HKSAR v. LUN WING CHEONG

IN THE COURT OF APPEAL

1996, No. 523
(Criminal)

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J U D G M E N T

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

1. On 2 September 1996 the applicant was convicted after trial on an offence of robbery by Deputy Judge Brazier in the District Court. He was sentenced to 5 years imprisonment. He now appeals for leave to appeal against conviction.

The offence

2. The offence took place on 25 November 1995. The victim of the robbery was a Mr Lee. He was on his way home at about 2 a.m. at Kornhill Gardens, Quarry Bay. The applicant and two others had been looking for a victim in a car. Mr lee was seen by them. The applicant and one other alighted from the car, approached Mr Lee by grabbing him and he was threatened with a knife. The property in the charge included $2,000 in cash, a gold necklace and a Rolex wrist watch were taken. The two escaped with a third man who was driving the car.

3. When the applicant was arrested some considerable time later, he made a statement in which he described this matter in these terms:

"So Sze Ngan Hung drove to Kornhill, Hong Kong where a middle-aged man was later seen carrying a briefcase. I and Tang Yau-kuen thus got off the vehicle. Tang Yau-kuen came face to face with the man, put a knife against his neck and declared 'robbery'. I then removed the wristwatch from the man. I remember that the man was wearing the watch on the left hand. After that, I saw Tang Yau-kuen take a wallet from the inner-pocket of the man's suit jacket. Ah Kuen then told the man to squat down. Then I and Ah Kuen jumped into the vehicle and drove to Kowloon via the Eastern Harbour Crossing."

In fact the victim recovered quickly, obtained a taxi and gave chase. The police were informed and the police also gave chase but the robbers were lost.

4. A witness later saw the applicant and another alight. The applicant changed the licence-plate of the car.

5. The applicant's two co-accused were arrested shortly afterwards. The applicant was able to escape. Indeed, it was not until 26 April 1996 then he was stopped and found to be a wanted person. It was shortly after his arrest, at the police station that he made a detailed statement, part of which we have read out, describing the manner in which he committed the offence.

At trial

6. There was only one real issue for the judge. That was whether that cautioned statement had been made voluntarily; and, if so, whether the contents were both reliable and true. The judge addressed that issue and came to the conclusion that although there were certain matters which had arisen out of cross-examination, for example, some discrepancies in two officers' evidence as to whether he was wearing handcuffs and at what time, he could rely upon the cautioned statement. He found it had been made voluntarily and was true. He said:

"I accept that the manner in which the cautioned statement was taken was not 100 per cent perfect, and Mr CHUNG, for the defence counsel, has carefully pointed out areas in which the standard fell below those of a perfect police officer,"

He then pointed out that he was not dealing with the professionalism of the police officer but as to whether the voluntary statement was true, voluntary and reliable.

7. The judge admitted the statement and convicted on the basis of it. He considered the applicant's evidence which did not impress him. He described his evidence in this way:

"On the general issue you have now gone into the witness box and said you were not there at the time the crime was committed. You said you had gone home at about 10 pm and you had left home at about 11 to 12 am and you had been there with your mother and sister. When you came to answer detailed questions in cross-examination it turned out that you did not know what day it was that we were talking about, whether you had been working that day or what you had been doing, or what time you actually came home."

Then a little later, he said:

"I found you to be lying transparently throughout."

The application

8. In support of this application, the applicant complains that there was no victim who gave direct evidence of the offence. The prosecution case relied solely upon his confession statement. He says the judge wrongly admitted it and that he was biased. But it is clear that the applicant is seeking leave from this Court to re-try the issues which were tried by the judge. He refers to the same matters that were put in front of the judge, that is, whether the statement was voluntary, whether it was properly taken, whether the police officers were reliable considering the discrepancies; and whether the judge properly took into account the issues raised about his addiction to drugs and whether he was suffering from withdrawal symptoms. Those are matters for the trial judge and not for this Court.

Conclusion

9. There is no basis upon which the applicant can submit that here the judge wrongly evaluated the evidence, or wrongly applied the law, or made any glaring mistake as to the nature of the evidence. There is no basis for allowing this application and it is refused.