LAU CHI MING v. R.

IN THE COURT OF APPEAL

1993, No.642
(Criminal)

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J U D G M E N T

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

1. These are applications for leave to appeal against conviction and sentence in respect of a charge of robbery.

2. On 4th February 1993, a watchman, Mr. Tsui, was approached at his place of employment by a man who asked to borrow $270. He said he knew Mr. Tsui's employer and that he worked in an adjoining factory. He wanted the money to pay for goods which had been delivered. He agreed to do this provided the man produced his identity card and allowed him to record the number. Mr. Tsui then took out his money which had been recently received, $4,900, and took $270 from that. The man grabbed him by the neck and snatched $4,000 from him. There was no dispute that such events happened. The sole question was whether the robber was the applicant.

3. At an identification parade, Mr. Tsui failed to identify the applicant but subsequently he told the Inspector in charge of the parade that the person standing at No. 2 position was very like the robber but he kept turning his face away. The applicant was standing at that position.

4. When Mr. Tsui gave evidence he was definite then as to his identification of the applicant. However, this identification evidence, standing alone, would not be sufficient to justify a conviction. The identity card number recorded by Mr. Tsui is that of the applicant's but he gave evidence that some 8 months previously he had lost his identity card, a loss which had been immediately reported to both the Police and the Immigration Department. While therefore the evidence was clear that the man who did the robbery did produce an identity card in the name of and bearing the number of the applicant there was a possibility that a card had been used by the robber which was the one the applicant lost.

5. There was however evidence of an interview conducted after the applicant had been arrested for another offence in which he told the interviewing police officer that he did ask the watchman if he could borrow $270 but denied robbing him of the $4,000. While it was a denial of committing the robbery the statement did put the applicant on the scene as the man who approached Mr. Tsui. The statement was recorded in writing but was not signed by the applicant and could therefore only be used to refresh the memory of the interviewing officer. There was no voir dire inquiry held as to its admissibility.

6. The trial judge accepted that this verbal statement was made by the applicant to the interviewing officer and that evidence did provide the necessary vital link connecting the robber with the applicant.

7. The application for leave to appeal against conviction is therefore refused.

8. The applicant was sentenced to 3 years and 10 months in respect of this offence. While no weapon was used in the robbery and no injury was inflicted, it was a violent robbery on a watchman who was quite defenceless. The applicant has a long list of previous convictions, most of which are for deception, but there is one for possession of offensive weapon. We do not consider the sentence passed as one which calls for our intervention. The application for appeal against sentence is also refused.