R. v. HUI KAN FAT

IN THE COURT OF APPEAL

1996, No. 296
(Criminal)

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court) :

1. The applicant was convicted of one charge of robbery and seeks leave to appeal against conviction.

2. On the afternoon of 26th August, 1995, Madam YUNG Sau-lan was on her way home to the 26th floor of Chuen Shui House, Shui Bin Wai Estate in Yuen Long. She entered a lift and pressed the button for the 25th floor because that was the highest floor that the lift would go to and she would walk the remaining floor. A man also walked into the lift. He was wearing a green collarless T-shirt and a pair of trousers which were milky white. He pressed the button for the fourth floor and when the lift got to that floor he held the doors open, produced a folding knife and declared robbery. He demanded money from Madam Yung and she gave him a $500 note which she took from her purse. According to her, the note had no distinguishing marks. The man then fled. Madam Yung continued up to the 25th floor and from a window on the stairway landing she saw a man, dressed in clothing identical to that of the man who had robbed her, walking towards the Shui Bin Wai Light-Rail Transit Station. She went into her home and out on to her balcony from where she saw the same man standing at the station. She telephoned the police and gave a description of the man's clothing. She watched from her balcony until she saw some men approach him and, assuming they were the police, she went down to the station.

3. The man whom the police had approached was the applicant. In his presence, she told the police that it was he who had robbed her. Madam Yung's evidence of identification was strong. Upon being arrested and cautioned, the applicant said :

"Ah sir, give me a chance. The $500 which I had robbed, I used that for taking something. I am a drug addict."

The applicant denies that he said anything of the sort. The applicant's evidence was, inter alia, that he did have a $500 note but that he had had it for some days and that there was a mark upon it, being a red arrow pointing at the lion. This was not dealt with by the judge in his reasons for verdict at all. For some reason, the bank note was never produced in evidence. The knife was never found. The judge of course was bound to consider all of the evidence upon which to base his conclusion. He ought therefore to have considered the evidence as to the mark on the bank note. This, he did not do. We have now been shown the bank note in question. It is still in the secure exhibits bag and it is quite clear that it contains the mark alleged. It appears to us that the applicant could not have had any opportunity of marking the note or indeed seeing it again after it had been taken from him.

4. Notwithstanding the evidence of identification and the oral admission, in our view, the evidence about the bank note which was not dealt with was so material as to render this conviction unsafe and unsatisfactory.

5. We therefore grant leave to appeal against conviction and treating the application as the hearing itself, we quash the conviction.