The Queen v. Kan Hok Wai

CACC000490/1988

Coram: Hon: Silke, V.-P., Hunter & penlington, JJ.A.

Date of hearing: 10 March 1989

Date of delivery of judgment: 10 March 1989

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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. This is an application for leave to appeal against conviction on a single charge of robbery.

2. The fads of the case, as found by Her Honour Judge Chua after trial, were that two employees of the Hang Kung Restaurant were robbed by two persons in Granville Road on the 9th May, one of them of a bag containing $100,000 and the other of an envelope containing $89,000. It is quite clear that the two men came up to these employees, threw pepper in their faces and tried to seize what they were carrying. It is also true that, probably, because of the pepper, neither of them was able to identify the robbers. However a police constable, DPC23867, happened to be in the vicinity. He chased one man who he subsequently identified without any doubt as the applicant and whom he had seen struggling with one of the employees. Eventually the applicant was stopped by DPC23867 and there was a struggle in the course of which tile applicant received some minor injuries.

3. One of the employees came up and identified an envelope which was found at the scene of the apprehension of the applicant as that which contained some of the money. Also found was a white envelope with traces of pepper in it.

4. The police constable gave evidence that he had a clear view of the robbery and he was quite certain that the person he chased was in fact the applicant.

5. The applicant was taken into custody and subsequently made a statement in which he admitted having carried out the robbery together with another person. The statement was challenged but was held by the trial judge to be voluntary and was admitted. We see no reason to doubt the safety of that decision.

6. The applicant gave evidence that he was an innocent bystander and became embroiled in the incident by simply being on the scene.

7. The matter was purely a question of fact for the trial judge. She was convinced by the evidence of the constable that the applicant was indeed one of the two people who had taken part in this robbery. She diem not believe the applicant and described him as a "bad liar". We see no reason whatever to doubt those conclusions were perfectly proper

8. The application for leave to appeal against conviction is dismissed. We find furthermore that there was no merit whatever in this application and 60 days during which the applicant has been in custody between his filing the application for leaves and today will not count as part of his sentence.

Representation:

I.G. Cross & W.S. Cheung for Crown/Respondent

Applicant, Kan Hok Wal, in person