HKSAR v. CHAN FONG WAI

CACC203/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 203 OF 2003

(ON APPEAL FROM DCCC 28 OF 2003)

---------------------

----------------------

-----------------------

J U D G M E N T

-----------------------

Jackson J (giving the judgment of the Court) :

1. In May of this year the applicant appeared before HH Judge Christie in the District Court charged with an offence of robbery (contrary to sections 10(1) and (2) of the Theft Ordinance, Cap.210) and with an offence of Remaining in Hong Kong without the authority of the Director of Immigration (contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115).

2. He pleaded guilty to the latter offence and, on 5 May, he was convicted after trial of the former. In respect of the robbery he was sentenced to a term of five years' imprisonment such sentence to be served consecutive to a term of 15 months imposed on that same day in respect of the immigration offence.

3. The applicant (who was legally represented at trial but who appears before us in person) seeks leave before us to appeal against his conviction for the offence of robbery and his written grounds of appeal are as follows :

" Actually I didn't commit robbery, nor was I at the scene when the crime occurred. There was a lapse of nearly two hours between the time the crime took place and the time I was arrested. I was apprehended at a location of merely four hundred meters away from the robbery scene. If I were the perpetrator, I would have left the vicinity and took up the booty robbed from the victim afterwards given an interval of two hours, wouldn't I? The complainant made two statements. The content of the first one made before my arrest was totally different from the second one made after. I only saw the mobile phone (relevant to the case) at the police station two odd hours after my arrest. A hundred dollar note in Hong Kong currency was shown to me at the same time. However, other items (once) on me were not produced to me. Thus, I am dissatisfied with the guilty verdict returned by the District Court judge. I hereby apply for leave from the High Court to lodge an appeal and hope for justice. The fact that I was being identified in the identification parade was because the victim had seen me at the police station on the next day."

The case at trial

4. For the prosecution eight witnesses gave evidence : the first of whom was the "victim" and the remainder were police officers. The "victim" said that at about 3 a.m. on 5 December 2002 he was making his way home when he was accosted from behind by a man who then declared robbery and who displayed a knife. As the "victim" tried to push away the knife his thumb was cut.

5. In response to the man's declaration of robbery, the "victim" said that he handed over to him some cash (consisting of a $100 bank note and some Renminbi bank notes), and his mobile telephone. His evidence was that he was able to observe his assailant in adequate lighting conditions for between one to two minutes and that as soon as the robbery was over he made a report to the police.

6. The evidence of the police officers was to the effect that one of them saw the applicant about 400 metres away from the scene of the robbery considerably more than an hour later and that his clothes matched the description given by the "victim" of those worn by the man who had robbed him. When this officer asked the applicant for his identity card, he (the applicant) ran off and during the chase the officer said that he saw the applicant throw something to the ground which other officers recovered and found to be a knife and which they ascertained from the "victim" to be similar to the one held by the robber.

7. When the applicant was finally apprehended he was found to be in possession of the "victim's" mobile telephone together with some cash consisting of a $100 bank note and some Renminbi bank notes.

8. At a subsequent identity parade the "victim" identified the applicant as being his assailant.

9. The applicant gave evidence in his own defence. He said that he arrived at the scene of his arrest having just alighted from a public light bus after entering Hong Kong illegally that same night. He denied being in possession of a knife and discarding such whilst he was being chased by the police. He also denied being in possession of the "victim's" mobile telephone at the time of his arrest. As to the cash found on him he said that he had brought it with him from the Mainland.

10. The applicant also gave evidence saying that the "victim" had mistakenly identified him; that he (the "victim") had seen him at the police station following upon his arrest, and that at the parade he (the applicant) stood out from the others on that parade because he was, by then, dishevelled, unwashed and tired.

The reasons for verdict

11. In his reasons for verdict, the judge addressed each and every one of those matters complained about by the applicant in his written grounds of appeal and in his oral submissions before us and, in our judgment, his findings cannot be faulted.

12. The evidence against the applicant was simply overwhelming and why he chose to remain in the general vicinity of where the robbery took place for well over an hour after he committed it, is a question to which only he knows the answer.

13. This application is refused.