The Queen v. Chan Man Wai and Others

CACC000346/1989

BETWEEN

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Coram: Sir Derek Cons, Ag. C.J., Hunter & Macdougall, JJ.A.

Date of hearing: 18 April 1990

Date of delivery of judgment: 18 April 1990

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JUDGMENT

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. The three Applicants were convicted by a jury before de Basto, J. of ,  two robberies. They were sentenced to imprisonment in total respectively for nine years, eleven years and eleven years. All three seek leave to appeal against such sentences and we shall turn to that later. For the moment we are only concerned with the 3rd Applicant. He appears in person, seeking leave to appeal against his conviction.

2. The two robberies of which he was found guilty both occurred in the small hours of the 2nd November, 1988. The first victim was a gentleman on the beach at Repulse Bay. He was at the time talking to a lady. He was struck from behind on the head with something that was subsequently shown to be the imitation gun carried by one of two men who had come up behind him. The other man was holding a knife. The men relieved him of $1,200 in cash and a wristwatch.  They allowed him to keep a gold chain which he said had sentimental value. The victim said that the men acted very politely, and that they even apologised, explaining that they were poor and needed money. After they left it sounded as though they drove away in a lorry.

3. At the trial there was no dispute that the robbery had occurred as the victim said. So the question was simply whether the 3rd Applicant was one of the two robbers. Eight days later the victim picked him out on an identification parade.  The identification was supported by the fact that the watch stolen from him was found later that same morning upon the 3rd Applicant, when the lorry in which the Applicant was travelling was stopped on the Shek O Road. In the lorry was also found a knife.

4. The second robbery occurred at Taikooshing. A gentleman was returning to his home there after an evening out with a friend. He was confronted by two men, one of whom had what seemed to be a gun. He was pushed over and relieved of $4,600. He too picked out the 3rd Applicant on an identification parade but he was, he said, not absolutely sure. He thought that the 3rd Applicant looked very like the culprit.

5. That was the evidence before the jury, and on that evidence they unanimously found the 3rd Applicant guilty of both robberies.

6. The grounds of appeal, which were drawn by the Applicant himself, set out six complaints. The first suggests that the judge failed to take account of the time factor, by which, "according to the witness's testimony, there was evidence sustaining (the Applicant's) alibi". However no question of alibi arose at the trial, because the 3rd Applicant did not give evidence or call any witnesses on his behalf.

7. The second complaint is that "the witness amended his statement". We understand this to refer to the victim of the Repulse Bay robbery, whose evidence as to the time of the robbery did not accord with what he had earlier told the police. The complaint is factually correct, but the judge drew this matter to the attention of the jury.

8. The third complaint is that "the witness made a mistake at the identification parade". This relates to the second victim. At the parade he said he could recognize the Applicant as it was he who searched him, but in evidence he said it was the man with the gun, i.e. the other robber, who did so.  But the judge referred to this as "a serious discrepancy" and invited the jury carefully to consider that aspect.

9. The fourth complaint relates to the constable who dealt with the exhibits. It is suggested that the judge did not point out to the jury that the constable improperly imputed to the 3rd Applicant ownership of articles which were not his. However, those articles played no part in the Applicant's conviction, so that, even if well founded, this is not a matter which would cause us to interfere.

10. The fifth complaint refers to an incident in the trial when the same constable is said to have spoken to the assistant to the prosecutor during the course of the trial, that is to say, during the course of the constable's evidence over an adjournment. A report was apparently made by the Applicant's counsel to the judge who took no action. We have no further details, but in view of the uncontroversial nature of the constable's evidence we cannot think the incident had any significant effect upon the trial.

11. The last complaint concerns again the victim at Taikooshing. Basically it suggests that the judge did not direct the jury as to matters in relation to that witness which he should have done, i.e. his unsureness of the identity of the Applicant coupled with the question who was holding the gun at the time. However, both of these matters were in fact drawn to the notice of the jury. In our view there was sufficient evidence of the identity of the 3rd Applicant in this robbery, if accepted by the jury, which clearly it was.

12. For these reasons the application for leave to appeal against conviction by the 3rd Applicant is refused.

13. We deal now with the applications in regard to sentence.               

14. Chan Man Wai, the 1st Applicant, was at the time of the offence, still not 21 years of age. He has a clear record. It is accepted that he was not shown to have knowledge that a gun or imitation gun was used. It also seems likely that he was influenced into taking part, at least to some extent, by the two elder men whose company he was keeping. In passing sentence upon him the judge expressly took into account his clear record and his age.

15. Choi Chau Keung, the 2nd Applicant, was the elder of the other two men, being just under 31 at the time. He has a record, now sometime ago, which the judge accepted as relatively minor. He is still single and lives with his parents who are engaged in the boat building trade.

16. The 3rd Applicant, Leung Wing Chiu, aged 23, has a record of robbery although it is now eight years ago.

17. We have heard counsel for the 1st and 2nd Applicants. The 3rd Applicant is still in person and has nothing to add to his written grounds. Counsel have referred us to several authorities and principles of sentencing. We have also had the benefit of a submission from counsel for the Crown.

18. In our view no criticism can be made of the general approach of the judge below to the question of sentencing, or to any particular approach, that is to say, we are not persuaded that he ignored any matter he ought properly to have taken into consideration.

19. Having said that we have nevertheless come to the view that overall the sentences were too heavy. Having regard to the whole circumstances, that is on one hand the actual circumstances of the two offences and the part played by each Applicant, and on the other the fact that there were two robberies which, although close in matter of time, were certainly not the same transaction, we think appropriate sentences would have been respectively totals of six years, nine years and nine years. Accordingly we allow the applications, treat the hearing as the appeals themselves and vary the sentences on each Applicant accordingly.

Representation:

John Wright assigned by D.L.A. for D1/A1.

Christopher Grounds (M/s. Walter Woo & Co.) for D2/A2.

Leung Wing Chiu D3/A3 in person.

G.E. Forlin, Crown Prosecutor for the Respondent.