WONG TING HING and Others v. R.

IN THE COURT OF APPEAL

1994, No. 117
(Criminal)

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J U D G M E N T

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

1. The two Applicants were together with other men charged with a Robbery which took place in the evening of the 11th March 1993 at Industrial premises at Sheung Shui in the New Territories.

2. The facts were simple and straightforward.

3. The Applicants together with other men gained entry to the premises apparently on the pretext of being debt collectors and then by violent means and threats had subdued the caretaker of the premises and 29 other members of the staff as they came down in lifts to the area where the men had obtained access. The members of the staff were tied up and blindfolded.

4. One of the members of the staff Mr. Tang, who had seen what was happening succeeded in telephoning the police. Shortly after receiving the report, a police party arrived at the scene. Arrests were then made and the police officers involved gave evidence concerning this at the trial.

5. All of the Defendants who pleaded not guilty were tried in the High Court by Deputy Judge Woolley. The trial lasted from 7th February to 11th March 1994.

6. Numerous witnesses were called and it would appear that the prosecution case, in all its essential details, was not called in question.

7. Various appeals against conviction and sentence were lodged and some have been withdrawn.

8. As to the appeals against conviction we will very shortly summarise the situation concerning the two Applicants who are proceeding with such appeals.

9. The prosecution case against Mr. Ho Fei the 3rd Applicant is based upon the evidence of his presence at the scene when the police arrived and of his attempt to hide. He did not give evidence at the trial.

10. In his grounds of appeal against conviction he claims that the evidence against him was "scanty" and he referred to prejudice on the part of the trial judge.

11. Before us he claimed that he had suffered disadvantage as a consequence of not going into witness box as the judge had said no one had questioned the police evidence.

12. We cannot see any merit in this complaint. This was an inevitable consequence of the 3rd Applicant not going into the witness box.

13. His other complaints relate to details of evidence which were clearly matters which had been before the Court and take matters no further.

14. The position concerning the 5th Applicant Mr. Wong Fu Ming is similar to that of the 3rd Applicant save that in addition to his presence at the scene there was evidence to the effect that when he was apprehended by PC50227 he admitted that he had been caught red-handed. Also he made an inculpatory statement to the police. He also did not go into the witness box.

15. The grounds advanced by the 5th Applicant are also that there was insufficient evidence to warrant his conviction and that he had been unfairly treated by the Judge.

16. Before us he referred to an application which had been made to discharge the jury. He also complained about the quality of his legal representation at his trial. There was no substance to his complaints.

17. We do not think that it would be an exaggeration to state that these men were caught flagrante delicto.

18. Nothing which has been said by either of them begins to cast any doubts upon the safety of the convictions recorded against them.

19. The prosecution case was a strong one. The summing up to the jury by the Deputy Judge provided them with the necessary assistance.

20. Leave to appeal against convictions are refused for both of these Applicants.

SENTENCE

21. The learned Deputy Judge proceeded on the basis that sentences of 9 years' imprisonment should be passed after trial and that a discount should be given for pleas of guilty so that the sentences should be 6 1/2 years. He reached this conclusion after deciding that 10 years was an appropriate starting point.

22. As can be seen from the very short summary of facts, a measure of violence was resorted to and a considerable number of innocent parties were

put in fear and trepidation. Industrial premises were invaded by a group of men in what appears to have been a carefully planned operation. There is nothing in the 2nd Applicant's personal circumstances which seems to justify him being treated differently to the other men. We can see no justification in interfering with the sentence which was imposed. The application for leave to appeal against sentence is accordingly dismissed.