involved in this application. The grounds of appeal attack the Reasons for Verdict on the basis that the Judge was wrong in his assessment of the witnesses and that his judgment is therefore unsafe and unsatisfactory. Another point was that the Judge did not incorporate into his Reasons for Verdict the factors which he took into account in believing one and disbelieving the other. We do not consider that in every case the Judge must record matters of that nature. It is basic that it is not for this Court to substitute its own view for that of the Judge. The Reasons for Verdict show that he considered all relevant matters and gave himself the necessary warnings as to the evidence of Long Tin Kwok. It has therefore not been shown to us that he could not properly have come to the conclusions to which he did come and the application must therefore be dismissed.

Representation:

Mr. A.A. Bruce, Q.C., S.A.C.P. & Ms. A. Chan (Crown Prosecutor) for Crown/Respondent

Mr. Jerome Matthews & Mr. Raymond Yu (M/s. Wong & Partners) for the Applicant