Chung Kwong-sum v. The Queen

CACC000448/1982

BETWEEN

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Coram: Roberts, C.J., Li & Silke, JJ.A.

Date: 27 October 1982

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JUDGMENT

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Silke, J.A.:

1. The applicant was convicted on the 7th of May this year of the offence of robbery and was given a sentence of 9 years' imprisonment. He was jointly charged with one CHAN Yuk-shu. He now renews his application for leave to appeal against his conviction.

2. It is clear from the evidence in the trial Court that there was a robbery in the Tokyo Therapy Massage Parlour. That was never really disputed. The issue was whether the applicant was one of the robbers.

3. Evidence was given by a taxi-driver, Mr. Pang, that he was driving along Chatham Road, that he was stopped by five persons whom he took into his taxi and very shortly after he had driven off he was stopped again at a police road block. This appeared to alarm his passengers who, according to him, all rushed out of his taxi by its three doors - the two rear and the one front. This, in turn, gave rise to suspicion in the police party manning the road block and the persons who left the taxi were chased. In the course of that chase, two police officers were called back and told to go to the taxi. As one of them approached it, a man was seen to leave it. The man, who walked away rapidly, was told to stop, he did not and ran to the central divider in the road. One constable thought he tried to get over that railing. The sergeant said that he hit a pillar. In any event he was caught. It was the applicant.

4. He was brought back and the taxi was searched.  A bag was found in the taxi containing knives and valuable objects. The applicant himself was searched and a sum of $1,840 was found upon him. At that point he was cautioned, and he replied "Ah Sir I have been caught red handed.". He referred to the objects in the bag and the money as coming from a burglary and he offered to lead the police party to the scene of robbery.

5. In the meantime, his co-accused had also been apprehended and was brought back to the scene. Both of them accompanied the police, in a police vehicle, to the Tokyo Therapy Massage Parlour which is very close by.

6. The evidence of police officers referred to three or four persons leaving the taxi. The taxi driver referred to five persons. The taxi driver was, of course, sitting in front and it would not have been difficult, as was quite properly pointed out by the trial judge, for a person to remain hidden in the back of the taxi and leave it later.

7. These points were raised before the jury. As was also the difference between that which one police constable said in evidence in court and that which he had said in his committal proceedings statement.

8. The "Ah Sir'' admission was strongly challenged in the course of cross-examination. It is put to the sergeant that he had been told by the applicant that the applicant had been in the Fu Yiu Restaurant where he was having a meal. The sergeant was questioned as to why he did not go and investigate that particular restaurant. He denied being told anything of the kind.

9. It is correct that some of the eye-witnesses had differed slightly in minor matters, as is common with eye-witnesses. None of the discrepancies, such as they were, were material.

10. As to the $1,840 found upon the applicant, this was precisely the sum which had been taken from the lady cashier at the Tokyo Therapy Massage Parlour. There was no reference in the court below to any money being found in prisoner's property over and above that sum.

11. There is, of course, no onus upon an accused in a criminal trial to give evidence in his own behalf. He does not have to prove anything. He is perfectly entitled to sit back and say "Prosecution, prove your case". This the applicant did. Where however allegations are made against the police of framing, as they were in this case, of a failure to investigate an alibi and other matters of impropriety in relation to the conduct of police both at the scene and at a later stage, then, if no evidence is given in support of them by the person who makes those allegations through Counsel, they remain just that and nothing more.

12. The jury were fully directed on all the matters at issue. None of the directions were improper. Some may have been in somewhat strong terms, but a judge is entitled to comment on the evidence. It was made abundantly clear to the jury that they were entitled to disregard any comments made by the judge and that they and they alone were the judges of the facts.

13. The jury was entitled to come to the verdict they did on the evidence produced to them. Nothing that the applicant said, either in his written grounds or during this appeal shows them to be wrong.

14. The application is dismissed. The 60 day loss of time is confirmed and there will be a further 98 days loss of time.

Representation:

Appellant in person.

Mr. P.J. Cahill for Crown/Respondent.