The Queen v. Chan Tai-wai

CACC000315/1983

IN THE COURT OF APPEAL

BETWEEN

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 1st November 1983

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JUDGMENT

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Silke, J.A.:

1. The applicant - the third defendant at trial - appears before us seeking leave to appeal against his conviction - the conviction being one of robbery - and the sentence of seven years' imprisonment passed upon him.

2. In the light of the grounds of appeal which he had filed, we thought it right that we should have a full transcript of the evidence and we had the benefit of that. Also we had the benefit of the various references to the summing-up, and to the evidence, which the applicant has made to us.

3. The Crown's case was that, on the 2nd June 1982, a store, the Chung Kee Store, in Hoi Pa Sheung Street, Tsuen Wan, was run by two persons called Wong and by their children. Mr. and Mrs. Wong and the family resided in the rear portion of the store which was a very small one, being nine-foot by ten-foot in size. At about half past eleven in the evening Mr. Wong saw some men outside, became suspicious of them and ran into the rear portion. He was chased by these men. A beating was administered to both Mr. Wong and Mrs. Wong. A knife and a chopper were picked up by the men. The wongs were threatened with the weapons. They were tied up. The store was searched and the person of Mr. Wong was searched. Money and his "Seiko" watch were taken by force.

4. In some fashion the police became aware of an incident taking place and approached this shop whereupon a lookout warned the persons inside it. People were seen by police party to rush out of the premises. They were chased by several different policemen - P.C. 3315 in particular being the one who chased the applicant. The applicant was apprehended as was a man in a blue T-shirt and as was a third person.

5. At this point in the general evidence there arose a discrepancy and that discrepancy was brought clearly to the notice of the jury. For it is the recollection of Mr. and Mrs. Wong that only one person, the blue: T-shirt man.- the 1st defendant - was brought back to the little shop but the evidence of the policemen was that three men were brought back to the shop, there identified and then brought to a police station. The Judge left this to the jury as is proper for it is a jury's province to decide the facts, and, in coming to their conclusion, this is a matter which it would be necessary for them to take into consideration.

6. It was the evidence of P.C. 3315 that when he apprehended the applicant with the assistance of the police driver, P.C. 677, he carried out that which he described in his evidence as a "cursory search" for offensive weapons, in other words, not a full search. When he brought him back to the scene of the incident he did carry out a full search and in his trousers pocket found a "Seiko" watch and that "Seiko" Watch was owned by Mr. Wong and had been taken by the robbers.

7. In the police station, the applicant made a cautioned statement that placed him at the scene of the robbery although it attempted to exculpate him from the robbery itself.

8. It was the general defence that an incident had taken place but that it was an assault upon the Wongs instigated by another person for motives of revenge or "protection" or some such. There had been no intention to rob. It was, in particular, the defence of the applicant that he was not there at all and that he was arrested while he was running away from the police. He ran for the reason that he had been carrying out drug transactions in the area of Market Street. It was further his case that he had been fully searched at the time of apprehension and that no watch was found upon him.

9. The 1st defendant gave evidence in his own defence and did not in any way implicate the applicant. Indeed, he was cross-examined about a reference in a statement he had made to one "Ah Wail". He said that "Ah Wail" was not the applicant.

10. The 2nd defendant gave no evidence. As have said, the applicant himself gave evidence to raise the defence that he was not present.

11. The trial judge, in a very careful and lengthy summing-up, dealt with all matters of law and all matters of fact in extenso. The full defence was laid before the jury: both the general defence of an assault rather than a robbery and the particular defence of the applicant that he was not involved in anything at all.

12. He advised the jury that they could, if they had doubts about an actual robbery taking place, have convicted those whom they thought perpetrated the assault upon the Wongs of the offence of common assault. He advised them that if they thought that the property found on each of the defendants was stolen - for they all had some items said to be taken from the shop - that they could consider whether or not there was an offence of handling stolen property.

13. This applied particularly to the applicant for in his statement, which was before the jury and which was for them to weigh, he had said to the others in the shop "Don't do the robbery" and he had to an extent been forced to put the watch in his pocket by one of the other accused.

14. The summing-up was an impeccable one and all the issues were left to the jury. It had been suggested by the applicant that there was bias but in no manner could any such bias be read from the contents of the summing-up.

15. The issues upon which we have been addressed today were the very issues which were left to the jury. The jury was the judge of facts. They clearly rejected the applicant's evidence and they clearly rejected the suggestion that he had attempted to avoid a robbery taking place and they were entitled to do so.

16. The application will be refused.

Representation:

Applicant in person.

K. Oderberg, Esq. for Crown/Respondent.