The Queen v. Ho Kam Hung and Another

CACC000004/1991

BETWEEN

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Coram: Fuad, V.-P., Clough & Macdougall, JJ. A.

Date of Hearing: 16 July 1991

Date of Judgment: 16 July 1991

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the court):

1. The applicants Ho Kam Hung (D1) and Shum Che Wing (D2) appeared before Judge Longley in the District Court, charged jointly in the 1st Charge with attempted robbery. D2 was also charged with possessing an offensive weapon (a knife) in a public place (2nd Charge) and with possession of dangerous drugs (8th Charge). He pleaded guilty to the 8th Charge. Dl, who was a serving police officer at the time of his arrest, had to face the following additional charges: resisting a police officer in the due execution of his duty (3rd Charge) and four charges of giving false information (i.e. a false address) to four different pawnbrokers (4th to 7th Charges). D1 pleaded guilty to all the offences against the Pawnbrokers Ordinance.

2. After a trial, D1 and D2 were, on 14th December 1990, convicted on all the charges to which they had pleaded not guilty, and on the same day the judge imposed the following sentences:

3. Both the applicants now seek leave to appeal against conviction and D1 only against his sentence.

4. The three charges upon which the applicants were tried all arose out of an incident which occurred on 26th April 1990 in the car park of Tai Wai New Village in the New Territories. The victim of the alleged robbery was a Mr. Chan Shu Kwong (Pw1). He told the court that he had been working late on the night of 25th/26th April and, on his way home, at about 2:00 a.m. he parked his car in the public car park of the village. He got out of his car and opened the offside rear door to get something when a man rushed up to him and pointed a large knife at his waist. This man (who according to the prosecution case was D2) pushed him into the car onto the back seat, still threatening him with the knife, and got in beside him. The other rear door of the car was then opened and another man got in and sat next to the victim on the other side.  This man, according to the evidence, was D1. Thus Mr. Chan found himself sitting in the back seat of his car between D1 and D2.

5. After a third man had got into the car and sat in the driver's seat, Mr. Chan asked the men not to go too far since it was clear to him that all they wanted was money. One of the men asked Mr. Chan for the ignition key of the car but Mr. Chan was unable to find it. The men themselves were unable to find the key although they switched on the courtesy light inside the car to have a look. The men then found a bunch of keys on the victim's person but none of them would fit the ignition switch of the car.

6. Just then, an unmarked police car drove into the car park. The man in the driver's seat of the victim's car made off and is still at large. Police officers surrounded the car and after announcing themselves, ordered D1 and D2 out of the car. D1 tried to run away before he was handcuffed but he was restrained. He then struggled to prevent his hands being handcuffed behind his back. Dl told the police officers that he had merely driven the car and knew nothing at all abut the matter. D2 said words to the effect that this was the first time he had done such a thing.

7. D2 elected not to give evidence. D1 told the court that the third man had asked him to drive to the car park without telling him why. The third man waited in the car with D1 for the victim to arrive without saying anything. They then walked over to the victim's car together and when they reached it, the third man told Dl to get into the car. Still no explanation was given to him, but he got into the car as he was told and sat on the back seat, where the victim and D2 were already seated.

8. This is what the judge said about Dl's explanation for his actions that night:

"The first defendant's account for what happened that night is a remarkable one. It is implicit in his account that the third man, whom he says was called Ah Man, went to the carpark that night in order to commit this criminal enterprise. This man asked D1 to drive him to the carpark without telling him of this enterprise. He waited in the car for 5-l0 minutes with D1 for the victim to arrive without informing Dl of his purpose. He then went over to the victim's car with D2 without giving any explanation to D1 of what he or they were about to do. The victim's car was only 100 metres away and within Dl's sight. And yet when D1 approached the victim's car the third man did not try to conceal what he was doing from D1 but instead told Dl to get in the victim's car. Furthermore without any explanation from Ah Man as to why he should do so D1 got into the back seat of the car. Instead of getting into the front passenger seat which was empty D1 got into the rear seat where D2 and the victim were already sitting. I simply do not believe this account."

9. In his full and careful reasons the judge explained why he was satisfied that what had taken place was an attempted robbery. On the evidence he was entitled to accept, it could hardly have been anything else. And the judge was satisfied that D1 knew that the men outside were police officers when he first tried to escape and then resisted arrest. The judge also believed the evidence that it was D2 who used the knife to threaten Mr. Chan.

10. In his grounds of appeal filed on 28th May, Dl complained that the judge did not adequately consider his own testimony. He pointed out that since the third man, Ah Man, had been able to escape, had he himself been involved in the attempted robbery, he could easily have escaped too. He also suggested that the judge should not have accepted the evidence concerning what D2 had said upon arrest as this was prejudicial to him (D1). He contended that the judge had failed to assess the impact, upon his own defence, of the fact that D2 had declined to give evidence in court. He also said that the steps taken by the police officers in effecting his arrest left much to be desired.

11. There are no merits whatever in any of these grounds. Nor are we persuaded by anything Dl has said to us today that he was wrongly convicted on the 1st or 3rd Charge. We would mention that he told us that he was not fully responsible for his actions that night because he was under the influence of drink and drugs. This was not his defence in court.

12. D2's grounds of appeal were: "There are many doubtful points and procedural errors in the case." He did not elaborate on his assertion when invited to today. D2's convictions on the 1st and 2nd Charges are unassailable.

13. Both applications for leave to appeal against conviction are refused.

14. We have carefully listened to all that D1 has said about the sentences imposed upon him. We appreciate, of course, that he has lost a good job and that before the offences were committed he was of good character. On the other hand, a police officer who commits offences of this kind must expect to receive severe punishment. The individual sentences were not excessive in themselves, and it was right in principle to order the sentences on the 3rd - 7th Charges to run consecutively to the sentence on the 1st Charge. It cannot be said that the total term (6 years) is in any way excessive.

15. Dl's application for leave to appeal against sentence is refused.

Representation:

Ho Kam Hung, 1st Applicant in person

Shum Che Wing, 2nd Applicant in person

Mr. S.R Bailey (Crown Prosecutor) for the Crown