R. v. CHONG LEE FUNG AND ANOTHER

IN THE COURT OF APPEAL

1996, No. 572

(Criminal)

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J U D G M E N T

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Liu JA: (giving the judgment of the Court)

1. The applicants CHONG Lee-fung and SIN Wai-kin came with others defendants before Deputy Judge Pang. Applicant Chong is legally represented and applicant Sin appears in person. The applicant who is legally represented faced a charge of rape. It was alleged against him by the prosecution that he, applicant Sin and others raped Ms Hui on the 1 December 1995 inside a room of Kam Pik Villa, on the 1st floor, at No. 79, Yeung Uk Road, Tsuen Wan. He stood trial and was convicted. At the same trial, it was alleged against applicant Sin that on 1st December 1995 at the Standard Chartered Bank, Emperor Plaza, Tsuen Wan, he stole $1,900 from account number 000-003-40723741123, belonging to Ms Hui. He was convicted by the jury of this theft charge. Applicant Chong, through his counsel, applies for leave to appeal against conviction, and that is the only matter placed before us today. Applicant Sin applies for leave to appeal against sentence himself.

2. The facts could be shortly stated as follows. On 1 December 1995, in the New Oriental Palace Nightclub in Tsim Sha Tsui, Ms Hui entertained customers. She was keeping their company in a drinking session. She consumed a considerable quantity of alcohol, but she claimed that she was still sober or at least she knew what was going on. One of the customers spoke to her in an ordinary voice on that occasion. The content of their conversation was not specified. Early in the morning on the same day, after she had finished work, she was waiting for transport to go home with another girl from the same nightclub, when she was grabbed and pushed into the rear passenger seat of a taxi by which she was taken to the villa premises described in the rape charge. She was intoxicated. Inside the room, she was raped several times and she was unable to make any visual identification of her attackers. She heard an 'ordinary voice' nearby asking, "ready yet?". It was primarily on account of the direction of the trial judge on this aspect of voice identification that applicant Chong was convicted by the jury with a majority of 5 to 2. Other defendants were acquitted by the jury of rape. Suffice it to say and it is not disputed before us today that the judge made mistakes in his description of the voice itself as well as in what was allegedly said by the man with an 'ordinary voice'. We need not set out the various errors which brought about the confusion set out at p. 60. p. 94 and p. 18 of the transcript.

3. The attendant Mr Po also gave evidence. He told the jury that a man rented a room into which four men, including the one who had rented the room carried Ms Hui. The jury was also directed that the four men at one time left the room and the villa premises but shortly thereafter returned to it. Again it would be sufficient for our present purposes to say that no or no sufficient direction on voice identification and Mr Po's identification was given by the judge in his summing-up. We need not be troubled by the other grounds set out in the Perfected Grounds of Appeal against conviction. Clearly, in the circumstances, it would be unsafe to allow conviction against applicant Chong to stand. We would allow his application and treat his application for leave to appeal against conviction as the appeal proper. We allow his appeal and quash his conviction. That is the only matter before us that concerns applicant Chong.

4. Applicant Sin applies for leave to appeal against sentence in person. In his written application, he complains that the sentence of 21/2 years imposed upon him for the theft conviction is too long. Today, he supplements his complaint with the news of his father's death on 15 August 1996. He wishes to be released earlier so that he could return to his family. The facts are as stated in the theft count. For activities of that nature, we can find no room for criticising the sentence passed on applicant Sin by the trial judge. The sentence imposed on him is neither wrong in principle nor manifestly excessive. Consequently, his application for leave to appeal against sentence must be denied and we dismiss it.