THE QUEEN v. LO KIN KWOK AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. On 18th July of this year CHAN Siu-ming was convicted after trial of two offences of robbery and two of theft. Against one of those convictions of robbery he does not persist in his application for leave to appeal. In relation to the other robbery and two convictions for theft he stands on his application.

2. The conviction for robbery against which Chan does seek leave to appeal involved an event at Kai Lim Road on 7th March of this year when $8,500 in cash were taken from a taxi-driver in circumstances involving the use of force. The prosecution case depended on a cautioned statement by Chan which admitted that offence. He said below that he made this state-ment while frightened from which we infer that he was telling the Court that the confession was untrue. It was the second of three statements which the applicant made and which the learned trial judge held, after a trial within a trial, to have been made voluntarily. The applicant has shown us no ground which would entitle us to go behind that finding.

3. In his first written statement the applicant admitted the other robbery in respect of which his application is not pursued. In that state-ment he also admitted using the victim's cash dispenser card to obtain payments of two sums of $400 and $80 respectively. The victim's bank account was duly debited with those sums.

4. In his third statement, the applicant described the way he had returned both bank cards taken from the victim to the co-accused, LO Kin-kwok, who has abandoned his applications to this Court.

5. In the circumstances we can only refuse the applications for leave to appeal against conviction.

6. In relation to the application for leave to appeal against the sentences passed the learned trial judge took into account Chan's relative youth. He was only 18 years of age and had a clear record. But one of the offences, the one in relation to which application for leave to appeal against conviction was not pursued, a knife was used to threaten a woman. A number of men took part. The offence took place at night-time and the victim was tied up, blind-folded, gagged and threatened. This, for a young man who had not been before the Courts before, was a very grave and very worrying crime. The learned judge accepted that he was not the ring-leader. As against that the applicant did not admit his guilt and show remorse. A trial was required before convictions. LO Kin-kwok, the older man, pleaded guilty. Perhaps that is why the disparity between the sentences passed on the applicant and upon him was not greater. We do not think that circumstances have been shown which would entitle us to find that the trial judge erred in any way in his approach to the very difficult problem of sentencing. The application for leave to appeal against sentence is also refused.