The Queen v. Lo Chin Kong

CACC000538/1987

BETWEEN

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Coram: Hon. Yang, V.-P., Barker & Power, JJ.A.

Date of Hearing: 26th January 1988

Date of Judgment: 26th January 1988

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J U D G M E N T

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Power, J.A.:

1. The applicant faced a charge that he, together with Ng Tai-wai, on the 28th of March 1987, at Kowloon, robbed Lo wai-lan of a gold finger-ring and a gold wrist chain and Li Mei-kuen of $120 Hong Kong currency. He pleaded not guilty to that charge and after trial before Judge Longley was found guilty and sent to a detention centre. He now appeals against that conviction on the ground that he was not in fact present at the scene and that he was not identified by the victims.

2. The Reasons for Verdict indicate that both of the victims gave evidence and each said that two men were involved in the robbery which took place in a lift. It is true that at the identification parade Madam Li identified neither men and that Madam Lo's evidence as to what occurred at the identification parade was somewhat confused.

3. The learned trial judge said that although he regarded Madam Lo as being an honest witness she was confused as to whom she identified at the parade and had, in re-examination, said that she had only seen the side profile of the second man's face and could not recognize him by the front of his face. In consequence of these matters he considered it unsafe to rely upon her identification of either defendant. There was, therefore, no identification evidence, relied upon by the court in coming to the conclusion of guilt.

4. The trial judge was left only with the statement of the 2nd defendant and the facts of the robberies detailed by the victims. He dealt with the statement which had been admitted after voire dire proceedings in the following way:

"In his statement (P5) D2 admitted that he was present in the lift at the time Ng Tai Wai committed the robbery but denied that he had personally taken part. I accept his admission that he was present but believe the evidence of Madam Lo and Madam Li that both men in the lift participated in the robbery as they described. I accordingly am satisfied of the guilt of D2."

5. At the hearing before us the applicant was confused as to the course the trial had taken but he was represented by counsel and the record makes it clear that the statement was admitted after voire dire proceedings, in which he and a witness gave evidence; and that he elected to give no evidence in the trial proper.

6. The trial judge came to his conclusion of guilt as he was satisfied as to the presence of the applicant from his cautioned statement, which, of course, denied involvement, and as to his involvement from the evidence of madam Lo and Madam Li.

7. I turn to the Grounds of Appeal and take the second ground first. It is true that there was no identification of the applicant. Indeed the trial judge made it plain that he did not rely in any way on the unsatisfactory evidence as to identification that was given.

8. The only other matter raised in the appeal was the submission of the defendant that he was not at the scene of the robbery. Clearly the trial judge was satisfied from his own statement that he was there. Nothing has been raised before this court which would in any way indicate that the finding of guilt should be interferred with.

9. The application for leave to appeal against conviction is refused.

Representation:

Mr. L.G. Cross & Mr. W.S. Cheung (Crown Prosecutors) for the Respondent.

Applicant in person.