HKSAR v. FUNG MAN YIP

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 508
(Criminal)

-------------------------------------

----------------------

J U D G M E N T

----------------------

Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant, Fung Man-yip, was convicted by Deputy Judge Chainrai in the District Court on 6 August 1997 on one charge of robbery on contrary to s. 10(1) and (2) of the Theft Ordinance (Cap. 210).

2. The particulars of offence were that on or about 23 January 12997, inside lift No. 1, 2nd floor, Paterson Building, Causeway Bay together with two other persons not in custody, he robbed Michael Wu of one handbag, one wallet, HK$30,000, US$3,800, Ren Min Bi $20,000, Canadian $500 and Japanese (20,000, all in currency, together with one Canadian passport, one Canadian citizen's card, one Canadian driving licence, one Shanghai driving licence, one China Permit of Stay, two Hang Seng Bank passbooks, one Hang Seng Bank card, one Hang Seng Bank Smart Account card and one Canadian TD Bank card. He was found guilty after trial and sentenced to imprisonment to 4 years.

3. The facts were these. At about 6 p.m. on 23 January 1997, the victim Michael Wu, who was also the first prosecution witness, and Wang Shen, his wife, entered a lift on the ground floor of Paterson Building in Causeway Bay. The defendant and two other unknown males left an adjoining lift and entered the lift in which Wu and his wife were in. The two victims were visitors to Hong Kong, having come from China. They wished to go to the second floor to arrange for accommodation. They had pressed the second floor button. When the door closed, they were attacked by all three males. One of them, who the husband said, was the defendant, snatched from the wife a paper bag which she held and passed it to one of the other two. That paper bag contained a "Dunhill" black handbag belonging to the husband. It contained the items listed in the charge. When the lift got to the second floor, the door opened and the two went out and down the stairs. The defendant was the last to leave. He was seized by the husband who shouted for help, grabbed him by his clothes and ultimately he was subdued by the husband and someone who came to the husband's assistance. The police were called and he was arrested.

4. The evidence which the judge carefully reviewed depended upon the credibility of the husband's evidence. This was fully set out and carefully considered. There was no question of mistaken identity here as the applicant was held by the husband on the very occasion of the robbery when he was leaving the lift. The judge gave careful consideration to that aspect. In fact after he had given his evidence, she particularly asked him whether he had lost sight of the applicant. His answer was that in effect he had not. He also denied that there was any conversation between him and the applicant. This was in response to suggestions in cross-examination that there had been an exchange.

5. The applicant in his notice of application for leave to appeal relied upon four grounds. The first was that the prosecution failed to prove the alleged offence against the defendant beyond all reasonable doubt. The second was that "there was a mistake in the legal aspect in that the judge did not consider the various doubts and unreasonable elements in PW1's evidence". The third was that the judge was prejudiced against him and did not consider his evidence comprehensively and thus without substantial evidence rejected the applicant's credibility. The fourth was that with regard to the above reasons, it was unsafe and inappropriate to convict him.

6. There is nothing in these grounds. As we have observed, the real point was the identity of the applicant, whether he took part in the robbery and whether he was the person the husband spoke about.

7. As we have said, the judge carefully considered the victim's evidence and believed him. He had stated positively that all three assaulted him and his wife and that it was the defendant who in fact took away the bag in the first place. Also, as we have said, the applicant was seized on the spot.

8. Before us today, he has made three further points. He says that when he appeared before the Deputy Judge she ordered him to be detained until the afternoon. Presumably this was because the case was to be heard in the afternoon. But he suggests that that shows the judge had predetermined the matter and decided he was guilty regardless of what evidence might emerge.

9. We do not accept that ground at all. It appears that he had been on bail at some time but the Deputy Judge, having glanced over the papers was perfectly entitled to take the view that he should be detained in custody until the afternoon having regard to what must have appeared to be a strong prima facie case against him. We find nothing in this ground.

10. The second ground is that the judge relied on the evidence of one side and paid no attention to his evidence. The applicant says he did not know the other two persons who are still at large. Again having regard to the judge's careful consideration of the evidence, we find no merit in this ground.

11. Finally, he says that he was beaten up by the police in the police station and invited by them to admit the offence and told that if he did so, he would receive a lighter sentence. He contends that if he was guilty, he would not have maintained his innocence. Again, we find nothing in this ground. At the end of the day, the judge's careful consideration of the evidence, her acceptance of the victim's evidence entitled her to come to the conclusion she did.

12. We find no merit in any of the grounds or any reason to interfere with that conclusion.

13. We refuse leave to appeal against conviction.