HKSAR v. KEI PAK TUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 301
(Criminal)

---------------------

----------------------

J U D G M E N T

----------------------

Mayo, J.A. (giving the judgment of the Court):

1. The Applicant was charged with another man with robbery and by himself of being in Hong Kong without the permission of the Director of Immigration. He pleaded guilty to the immigration offence. After a trial before Judge Longley in the District Court he was convicted of the robbery offence. He now seeks leave to appeal against this conviction.

2. A Miss Chan gave evidence that when she was returning home in the early hours of the morning of 17 February 1998 to the Tin Ping Estate at Sheung Shui, she realised that she was being followed by two men. One of the men grabbed hold of her and pushed her to the ground. She was relieved of her handbag which contained a portable telephone and $850 made up of one $500 note, three $100 notes and a $50 note. She tried to follow the men unsuccessfully. However she made a report to the police.

3. Later in the day the driver of a container lorry inspected his vehicle prior to driving it over the border to the mainland. He saw two men hiding there. Police and Immigration Officials were called to the scene. After their arrival the men were searched. One of the men was the Applicant. The man who appeared with the Applicant in the court below was the other man and he was found to be in possession of a portable telephone which was the one which had been stolen from the victim of the robbery. The Applicant was found to be in possession of $850 in exactly the same denomination as the notes which were stolen. It was also ascertained that the men were illegal immigrants.

4. At the trial below the Applicant gave evidence. According to him after he came over the border he became separated from his co-accused. He then referred to a phantom 3rd man who he claimed had been with his co-accused. The Judge dealt with this evidence in this way:

"The defendant's explanation was totally implausible. It was clear to me that it had been fabricated to fit with the circumstances that he could not dispute. If true, it would have involved a series of remarkable circumstances. It would have involved the defendant losing his two companions very shortly after entering Hong Kong. It would have involved the defendant coincidentally meeting up with YEUNG in Fanling between 4 and 5 a.m. This must have been after a separation of at least two hours, bearing in mind that the robbery was around 2 a.m. It would have involved YEUNG somehow losing the third man, with whom he presumably must have committed the robbery, in the interim. It would have involved the defendant just happening to have the same amount of money in the same denomination notes as had been taken from the victim during the robbery. It would have involved YEUNG and the defendant deciding to sleep not just under but on a lorry which just happened to be driven back to the border. The defendant admitted that he had been asked by the police whether he had come alone and that he had replied that he had come with YEUNG too. I did not believe the defendant's explanation as to why he had not mentioned the third man. If, as he said, he had said it partly at least because he knew YEUNG had committed an offence, that is a reason why he should have mentioned this third man. This is especially so when he was interviewed at 1700 hours on 19 February about a robbery in which it was alleged two men, including YEUNG, had been involved and in which a mobile telephone had been allegedly stolen. The reasons given by the defendant for wanting to enter Hong Kong were completely unconvincing. I did not believe them. I am in no doubt that the defendant was the second man with YEUNG who robbed Madam CHAN in the early hours of 17 February 1998."

5. In his application the Applicant claims that there was doubt as to whether it could be inferred that he was the other man involved in the robbery. Before us, he did not add anything of any significance.

6. We can see no reason to interfere with the findings of fact made by the Judge. This conviction was in no way unsafe or unsatisfactory and this application is dismissed. As this application is devoid of any merit we order that three months of the time that the Applicant has spent in custody will not count as part of the sentence he is serving.