R. v. WONG NGAN WA

IN THE COURT OF APPEAL

1995, No.567
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. This is the judgment of the court.

2. The applicant was the second accused in the court below. He and his co-accused were convicted after trial of one count of robbery. The applicant now seeks leave to appeal against conviction.

3. The evidence against him in the court below consisted of his cautioned statement, his identity card found in a public light bus involved in the robbery and the evidence of a conversation given by an accomplice called Szeto Yiu.

4. The facts of the robbery are briefly these. At about 9:00 pm on 16 August 1994, a number of people were playing mahjong in the Sun Hop Wo Factory when some armed men burst in and threatened them with knives and stole various amounts of cash totalling some eleven odd thousand dollars and a necklace.

5. The robbery was cut short because the owner of the factory was able to slip out and raised the alarm. The robbers took fright and ran away.

6. The cautioned statement which was admitted after a voir dire showed clearly that he admitted to the offence in question. Further, the judge quite rightly instructed the jury that the finding of his identity card in the public light bus could be used as evidence in their deliberations as to whether the applicant was guilty or not guilty because the public light bus was used by the robbers as a getaway car.

7. The evidence of the conversation given by the accomplice Szeto Yiu is not of great weight as the judge indicated in his summing up, but it could nevertheless be used by the jury in their deliberations. The conversation amounted to no more than that Szeto Yiu said in the presence of this applicant and another culprit:

"The worst thing of all is that the ID cards and pagers and phonebooks were left in the PLB."

8. The judge said in his directions to the jury that this evidence was not direct evidence that the applicant was one of the robbers but, nevertheless, it was open to the jury to consider the evidence if they so wished.

9. In his homemade grounds of appeal, the applicant complained that the cautioned statement was taken in violation of rules issued by the Secretary of Security in 1992. There is nothing in that ground of appeal. The judge dealt with the relevant evidence on the issue of admissibility in the voir dire proceedings and ruled that the statement in question was admissible. There is nothing to show that the judge erred in any way in this regard.

10. Secondly, the applicant complained that the evidence of Szeto Yiu was all hearsay but, as we have indicated earlier, the only evidence which the judge said the jury could use was Szeto Yiu's evidence of the conversation on the subject of finding of the identity card in the public light bus.

11. Lastly, the applicant said that the judge erred in allowing the prosecuting counsel to reveal his previous convictions. It is true that during the voir dire, an application was made on behalf of the Crown to adduce evidence of the applicant's previous record but that application was not allowed.

12. At the hearing of the general issue, the applicant did not give evidence but called an alibi witness. During the cross-examination of that witness, the prosecution sought to ask questions which might have revealed his criminal record but, as it happened, those questions were never asked and the judge was not required to make any ruling on this point. The applicant this morning agreed that the jury knew nothing about his previous convictions.

13. There is therefore nothing in any of the grounds advanced by the applicant before us this morning. The application is accordingly refused.