NIP WAI KEUNG v. R.

1992, No. 378
(Criminal)

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

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J U D G M E N T

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Mayo J.

1. The Applicant was convicted of Robbery after a lengthy trial before Deputy Judge Jones.

2. He was charged with 2 counts of Robbery. The first count related to a Robbery which took place at a Park and Shop premises at City One Plaza, Shatin on the 22nd December 1990 and the second at Park and Shop premises at Sun Tsui Commercial Complex, again at Shatin on the 6th January 1991. The Applicant was charged together with 3 other men on the first charge and 4 other men on the second charge.

3. The prosecution case on both these counts was to a very large extent dependent upon inculpatory statements allegedly made by these men. It was alleged that the Applicant himself had made a cautioned statement implicating himself with these Robberies.

4. It would appear from the learned judge's summing up that the Applicant's statement had been withdrawn from the jury after they had had an opportunity of seeing the contents of the document. It should, however, be added that the trial judge did give clear directions to the jury that they must completely disregard all of the contents of the said statement.

5. After excluding the statement the only evidence remaining outstanding against the Applicant was the alleged oral admission he had made when the Police raided the flat he was occupying with his lady friend.

6. It would appear that when this raid was undertaken the Police were investigating another case.

7. A Police party endeavoured to gain access to his flat on the 28th February 1991. When the Applicant's lady friend eventually opened the door, one of the Police Officers noticed that the toilet window was open. He looked out of the window which was on the 5th floor and saw a man, who he subsequently learnt was the Applicant, climbing down a drain pipe. The man slipped and fell. Other officers performing surveillance duties brought the Applicant back to the flat where one of the Police Officers informed him that they were arresting him in connection with a Robbery, car stealing and an unlawful detention case which had occurred in the Kwun Tong District.

8. According to the Police Officer the Applicant enquired what unlawful detention meant and went on to say that the reason that he had fled was on account of the Park and Shop robbery. He then gave sufficient particulars of this to connect it with the Shun Tsui Branch robbery.

9. The trial judge gave specific directions to the jury concerning this and made it clear that they could only find the Applicant guilty as charged if they were satisfied at the appropriate level that the Applicant had indeed made the verbal admission to the Police Officer.

10. In his grounds of appeal against conviction the Applicant puts forward 4 grounds of appeal.

1. The judge misled the jury, leading to mistakes being made and I was thus convicted.

2. Despite having read the evidences which were not produced in court, the jury was not dismissed. The jurors were thus misled and eventually convicted me.

3. Mistakes were made in the legal proceedings.

4. There were a lot of discrepancies among the evidences given by the police officers in court.

11. Before us the Applicant did not add anything of substance to these grounds.

12. The issue before the jury was a comparatively simple one. Did they accept the evidence of the Police Officer on this important matter of the alleged oral admission. They did so and nothing which the Applicant urges before us persuades us that there are any grounds to believe that the conviction was in any way unsafe or unsatisfactory. We decline to grant the leave which is sought and would dismiss the appeal against conviction.