R. v. CHUNG CHING TAK AND ANOTHER

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J U D G M E N T

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. On 9th December last year Chung Ching Tak ("1st defendant") was convicted unanimously by a jury of robbery and sentenced by Bewley, J., to 10 years' imprisonment. Lee Ting Fu ("3rd defendant") was convicted by a majority of the jury, 6 to 1, of the same offence. He applies in these proceedings for leave to appeal against both the conviction and the sentence. The 1st defendant applies only with regard to sentence.

2. The robbery took place in September 1990 at commercial premises in Shek Kip Mei. Four or five men burst into those premises. They were carrying knives and one of them used his knife to slash the face of the proprietor. The men tied up the proprietor and his male staff; also the two daughters who helped him in his business. They gagged and blindfolded all of them. Then they forced the proprietor to write out a cheque for $160,000. The cheque was taken to a bank but it failed to produce money as the proprietor had told them it would. They returned frustrated and ransacked the premises. They found a savings bank book which showed a balance of some $300,000. They forced the proprietor to go to the bank and draw out $80,000, which money they took, adding it to the $2,000 they had earlier taken from his wallet and to the $500 which belonged to one of the daughters. In the course of the robbery they threatened on two occasions to rape the daughter and to set fire to the premises with kerosene, burning them all alive. Finally the men left, taking with them two antique pictures, an antique vase and that daughter's watch.

3. There is no dispute that the robbery took place or that it did so in the way we have just described. The only question for the jury, as far as it concerns us today, was whether the 3rd defendant was one of those who took part.

4. The evidence against the 3rd defendant was identification by the proprietor and the proprietor's male staff at an identification parade in December. (At the same parade the daughter failed to pick him out but picked out another person who was not a participant in the crime.) In addition he made a statement after arrest which by itself, if true, would be conclusive of his guilt.

5. In the written grounds in support of his application the 3rd defendant suggests that the police gave false evidence and that he was mis-identified. These two matters were squarely before the jury. They are essentially matters within the jury's scope of decision and there is no ground in that respect for this Court to interfere.

6. Today he has further complained that his counsel failed to bring out, either by cross-examination or in his closing address to the jury, that neither identifying witness mentioned that he had an obvious tattoo. We cannot tell from the papers before us whether that was so or not, but certainly the judge made no mention of it in his summing-up. The 3rd defendant has shown us his tattoo which is on the upper part of his arm above the elbow. It does not appear to us that in the circumstances it would have been as obvious as he would like us to think, particularly where the witnesses were, as they said, concentrating upon the facial features of the culprits.

7. For these reasons we see no merit in the application for leave to appeal against conviction and it is refused.

8. As to sentence the 3rd defendant is aged 20. He is single. He has previous convictions in 1986 for attempted theft and then for robbery in a taxi. For the first he was placed on probation. For the second he was sent to a boys' home and the probation order was discharged. In passing a sentence of eight years the judge made allowance, perhaps generously, for what he described as the defendant's youth.

9. Today we have seen a letter written by the defendant's elder brother and his mother. It illustrates only too clearly the grief and sorrow which his conduct has brought upon the rest of his family. It is couched in terms that are extremely sensible and do credit to the rest of the family. Having regard to the crime and its character that we earlier described the judge's sentence cannot be faulted and the 3rd defendant's application in that respect is dismissed as well.

10. The 1st defendant has asked us to adjourn his application so that he may instruct a lawyer. He had taken steps earlier to that end but they had come to nothing. The request for the adjournment was made earlier to this Court in a letter dated 2nd September. Unfortunately no answer was returned to that letter and in that circumstance we think it appropriate that we should give him the time he wishes to consult another lawyer. His application is. therefore adjourned to a date to be fixed, that date to be not earlier than four weeks from today.