R. v. CHAN MAN YUNG

IN THE COURT OF APPEAL

No. 455 of 1994
(Criminal)

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J U D G M E N T

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Keith, J. (giving the judgment of the court):

1. The Applicant was tried by Sears J. and a jury in the High Court on one count of robbery. He pleaded not guilty. On 16th August 1994, he was convicted by a majority of 6 to 1. He was sentenced to 12 years' imprisonment. He now applies for leave to appeal against his conviction. He is not represented, his application for legal aid to pursue this application having been refused.

2. The fact that a robbery had taken place was not in dispute. The defence admitted that 3 or 4 men, two of whom were armed with knives, had robbed the occupants of a van of cameras and accessories worth about $5.1m. The only issue for the jury was whether they were sure that the Applicant had been one of the men who had carried out the robbery.

3. The evidence which led the police to the Applicant was what were admitted to be the Applicant's fingerprints on a roll of adhesive tape found on the floor of the lorry which the robbers had used to ram the van in which the cameras were being transported. That was an agreed fact. However, the judge fairly told the jury that the mere fact that the Applicant might at one time have handled the roll of adhesive tape was not evidence from which the jury could, by itself, infer that the Applicant had taken part in the robbery. The judge told the jury that they should regard the fact that the Applicant's fingerprints were on the roll of adhesive tape as merely explaining how it was that the police came to interview the Applicant about the robbery in the first place. In our view, that was the fairest direction which the Applicant could possibly have expected the judge to give.

4. The evidence which implicated the Applicant in the robbery was his alleged confession to it. The Crown's case was that following his arrest he was interviewed by a police officer, who claimed that he had made a contemporaneous record of the questions asked and the answers given, which the Applicant had signed as correct. In that interview, the Applicant is alleged to have confessed to the robbery. In dealing with this evidence, the judge correctly directed the jury that they had to decide whether the Applicant had actually said what the record purported to attribute to him, and if so, whether what the Applicant had said was true.

5. Those were questions for the jury to decide. In his summing up, the judge reminded the jury that the Applicant's evidence had been that he had never said what the record purported to attribute to him, that the confession attributed to him had been made up by police officers, and that he had only signed the record as correct because he had been told that he had better co-operate or his younger brother would be arrested. Having now seen a transcript of the Applicant's evidence, it is clear that the judge's summing-up fairly summarised the relevant parts of the Applicant's evidence.

6. However, there are three points which the Applicant made when we first began hearing this application which caused us to adjourn the hearing, so that a transcript of the Applicant's evidence could be obtained, and other inquiries made. First, the Applicant's case was that on the day of the robbery, he had been working at his newspaper stall. He claims that one of his regular customers could have seen him there that day. He was unable to locate that customer before his trial, and he claims that he therefore asked his counsel to apply to the judge for an order summoning his customer to attend court and give evidence at his trial. He complains that his counsel told him that he, his counsel, would not do so. No such application was made, and in the event the customer was not called as a witness. That complaint is not borne out by the material now before us. The Legal Aid Department's file records that a statement from a potential witness, Tong Lai Wah, was obtained on 6th May 1993. The trial commenced on 24th May, and the evidence relating to the Applicant's interview was ruled admissible on 25th May following a voir dire. The trial was then adjourned. Subsequently, the Applicant absconded, and following his arrest a new trial commenced on 8th August 1994. The Crown's case concluded on 12th August. By then, Tong Lai Wah could not be traced. However, the Applicant was content for the trial to continue. On 15th August, he signed a document which read:

"The witness I was intending to call on my behalf - namely, Tong Lai Wah, has not been traced by my girlfriend. In the circumstances I am content for the trial to continue without this witness being called."

Today, the Applicant claims that he never signed that document, and tells us that Tong Lai Wah is present in court. We propose to treat the Applicant as having applied for leave to call fresh evidence, but in the circumstances, and in view of the document which it is alleged he signed, we refuse that application.

7. Secondly, the Applicant had a number of previous convictions. He claimed that those convictions slipped out in the trial when he was being cross-examined by counsel for the Crown, and was asked how, when he took the affirmation at the beginning of his evidence, he was able to read it without difficulty. We have located that passage in the transcript of his evidence. What he was asked was: "How many times have you read it before in this case?" There was no reference whatever in the questions and answers which then followed, or anywhere else in his evidence for that matter, to the fact that he had previous convictions.

8. Finally, the Applicant claims that he was anxious to give evidence as to how his fingerprints could have been on the adhesive tape in a wholly innocent way. The lorry which the robbers had used had been found just outside his home. However, the Applicant told us that he wanted to give evidence that if the adhesive tape had been found near the lorry, he might have picked it up out of curiosity quite innocently. He claims that his counsel refused to permit him to give that evidence. For our part, we can well understand why experienced counsel would have given strong advice to the Applicant not to indulge in that type of speculation when giving evidence, especially as it would not explain how the adhesive tape got back into the lorry. After all, the Applicant would be highlighting the fact that the lorry used by the robbers had been found outside his home. But, in any event, the transcript of the Applicant's evidence-in-chief shows that his counsel did give him the opportunity to give this evidence if had he wanted to. Having reminded the Applicant that adhesive tape with his fingerprints on it had been found on the floor of the lorry, his counsel asked the Applicant: "Have you any idea how that happened?" If the Applicant had wanted to give the evidence which he claims his counsel refused to permit him to give, he could have given it then if he had wanted to. He did not do so.

9. There is nothing in any of the points which the Applicant raises, nor have we been able to discern anything in the papers which has caused us to be concerned as to whether or not the Applicant had a fair trial. For these reasons, this application for leave to appeal against conviction must be refused.