R. v. CHOW KIN

IN THE COURT OF APPEAL

1995, No.566
(Criminal)

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J U D G M E N T

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Ryan, J. : (giving the judgment of the Court)

1. The applicant was convicted after trial on a charge of attempted robbery and now applies for leave to appeal against that conviction.

2. The facts of the case were that a Madam Lee was at home on the evening of 27th August 1994. At about 11:30 pm she heard a noise and went downstairs to investigate and was there confronted by a man pointing a pistol at her and demanding $10,000. She told that man that she had no money at home but that she could take him to a teller machine at a nearby bank. As they were leaving the house, she heard a male voice speaking in Mandarin telling the man with the gun not to follow her out of the premises.

3. Her evidence was that she could see the man but that it was too dark to see his appearance clearly; that he was at first outside the window but had later come inside the premises. She said in evidence that she got only a fleeting glance of the second man. Madam Lee and the first man then left the premises and she was able to alert some people nearby which led subsequently to the arrest of the first man.

4. Madam Lee, after the arrest of the applicant, was able to identify him at an identification parade. The judge directed the jury on the question of identification of the applicant and carefully drew to their attention the weaknesses in that identification. He also reminded them of the inconsistencies between the evidence that Madam Lee had given and the witness statements that she had made to the police on earlier occasions. The judge instructed the jury that if they had any doubt about the identification, then they should acquit.

5. There was another piece of evidence - a palm print of the applicant - which was found on a window of the staircase leading to the lower floor of the premises of Madam Lee.

6. The applicant gave evidence and admitted that he was at that window on the night in question. The explanation that he gave for his presence at the scene was fully dealt with by the judge who reminded the jury of all of the detail relating to that matter.

7. All of the matters that the jury needed to consider were put before them by the judge in a fair and impartial way. There is nothing that has been said to us to suggest that a mistake has been made and the application for leave to appeal against conviction is dismissed.