R. v. CHOY NAI YIN

IN THE COURT OF APPEAL

1994, No.536

(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced one charge of robbery. This was particularized as follows: that he on 14th March 1990 outside the Wellcome Supermarket at 33 Cloud View Road, North Point in Hong Kong together with a person unknown robbed Chan Wai-fun of HK$6,200.

2. It was the Crown case that on 14th March 1990 at about 2 p.m. the victim Madam Chan left the Wellcome Supermarket and went to her car that was parked outside. She was approached by the applicant and another man, one of whom was armed with a 13cm long knife. Robbery was declared and she was forced onto the front passenger seat. One of the men drove the car and the other sat in the rear holding the knife. On reaching Causeway one of the robbers removed money, $6,200, from the victim's handbag. She was told to leave the car and the robbers then drove off. The car was located some hours later. Fingerprint experts lifted prints from the car and a print on the seat belt hasp was identified as that of the applicant. At an identification parade which took place some four years later the victim identified the applicant as the driver of the car.

3. An aggravating feature of the matter was that the knife was placed at her throat and that, when she tried to struggle and stop the car after it was taken away, she was stabbed in the right armpit and her left hand was cut.

4. The applicant was found guilty and sentenced to imprisonment for seven years. He now appeals against both conviction and sentence.

5. In his first ground he says that the trial judge did not explain his rights to him and that he did not confirm with him what his counsel had said. Because of this ground we adjourned the hearing and asked his solicitor Mr. Lee, who represented him at trial, to comment as to what had taken placed. Mr. Lee has done so and has stated that, as regards the admitted facts about which the applicant says he was never consulted, he consulted him and read them through to him and that the applicant was prepared to admit them. Mr. Lee says that it was only after that was done that he indicated to the court that the defence agreed to have the admitted facts tendered. Mr. Lee also states that he explained at length the right of the applicant to give evidence or to remain silent and that, after the luncheon adjournment when the applicant returned, he told him that he elected to remain silent and that he wished to call no witnesses. Mr. Lee states that he then had the applicant confirm that instruction to him in writing and has produced to us a document signed by the applicant confirming that he does not wish to give evidence. The applicant states that he signed that without reading it and that his rights were never explained to him. We have no hesitation in rejecting that suggestion and accepting Mr. Lee's version of what occurred.

6. The second ground which the applicant urged is that the trial judge should not have been prepared to act upon the identification evidence of the victim after a lapse of 4½ years. He submits that, although this was supported by fingerprint evidence, that evidence could have been left at any time.

7. The trial judge made the following findings in this regard:

"Miss Chan says that she committed the driver's face to memory, subsequently noticed the resemblance of the man in her memory with the well-known former coach of South China Football Club (and the Hong Kong team) and would recall 'her' driver whenever she saw Mr. Ng Wai Man on television or in the newspaper.

She goes further, she says that although they look alike she can tell the driver apart from Mr. Ng in her mind's eye."

He went on to say:

"The quality of the identification evidence in this case is excellent and unshaken in cross-examination. However, were that the only evidence in the case I would have to say that I would be giving the Defendant the benefit of the doubt."

He went on:

"In short, she recognized the Defendant 4 years later but his fingerprint was found inside the car just after the robbery. Each side of this testimony corroborates the other. The fact that the Defendant's fingerprint was found inside the car removes any lurking doubt that might have lain in my mind as a result of the long delay between robbery and identification parade."

The judge, as we have said, carefully examined the evidence and, having done so and given weight both to the identification evidence and the fingerprint evidence, came to the conclusion that the identification was one upon which he could safely act.

8. The evidence of identification plus fingerprint, unchallenged by defence evidence, was powerful evidence upon which the judge was entitled to rely when coming to his conclusion of guilt.

9. The applicant next complains that the sergeant in charge of the identification parade was not called. This came about because of the agreed facts. Agreed facts 6 and 7 were:

6. The aforementioned identification parade as properly conducted and the Defendant had no objection to the arrangements for the parade or to any of the other participants took part in it.

7. The Defendant took part in the aforementioned identification parade voluntarily."

There was, given that agreed fact no need to call the sergeant. He could have added nothing.

10. We have no doubt that there was sufficient evidence upon which the court could properly act to convict and that the trial judge, accepting that evidence, was entitled so to do. There is nothing in this matter which occasions us any doubt as to the propriety of the conviction.

11. The applicant has also appealed against sentence. When sentencing the trial judge said:

"This was a very serious armed robbery. This woman was abducted for 10 to 15 minutes and stabbed in her own car so that this Defendant and his accomplice could get their hands on her handbag. No wonder she told the court 'it felt like a lifetime'. She underwent a terrifying ordeal at the hands of a thug who has similar offences in his past."

The trial judge sentenced to imprisonment for seven years. This was well within the guidelines that govern sentencing in these matters. We have no hesitation in refusing to grant the application for leave to appeal against that sentence. There was nothing in the matters argued before us as regards sentence that warranted an appeal and we therefore order that there be loss of time for three months.