R. v. YUEN WAI SHUN

IN THE COURT OF APPEAL

1994, No. 182
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. This is an application for leave to appeal against both conviction and sentence. The applicant was convicted of (1) claiming to be a member of a triad society for which he was sentenced to 9 months' imprisonment; (2) wounding with intent for which he was sentenced to 3 years and (3) robbery for which he was sentenced to 3 years and 9 months' imprisonment. The trial judge ordered the sentences to run concurrently.

2. In his homemade grounds of appeal, the applicant advanced, if we understand him correctly, some six grounds of appeal. It is not necessary for us to deal with these points, suffice it to say that we have considered each point with care.

3. It would appear in his address to us this morning that his main concern was that the victim could not have identified him because he had not committed the offence and either he was not in Hong Kong or he had only just returned to Hong Kong from Sweden. He indicated to us that he arrived back from Sweden in the early part of 1990. The offences in question were committed on 2 August 1990.

4. The judge in his Reasons for Verdict dealt with all the essential points in the case with care. He correctly identified the two main issues in the case: (a) the credibility of the principal witness, i.e. the victim, and (b) the nature of the identification evidence. The judge found the victim a credible witness and concluded that the identification evidence was not the kind of fleeting glimpse evidence envisaged in Turnbull [1976] 3 AER 549 though he did take the warnings set out in that case into account. He correctly came to the view that this was a recognition case rather than a first time identification.

5. The applicant did not give evidence at the trial. The material evidence therefore came only from the victim. Briefly, the evidence was simply this: at about 4:45 am on 2 August 1990, the victim was attacked by a group of some 20 youths in a lift lobby in Nathan Road. According to his evidence, his injuries were caused by knives and a hammer and it was the applicant who inflicted the hammer blow. At the time, the applicant said to the victim that he was a member of Wo Shing Wo. He was then taken out of the lift lobby and his personal belongings, e.g. a gold necklace and a fountain pen, were taken away from his person.

6. According to the evidence of the police, the applicant was not arrested until March 1993. At an identification parade held in mid-April 1993, the victim identified the applicant.

7. There is, in our view, nothing in any of the grounds of appeal against conviction. The application for leave to appeal against conviction is therefore refused.

8. In his application for leave to appeal against sentence, he reiterated what was written in his homemade grounds of appeal. We do not propose to deal with them in any detail save to say that there is nothing in any of the grounds advanced therein.

9. The judge adopted a starting point of an overall sentence of 4 years and 6 months but came to the view that the proper total sentence should be one of 3 years and 9 months and this was the sentence that he imposed.

10. There is nothing in this application against sentence and that, too, is refused. The applications are entirely without merits. We, therefore, ordered a loss of time of three months.