R. V.Chung Chi-lung

CACC000543/1991

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Coram: Hon. Fuad, V.P., Penlington & Nazareth, JJ.A.

Date of hearing: 12 March 1992

Date of delivery of judgment: 12 March 1992

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J U D G M E N T

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

1. The applicant was convicted by His Honour Judge Hawkes in the District Court on 15th October 1991 of conspiracy to rob and on 7th November 1991 sentenced to be detained in a training centre. He now seeks leave to appeal against both his conviction and sentence.

2. The particulars of the offence were that he with two others charged with him, on 20th February 1991 in Ma On Shan Country Park in the New Territories, conspired to rob Au Wai-sing. The facts shortly stated are these. About 10:30 p.m. on 20th February 1991 a police special duties squad team located a taxi in the Ma On Shan Country Park. Inside they found the taxi driver Au Wai-sing, the applicant, and two other persons; the two who were subsequently charged with him. The three and the taxi were searched. A 10-inch survival knife was found on the floor behind the driver's seat. The sheath was found on one of the two co-accused. The applicant made oral admissions then and later in a cautioned statement, both of which the judge found to be voluntary.

3. The judge in his judgment dealt with the charge against the applicant in the following way:

"    Dealing first with the 1st accused, taking into account all the evidence such as the circumstances of him and the other accused being found in the taxi late at night in a country park, the knife being found in the taxi, the fact that the accused did not have enough money between them to pay for the taxi, the invoice (exhibit P3) being found on him (this was an invoice that related to purchase of certain items including two knives] and admissions made by him both at the scene and in a cautioned statement produced as exhibit P4, I had no doubt whatsoever that the 1st accused had conspired together with the other accused to rob the taxi driver. Accordingly, I was satisfied that the first charge had been proved beyond reasonable doubt against the 1st accused. I was satisfied of this notwithstanding that the taxi driver did not give evidence in this case."

4. In his proforma notice of application for leave to appeal the applicant gave only one ground relevant to his conviction which was that the 2nd accused denied the charge in the affidavit and was subsequently found not guilty despite his admission that he was carrying the knife. Before the Court today the applicant has taken a number of other points. He first of all raises the matter of the statement made by him. He says his family was not present, unlike the family of the 2nd defendant who therefore, he implies, did not admit anything. He says that the police officer wrongly refused to tell his family, so that no lawyer could be got for him. These were matters that were addressed by the judge who ruled the statement voluntary and there is nothing in what the applicant says that leads us in any way to doubt that conclusion.

5. The other point that the applicant raised, which was foreshadowed in his written application, is his apparent dissatisfaction with the acquittal of the 2nd accused. That really has very little to do with his conviction. The question is whether the judge below properly convicted him. From the passage I have quoted from the judgment of the judge it is quite clear that the conviction was quite proper.

6. As to his sentence, the applicant seeks to have it reduced from detention in a detention/training centre to binding over or to being sent to the Kwun Tong Hostel. In support of that he says that his parents are aged, younger his brother is ill all the time, another brother and younger sister although working do not contribute to the family, and that his family needs him to make a living; also that he was supposed to go overseas to have an aunt run her restaurant, a dream that now can no longer be fulfilled.

7. The judge gave his reasons for sentence in this way:

"       This offence can only be regarded as serious. Taxi robberies normally attract sentences of several years imprisonment. In this case, of course, no robbery was actually committed. However, this, in my view, was only because of the intervention of the police.

I have the benefit of probation and Detention/Training Centres reports and also submissions made by the counsel. on the whole the 1st accused's reports are unfavourable. Also he committed the present offence while still on probation for another offence.

Bearing in mind the facts of this case, the reports and submission made by counsel, the 1st accused is convicted and ordered to be detained in a training centre."

8. In his written application the applicant stated that he felt the judge had some prejudice against him and the sentence was too severe. We have already referred to what he has just told us. We should add that the applicant is now about 19 years of age. Both his parents are construction site workers and much concerned about his well being. In school he kept on getting into trouble and in January 1987 he dropped out while he was in Form 3. His friends are said to have been undesirable types. In May 1990 he was placed on open probation supervision for 12 months for an offence of obtaining property by deception. He turned a deaf ear to his probation officer's advice and within 12 months of being placed on probation committed the offence against which he now seeks leave to appeal. The probation officer understandably did not recommend open probation supervision for a second time. But the detention/training centre suitability report recommended a period of disciplinary training reinforced by a period of aftercare supervision. Nothing which the applicant has said to us today in any way persuades us that the training order is in any way inappropriate. The judge's order can clearly be seen to be right and appropriate. There is no merit in the grounds upon which the applicant proposes to appeal and his application for leave to do so is refused.

Representation:

Mr. D.G. Saw (The Crown) for Respondent

Appellant in person.