Chan Hing Wah v. The Queen

CACC000418/1972

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 418 OF 1972

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Coram: Rigby, C.J., Huggins and Pickering, JJ.

Date of Judgment: 8th November, 1972

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JUDGMENT

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Rigby, C.J.:

1. This is an application for leave to appeal against sentence.

2. The appellant was convicted of the offence of robbery preferred against him and upon conviction he was sentenced to two years' imprisonment. He has filled an application for leave to appeal against that sentence.

3. Looking at the facts of the case this court has had some doubt whether, having regard to the somewhat ambiguous nature of the evidence given by the complainant herself, the charge of robbery of $50 as averred in the particulars of the offence, had been sufficiently made out.

4. The complainant was a female. It was her evidence that as she came out of the lift of the premises where she was living, she saw two males at or near the entrance to the lift. She was asked in her evidence, "Did they do anything?" And she replied, "They did not. I knew they were bad people, so I voluntarily took out $50 and gave it to them. They pushed me into the lift again so I knew they were bad."

5. If, indeed, the facts had simply been that having come out of the lift she saw two suspicious looking characters outside and, suspecting that something sinister might happen to her, she voluntarily took out $50 and handed it to them, I think it clear beyond doubt that that would not amount to the offence of robbery. The evidence, however, does go somewhat further than that because she then goes on to say that she was pushed into the lift - pushed back into the lift - and she says at some time, and she was not quite clear at what time, a knife was produced. She was then asked, "What gave you the impression they were bad people?" And she answered, "They pushed me into the lift." She was then asked, "Was anything said to you?" And she replied, "No, nothing was said ..... By that action I knew they were bad people so I said, 'I will give you money.'"

6. It would appear that they then attempted to snatch her wrist-watch off her wrist but they failed in so doing and they then left the premises and ran away.

7. Looking at the evidence as a whole we think that there was sufficient evidence from which the learned judge could properly draw a clear inference that the female complainant was in fact forced to hand over the money which she did, and quite clearly on the evidence there was then an unsuccessful attempt to snatch her wrist-watch. Having left the premises the two assailants ran away together, but at some stage they split up and went in different directions. At the corner of the road whilst they were still running together these two fugitives were seen by a police officer who proceeded to chase them, and when they split up he chased one of them whom he succeeded in catching. The only question in issue was whether the person whom he in fact apprehended was one of the two assailants who had robbed the female complainant of her money.

8. We are quite satisfied on the evidence that there could be no confusion and that the two persons who robbed this woman were in fact kept in sight all the time, and that the appellant was in fact one of those two persons. The appellant has himself said in his evidence that at the time he was passing by these premises and he himself saw a woman inside the building being robbed by two persons of the sum of $50 and he in fact described the colour of the shirts that those two persons were wearing. His defence was that he then ran after the two robbers and was mistakenly arrested by the policeman as being one of the two persons involved. That, however, was not the defence which he put forward at his trial. The defence which he put forward at the trial was this. He was asked a question by counsel in cross-examination, "Are you saying it was not you but the other man who took the $50?" and he replied, "Yes." He was then asked, "You were with him?" and he replied, "Yes, what I meant was, the woman handed him the money and it was that other one who tried to get her watch." Quite clearly, that is an admission that he was one of the two persons who approached this woman but he was not the one who took the $50 from her, nor was he the one who tried to snatch her watch. As I have said, he now seeks to put an entirely different story before this court.

9. The application which he makes before this court is one for leave to appeal against the sentence of two years' imprisonment which was imposed upon him. He is 20 years of age and he has a number of previous convictions. In April, 1970, he was convicted on four charges of robbery with aggravation and sent to a training centre.

10. There are no grounds for interfering with the sentence of two years' imprisonment imposed upon him and his application for leave to appeal against sentence is accordingly dismissed.

11. However, before we finally part with this case, we would wish to refer to the Reasons for Sentence given by the learned trial judge. In those reasons he has referred to the facts of the case by saying, "The facts sufficiently appear from the statement filed in court by the Crown". With great respect to the learned trial judge that seems to us a thoroughly unsatisfactory and, indeed, slovenly way in which to refer to the facts of a case which had been tried before him. There can be no justification for referring to the statement filed in court before the trial ever began; if he sought to refer to the facts it was essential for him to refer to the facts as they were given in evidence before him and not by reference to the contents of some statement which may have been made to him before the facts were ever disclosed in evidence.

Representation:

Appellant in person.

Duckett, S.C.C. for Crown/Respondent.