The Queen v. Leung Chi Wai

CACC000479/1995

IN THE COURT OF APPEAL

1995, No. 479
(Criminal)

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Coram: Hon Mortimer, Mayo, JJ.A. and Keith, J.

Date of hearing: 23 January 1996

Date of judgment: 23 January 1996

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his convictions for two robberies and the concurrent sentences of 3 1/2 years imposed on each of them.

2. He was a young man of 17 at the time of the offences in April 1994.

3. Both the robberies were lift robberies. In each case the applicant was accompanied by another man. His co-defendant below pleaded guilty to the 6th charge.

4. The circumstances of the offences are all too common. Unaccompanied ladies entered a lift in a block at the Tin Yiu Estate at Yuen Long. After the lift began to ascend one of the men produced a sharp object and declared that a robbery was taking place. The victims are then stripped of their jewellery and cash. They are pushed out of the lift at one of the floors when the lift is descending and the men then made good their escape.

5. In the present case the victim of the 6th count Madam Ho some days later recognised the defendant and his co-defendant on that charge at the block of flats and immediately made a telephone report to the police. Police officers attended at the block made a search and found two men. Madam Ho identified them as the men who had robbed her.

6. At an identification parade held subsequently the victim of the 5th charge Madam Lo identified the applicant as one of the men who had robbed her in the lift some days earlier.

7. The evidence at the trial below before His Honour Judge Kilgour was limited to the identification evidence as he ruled the inculpatory statement made by the applicant to be inadmissible.

8. It is clear from the detailed Reasons for Verdict that His Honour Judge Kilgour gave the most careful thought and attention to all of the matters which have to be weighed on identification. He was satisfied that both the lady victims were honest and reliable witnesses and that they had had a sufficient opportunity of observing the applicant to enable him to be satisfied beyond a reasonable doubt that both charges had been proven.

9. In his grounds of appeal the applicant refers to a mistake which one of the victims made when she initially said that the applicant was the man holding the knife and that this evidence was inconsistent with the statement that she made at the identification parade when she said that it was the other man who had been holding the knife.

10. Kilgour DJ made reference to this in his Reasons for Verdict. He said that when the lady's attention was drawn to this she immediately corrected herself. He was satisfied that it was a genuine error and that her evidence was notwithstanding this still reliable.

11. The applicant also claimed that that his co-defendant below had said in his statement to the police that another man had been involved in the robbery on 23 April. This does not take matters any further. It is relevant to add that the co-defendant pleaded not guilty to the robbery which occurred on 23 April which was the 5th count.

12. The trial judge had the opportunity of considering the evidence which was before him and we can see no grounds for interfering with these convictions.

13. The application for leave to appeal against the conviction is dismissed.

14. As to the application for leave to appeal against sentence the applicant said nothing to us which would enable us to reduce the sentences which were imposed. It is perhaps worth stating that the sentences were very lenient sentences in the circumstances of the cases which we have already described. The applications for leave to appeal against sentence are also dismissed.

Representation:

Mr Frank Veltro for Crown Prosecutor

Mr Leung Chi Wai, Applicant in person/present