R. v. WAI SHING WAH

IN THE COURT OF APPEAL

1994, No. 399
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the court):

1. The applicant seeks leave to appeal against his conviction for robbery. He was convicted on 7 July 1994 after a trial before Deputy Judge Jenkins in the District Court.

2. It was a simple case. The main prosecution witness was Mr Leung Kwok-cheung. Mr Leung is on his own admission a loan shark. According to Mr Leung he lent $5,000 to the applicant in June 1993. The terms of the loan included a provision that interest of $500 was payable every 10 days.

3. In the evening of 2 July Mr Leung received a telephone call from the applicant. The purpose of the call was to arrange a meeting for the applicant to pay some of the interest on the loan. A meeting was arranged outside the San Ho King Restaurant in Lai Chi Kok Road at 11pm that evening. Mr Leung went to the restaurant as agreed. On arrival he saw the applicant together with three other men.

4. The four men assaulted Mr Leung with their fists and with objects which came readily to hand. They dragged him into a staircase and robbed him of the items referred to in the charge. These included a mobile telephone, HK$6,700, various credit cards and keys and a Hongkong Shanghai Bank Superease card which can be used to obtain withdrawals from Mr Leung's bank account.

5. The men demanded that Mr Leung give them the PIN number that is the personal identification number of the Superease card so that they could withdraw moneys from the account.

6. When he gave them the number the three men who had been with the applicant departed and there is other evidence to the effect that an attempt was made to withdraw moneys from Mr Leung's account.

7. Before departing the men tied up Mr Leung and left the applicant to guard him. Mr Leung succeeded in untying himself and attempted to escape and raise an alarm. He was pursued by the applicant and a struggle and fight ensued.

8. An independent witness heard Mr Leung's calls for help and telephoned the police.

9. A police officer attended at the scene and gave evidence of finding the applicant and Mr Leung at the vicinity in a state of collapse. There was also medical evidence which was consistent with Mr Leung's testimony if it was believed.

10. The applicant went into the witness box and gave his version of what transpired. According to him he was himself a victim of the robbery. After his arrival both he and Mr Leung had been attacked by the men and robbed.

11. As can be seen from this short recital of the main facts the issue before Deputy Judge Jenkins was a very simple issue of fact. For the reasons he gave he accepted that Mr Leung's evidence was truthful and that the applicant's evidence had been fabricated. This being the case he found that the prosecution had proved the charge at the appropriate level.

12. In the grounds of appeal the main line of criticism directed against the trial judge's findings of fact was his willingness to accept the basically uncorroborated evidence of a person such as Mr Leung who was a self-confessed loan shark. In this connection it is clear from the learned judge's verdict that he was fully mindful of the dangers attaching to accepting such evidence.

13. Reference was also made to the inconsistency between Mr Leung's evidence of the state of play when the police arrived. According to Mr Leung the fight was still in progress whereas the police officer said that both men were lying in a semi-comatose condition. Mr Ramanathan for the applicant submitted that it was wrong for the trial judge to treat inconsistencies as being "matters of timing and sequence of events".

14. With respect we consider that it was perfectly proper to treat the inconsistencies referred to in this way. Inevitably in any description of events of this nature there will be inconsistencies in the evidence of witnesses who have seen what transpired. What is important is that the evidence hangs together in a coherent whole. It is of course necessary to bear in mind that it was a confused situation and that lighting conditions were less than ideal.

15. There was ample evidence for the learned trial judge to reach the conclusions he did. The conviction is not unsafe or unsatisfactory and leave to appeal is refused.