R. v. LAM CHI YIN

IN THE COURT OF APPEAL

1991, No. 501
(Criminal)

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J U D G M E N T

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Penlington, J.A.:

1. This is the judgment of the Court.

2. This is an application for leave to appeal against conviction by Deputy Judge Britton on a charge of robbery committed on the 10th May 1991 at the Kwan Po Yuen Clinic in Yau Tong Estate, Kwun Tong.

3. There was undisputed evidence that on that day a Dr. Kwan, together with two members of his staff, were just about to close down the clinic in the early evening when two men entered armed with knives. They tied up the persons in the clinic and robbed Dr. Kwan of some $9,000 in cash. The robbers then left because somebody knocked at the door, suspecting that something was going on. He was known to the persons in the clinic as Ah Sui but it seems clear that his full name was Ho Muk Sui.

4. The evidence against the applicant was not particularly strong in that none of the occupants of the clinic, the doctor and his assistants, were able to recognise the applicant as one of the robbers and a statement made by the applicant in which he had confessed to committing the robbery was ruled inadmissible by the trial judge. The evidence against the applicant consisted substantially of what happened when the applicant was apprehended by Mr. Ho Muk Sui who caught him as he was running away from the clinic and handed them over to the police when they arrived. Mr. Ho however could not subsequently be found and was not available to give evidence. However two police officers, one an auxiliary police constable and one a sergeant, who were PW4 and PW5 respectively, gave evidence that when they arrived at the scene the applicant was being held by Mr. Ho and he quite clearly had been the subject of some physical attack by passers-by. There was some dispute as to what physical state he was in but the judge found that although he had been assaulted these assaults were not particularly serious.

5. In the presence of the applicant Mr. Ho said that he had gone to the clinic as a result of being told something and saw two men fleeing from the scene holding knives. He followed one of them, caught him and brought him back to the clinic. He identified the applicant as that man who, he said, had then "told him everything". It was the sergeant's evidence that when he arrived Mr. Ho pointed at the applicant and said, in his presence, "Ah Sir, this is the man who robbed and was caught by me". In reply to this the applicant said to the sergeant that he was at the clinic to look for a friend and he later said "I came here to see a doctor". He did not however admit that he had taken part in the robbery.

6. The trial judge considered, quite rightly, that he could not accept as direct evidence what had been said by Mr. Ho, as he was not a witness. He could however consider that the applicant had admitted that he was present in the clinic, albeit that he also said that he had gone there to see a doctor. He cited the authority of R. v. Christie [1914] AC 545, which is summarised in Archbold at paragraph 15 - 339, that the accusation made by Mr. Ho in the presence of the defendant was one which reasonably called for some explanation or denial. He could accept what had been said by the applicant to the extent that he accepted or adopted what had been said by Mr. Ho. Therefore there was evidence that the applicant was in the clinic at the time of the robbery. That, taken with the evidence of the doctor and his two assistants that the only persons present were themselves and the robbers, meant that he must have been there as one of the robbers. The evidence was quite clear that there were no other persons present in the clinic at that time as Dr. Kwan just about to close down for the day. There was other supporting evidence given by one of Dr. Kwan's assistants that one of the robbers was wearing a dark blue jacket. The applicant was wearing such a jacket.

7. The applicant did not give or call any evidence himself.

8. We were satisfied, having considered the trial judge's reasons for his verdict, that he was perfectly entitled to take the view that he did and that there is nothing about this conviction which we regard as being unsafe or unsatisfactory. The application for leave to appeal against conviction is refused.

9. Before leaving the case we would however also say that we have looked with some dismay at the history relating to the matter between the time of the conviction on the 14th October 1991, and today. We assume that counsel who was assigned for the applicant at the trial was asked for his opinion as to grounds of appeal. That apparently did not arrive despite many letters being sent from this registry inquiring as to the position. Eventually, however, a legal aid certificate was granted to another counsel on the 11th August 1992. Again there was two months' delay because that counsel was on leave but eventually the legal aid certificate was discharged. Again we assume that was on the basis that counsel could find no arguable grounds of appeal against the conviction. As a result it is now some 15 months since the date of the conviction and the filing of notice of appeal. While the Crown's case was not overwhelming, the legal principles involved and the evidence generally were not complex or lengthy and there is no apparent reason for the inordinate delay in finally bringing this appeal on for hearing.