POON SING KIU v. R.

IN THE COURT OF APPEAL

1996, No. 111
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against conviction and sentence. He was charged originally with four offences. The 1st charge was loitering, contrary to section 160(1) of the Crimes Ordinance, Cap 200. The 2nd charge was possession of an offensive weapon, a paper cutter, contrary to s17 of the Summary Offences Ordinance, Cap 228. The 3rd charge was robbery committed on 8 August 1995 and the 4th charge likewise was robbery committed on 25 August 1995.

2. The applicant had pleaded guilty to the possession of an offensive weapon charge (charge 2) and was found guilty as averred on charges 1 and 3. He was found not guilty of robbery on charge 4 but guilty on the alternative lesser charge of theft.

3. The sentences passed by the District Judge were as follows:

1st charge - 3 months;

2nd charge - 9 months, the sentences on the first two charges to run concurrently.

3rd charge - 3 1/2 years;

4th charge - 2 years, the sentences on charges 3 and 4 to run concurrently but consecutive to the sentences on the 1st and 2nd charges, making a total of 4 years and 3 months.

4. The judge's findings can be summarised shortly.

5. On 7 September 1995 the applicant was acting suspiciously outside a market and was stopped by the police and searched. The paper cutter was found: this constituted the 2nd charge to which he pleaded guilty.

6. When interviewed he admitted having been involved in the robberies at Ma Tau Wai Estate the subject of the 3rd and 4th charges.

7. It was admitted for the purposes of the trial under s65C of the Criminal Procedure Ordinance Cap 221 that two robberies had taken place at Ma Tau Wai Estate, one on 8 August 1995 when the victim was hit on the head with a hard object inside a lift and a gold necklace was snatched from him, the other on 25 August 1995 when again a gold necklace was snatched from the victim inside a lift. This time the victim was punched on the nose.

8. The applications before us relate solely to charges 3 and 4.

9. The Crown case on the two robbery offences rested solely upon the applicant's admissions made to the police. These consisted of (1) verbal statements made when he was first arrested which were then subsequently written down by the police constable and acknowledged by the applicant to be correct, and (2) answers to questions put to him by the police at the Kowloon City Police Station.

10. The question of the voluntariness of those statements and their admissibility was gone into carefully by the judge. The applicant says in this court that they were made under threat, and that force had been used on him. Those allegations were thoroughly explored in the court below and were rejected by the judge; we see no reason to re-open the issue in this court.

11. There was no question about the gold necklaces having been snatched on the days and at the places alleged. Those were admitted facts at the trial. Those admissions by the applicant together with the confession statements constituted proof of his guilt in relation to charge 3. But as to charge 4, the judge doubted if the amount of force admittedly used was sufficient to constitute robbery and he gave the applicant the benefit of the doubt. He therefore acquitted him of robbery and convicted him of the lesser offence of theft. We see no reason to interfere with the convictions and the application for leave to appeal against conviction is dismissed.

In relation to the sentences we are only concerned with the sentence of 3 1/2 years imposed in relation to the robbery conviction and of 2 years in relation to the theft conviction, the two to run concurrently. They were well within the judge's discretionary powers. We see no ground whatever for interfering with those sentences and the application is likewise dismissed.