CHENG LAP WAH v. R.

IN THE COURT OF APPEAL

1993, No. 390
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted after trial of robbery and sentenced to imprisonment for four years. He now seeks leave to appeal against conviction and sentence.

2. This is the judgment of the court and it deals only with conviction.

3. It is not disputed that at about 2 a.m. on 12 November 1992 a robbery was committed at the Hollywood Restaurant in Mongkok. There was on the ground floor a cake shop belonging to the same restaurant, with a rear door leading out to the rear lane.

4. According to the statement of the restaurant's watchman, Mr AU Fuk-hing, the contents of which were agreed, he "believed" that there were three culprits, whose faces he did not see, and he only knew that there were "about" three males. After describing how he was overpowered by the intruders and how cash was stolen from both the restaurant proper and the cake shop, he went on to say: -

" Later I checked and found that the culprits gained entry to the 1/F of the restaurant through the rear exit at the rear lane. They prized open the glass on the top of the wooden door with a crowbar at the rear exit, took away the glass and removed the wooden latch and prized open the iron lock in order to get in. Then they left via the rear exit. The front entrance was intact."

5. By his cautioned statement the applicant admitted that he and two other men, Ah Fai and Ah Yau, entered the Hollywood Restaurant together. He went on to say that having entered he saw a room, which he entered, whereupon he saw a cabinet. He used the "ironbar" to prize the lock of the cabinet and he heard the alarm. At that moment of time he did not know where Ah Fai and Ah Yau had gone. Then, "we heard the alarm, (we) went back to rear lane together"

6. The applicant did not give evidence.

7. In his Reasons for Verdict the learned trial judge said this: -

" It was submitted to me, that perhaps they did go to burgle only, and that there is no evidence that Defendant used any force, or intended to use any force. In fact however, I am satisfied from the evidence of watchman, which was agreed, that he heard three culprits. Also of course, there is evidence that they all entered together and left together. From the photographs it is obvious the watchman was in an extremely prominent position, near to the hall. To suggest in those circumstances, that the Defendant neither knew of or intended to use force against the watchman found inside, flies in the face of the evidence."

8. The main, if not the only, issue at trial was whether there was a reasonable doubt as to the participation of the applicant in a robbery. In other words, whether the circumstantial evidence was such as to justify the conclusion that the applicant did take part in the robbery.

9. The evidence shows that only three men were involved. Mr Au's statement is that the culprits gained entry to the first floor and left via the rear exit. The front entrance was intact. The three men were seen by the police coming out of the rear lane at the rear of the restaurant. Upon the evidence, the argument that the applicant might not have gone up to the first floor, or intended any force being used on the watchman, does seem to us to go counter to reality and commonsense. There was in our judgment sufficient evidence for the learned judge to come to the view that he did.

10. The application for leave to appeal against conviction is accordingly dismissed.

11. Counsel for the applicant having indicated that he would make no submission on the application as regards sentence, we dismiss the application.