R. v. Lau Tsz Ming

CACC000441/1991

IN THE COURT OF APPEAL

1991, No. 441
(Criminal)

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Coram: Hon. Penlington, Litton, JJ.A. & Wong, J.

Date of hearing: 26 February 1993

Date of delivery of judgment: 26 February 1993

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J U D G M E N T

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Penlington, J.A. (delivered the judgment of the Court):

1. The applicant, Lau Tsz Ming, was convicted by Deputy Judge Jerome Chan and a jury on the 22nd August 1991 on a charge of robbery and was sentenced to nine years' imprisonment. He applies for leave to appeal against both conviction and sentence.

2. Legal aid has been refused and we do not have formal grounds of appeal. We have however considered the summing-up of the trial judge and are in no doubt that he went into all the evidence in detail and with great care.

3. The robbery occurred in a jewellery workshop and there were four victims two of whom were injured. There were also four robbers but none of the victims identified the applicant. They were asked as to the height of the robbers but none said any of them was unusually tall. It was then put to them that the applicant is very tall and they would have noticed that fact. That was also submitted to the jury who saw the applicant in court.

4. It was only on entering court today and seeing the quite unusual height of the applicant that we had any reason whatever to doubt the safety of this conviction. The applicant is of a height such that if he was one of the robbers one would have expected the witnesses to have noticed it and said so in evidence. It has however been pointed out to us by Mr. Saw for the Crown that the offence was committed in May 1990 whereas the trial was in August 1991. The applicant was born on 8th September 1971 and was therefore about 18½ years old when the robbery took place. At that time one would have expected that he had ceased growing nevertheless there was a possibility that he did increase in height between the date of the offence and the date of the trial. The applicant was recorded as being 6 feet and 1½ inches in his bare feet on arrest the day after the robbery. We have considered this aspect with some anxiety but this question was put to the jury by the trial judge in a manner which cannot be criticised in any way. He said specifically:

"you may come to the conclusion that this is sufficient (i.e. his height) to leave a reasonable doubt in your mind that you feel unsafe about your conclusion as to the guilt of the accused, and that of course if you come to that conclusion, then you must give him the benefit of the doubt and acquit him of the offence."

That is a perfectly fair and proper direction to the jury and it was a matter for them to decide.

5. As far as the rest of the evidence was concerned it was abundantly clear and was not challenged that on the 23rd May 1990 there was a robbery at a premises in Mody Road occupied by a jewellery manufacturer. The robbers were acting on information supplied by a person who had intimate knowledge of the premises. An amount of jewellery valued some $8.3 million was stolen. The applicant was arrested very soon afterwards. Most of the property was recovered and on one of the objects was his fingerprint. Gold-dust similar to that in the premises was found in his clothes. He gave what can only be considered a full confession statement to the police on his arrest which however he disputed on the ground that it had been obtained by violence. The trial judge however ruled that the statement was voluntary and allowed it to go before the jury for their consideration. The applicant gave evidence himself in which he explained the presence of his fingerprint on the jewellery box and the gold-dust in his clothes. He said that he had been invited by another man to help him in packing what he thought was artificial jewellery and he did not know that this was in fact real jewellery; he certainly had no knowledge that it was stolen. Again these were matters which were very fully and carefully put before the jury by the trial judge in a manner which cannot be faulted.

6. The conviction was not unsafe or unsatisfactory and the application for leave to appeal against conviction is refused.

Sentence

7. The applicant was a young man of 18 at the time of the offence, 19 at the time of the trial. He had a previous conviction for dishonesty and had been placed on probation. He comes from an unfortunate background in that his mother deserted his father shortly after birth. His father suffers from diabetes and we are told, and accept, that the father has now got into trouble and is serving a term of imprisonment in an effort to obtain money for the applicant. Nevertheless this was a serious robbery of a jewellery workshop in which two innocent employees were quite seriously injured, albeit there is no evidence that this was done by the applicant himself. Weapons were carried and the implication must be that he knew weapons were likely to be used. It is a severe sentence but it is not one which we consider to be such as to warrant our intervention. The application for leave to appeal against sentence is also refused.

Representation:

Applicant, Lau Tsz Ming, in person

Mr. D.G. Saw for Crown