R. v. Cheung Wai Yip

CACC000314/1996

IN THE COURT OF APPEAL

1996, No. 314

(Criminal)

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Coram: Hon Nazareth V.-P., Mortimer and Mayo JJ.A. in Court

Date of hearing: 10 December 1996

Date of judgment: 10 December 1996

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant applies for leave to appeal against his conviction for robbery. The facts are comparatively simple. Early in the morning of 22 August 1995 Madam Cheung was standing at the junction of Canton Road and Hamilton Street. A man grabbed hold of her and forced her to board a white saloon motor car. Another man who was in the driving seat drove off with her and the man. She was then relieved of $400 and her valuables such as a gold necklace, a gold wrist chain and two rings. She was blindfolded and her wrists were secured by adhesive tape. Some minutes later she was ejected from the car. At that time the car was at Ki Lung Street, Mongkok. After receiving medical treatment for the relatively minor injuries she sustained Madam Cheung made a report to the police.

2. At the time when Madam Cheung was attacked by the man an independent passer by saw the incident and made a report on his portable telephone to the police. He described what he saw and gave a description of the car in question although he was unable to give police the registration number of the car. The car was a white Daihatsu saloon car. The police later that day contacted the other man who appeared as a defendant in the trial below who was the registered owner of a white Daihatsu saloon car and obtained a statement from him and from his younger brother who was the actual owner of the car.

3. This other man made a detailed cautioned statement to the police in which he admitted participation in the offence. He also implicated this applicant. The police made inquiries of the applicant and he in turn also made a cautioned statement in which he admitted the offence.

4. At the trial before Sweeney DJ the main issue was whether the statements had been made freely and voluntarily. In lengthy reasons for verdict the judge gives reasons why he was satisfied at the appropriate level that both statements had been made freely and voluntarily and why he was prepared to admit them as evidence. He also gave detailed reasons why he was satisfied that the contents of the statements were true.

5. In the main trial neither defendant gave evidence. The applicant called his sister to give evidence to the effect that he was at Chung Hom Kok at the time of the offence. The judge was however satisfied that on the evidence the sister might well have been mistaken on this.

6. The main complaints made by this applicant in his grounds of appeal are that there was no identification parade and that his statement had been extracted from him by the police by the use of force and threats.

7. As to the first complaint there was no identification evidence against the applicant. As to the second complaint this was an issue which was considered very carefully by the trial judge.

8. The applicant did not add anything of significance before us. This conviction was in no way unsafe or unsatisfactory and the application is dismissed.

Representation:

Mr I.G. Cross QC and Ms Agnes Chan for Crown Prosecutor

Cheung Wai Yip - Applicant in person/present