R. v. Lau Wai Man

CACC000303/1995

IN THE COURT OF APPEAL

1995, No. 303

(Criminal)

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Coram: Hon. Power V.-P., Liu & Ching JJ.A.

Date of hearing: 31 August 1995

Date of judgment: 31 August 1995

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J U D G M E N T

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Ching JA (delivering the judgment of the Court):

1. The applicant in this case was convicted of three counts of robbery. The first charge is in relation to a robbery that was alleged to have occurred at 6.30 in the morning of the 25th June, 1994. The second charge related to a robbery alleged to have taken place at 4.40 in the afternoon of the 26th day of June, 1994, and the third related to a robbery said to have taken place on the 13th July, 1994, at 7.55 in the morning. In each case the robbery is said to have taken place in a lift. In the first and third charges the lifts were at the Lam Tin Estate and in the second in the Tak Tin Estate.

2. After the applicant was arrested, he gave three cautioned statements which amounted to confessions that he was the robber. In the third statement, which relates to the third charge, the circumstances he describes were substantially the same as those given by the victim of the robbery.

3. The applicant was represented in the court below and objections were taken to the admissibility of those statements. One of his grounds of the application before us was that the statements should not have been admitted because he was coerced into making them. However, nothing has been put before us which would enable us to hold that the judge below was wrong in admitting them. Once it is accepted that the statements were admissible, the judge below was entitled to put such weight on them as she thought fit. In the event, she appears to have accepted them and convicted the applicant and that really is sufficient to dispose of this application.

4. The applicant however mentioned two other points. The first is that the victim in the third charge gave a statement to the police in which she stated that the robber had a tattoo on his left hand. The applicant points out that he has none. At the trial, the victim in that charge gave evidence that in this respect she may have confused the robber with a person who came to her assistance. The judge found that there could have been marks such as a washable transfer or ink marks which would account for the mistake. Most importantly, however, that particular victim had been robbed before and she gave evidence that she was therefore careful to identify or to take note of the features of the robber and subsequently she identified him. Complaint has made about the manner in which the identification parade was held and in which she identified him but in the end the judge below accepted her evidence that she had identified the applicant by his face and not by the tattoo on his hand. It was not a case of a fleeting identification.

5. The other point that the applicant raises is that he had an alibi witness, namely his brother, who gave evidence that he usually went home between 9 and 10 pm in the evenings and would leave at about 8.15 on the next morning. He said that the applicant had been home. The learned judge below held that the alibi evidence related only to the third charge but in this she clearly was wrong since the evidence would presumably have covered the time of the offence set out in the first charge. However that may be, the judge saw and heard the alibi witness and she rejected the evidence of that witness. We are not in a position to interfere.

6. In the result, therefore, this application must be dismissed.

Representation:

Mr A.A. Bruce, S.A.C.P. for Crown/Respondent

Lau Wai Man, the applicant in person