THE QUEEN v. CHAN KAM PO and Others

IN THE COURT OF APPEAL

1995, No. 681
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. At the hearing in the District Court the applicants (D1 to D4 respectively) faced one or two charges of robbery.

2. The case for the prosecution in respect of Charge 1 was as follows. On 3 June 1994 whilst Mr Tsang Chum Wo (PW1) and his wife (PW2) were having their evening dinner at home, the four applicants entered pretending to seek dental treatment from PW1. The intruders displayed two knives, and herded PW2 and her three daughters, aged seven to thirteen, into a room. PW1 and PW2 were bound with adhesive tape. PW1 was also gagged with tape. The robbers stole some cash and jewellery. The victims were unable to make any identification.

3. At the trial the judge relied on the evidence of the 3rd applicant (D3) who had turned Crown witness and cautioned statements made by the 2nd applicant (D2) and the 4th applicant (D4).

4. The 1st applicant (D1) and 3rd applicant (D3) pleaded guilty to Charge 1. D2 and D4 were found guilty of Charge 1 after trial.

5. The second charge of robbery (Charge 2) concerned D1 and D2 only. The Crown case was that on 27 June 1994, D1 and D2 robbed Madam Sae Heng Heng Huang inside a lift in King Fu House, Shan King Estate, Tuen Mun of cash, jewellery and other items. Some violence was used in the course of the robbery. The victim was unable to make any identification. At trial the judge relied on cautioned statements made by D1 and D2.

6. In this application for leave to appeal, D1 seeks leave to appeal against sentence, D2 against conviction and sentence, D3 against sentence and D4 against conviction and sentence.

7. The judge passed the following sentences:

On D1 - 5 years on Charge 1
1 year on Charge 2, consecutively

On D2 - 6 years on Charge 1
1 year on Charge 2, consecutively

On D3 - 4 years on Charge 1

On D4 - 6 years on Charge 1

8. D2, in addition to his other grounds of appeal, also complains that defence counsel failed to serve his interest adequately. We therefore adjourned his application for affidavits to be filed by him and counsel who represented him in the court below.

9. Dealing first with D1, we note that he was only 15 years of age at the time of the offence. We also note that Charge 1 concerns a robbery committed at night in domestic premises by a group with knives. The victims included young children. Charge 2 concerns a lift robbery which is prevalent in housing estates. There is nothing in the application.

10. D3 was 15 years of age at the time of the offence. He turned Crown witness and gave evidence which secured the conviction of his co-accused. D3 and D4 are represented by counsel. We have considered her submission before us. D3's four-year sentence is in our judgment a little on the high side but nevertheless within the acceptable range. His application is dismissed.

11. D4 appeals against conviction on the grounds, inter alia, that his cautioned statement was involuntary, that D3 "wanted to shuffle his crime on to others", and the case had been "deferred for long out of many reasons". There is nothing in any of his grounds of appeal. The trial judge considered with great care the evidence of D3 and the admissibility of the cautioned statements. There is nothing in what D4 says which give cause for concern. As to his sentence, we have already noted the seriousness of the offence in Charge 1. He was 20 years of age at the time of the robbery. His application as regards conviction and sentence must also fail.

12. The result is that the applications by D1, D3 and D4 are dismissed. D2's application is adjourned.

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