R. v. CHAN CHING KWOK

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J U D G M E N T

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

1. The Applicant CHAN Ching-kwok was convicted by His Honour Judge Whaley in the District Court on 3rd September 1991 on two charges of robbery and one of assault with intent to rob. He was sentenced on 18th September 1991 to eighteen months' imprisonment and to two and a half years' imprisonment on the robbery offences and to eighteen months on the assault with intent, each of the sentences to run concurrently. He now seeks leave to appeal against his conviction on the three charges.

2. He was charged and tried with his wife Bangon Sae Tew. The Judge found with respect to the first charge of robbery and the charge of assault with intent which took place on 5th August 1990, that the victim of the first robbery, one WU Mui-kiu, was in a lift with the two Defendants in the Kwai Shing Estate. All three got out on the 11th floor where Wu's daughter LIN Mei-kuen, the victim of the first robbery, happened to be waiting for a lift. Wu proceeded to her flat but on the way was attacked by the two Defendants. The Applicant, she says, tried to snatch her gold necklace. Her shouts brought her daughter to the scene and she was told by Bangon that Wu owed her money from mahjong which Wu denied. Both Wu and Lin were attacked and in particular Wu assaulted by the two Defendants. They vigorously fought back but in the process Lin's gold bracelet was snatched. A neighbour responded to their shouts and the two Defendants made off, leaving behind a shoulder bag containing a wallet with $5,000 in it. They also left behind a 5 inch knife in a sheath. Later the Defendants returned for the wallet and there was an exchange between them and Wu and Lin which continued until the police arrived, they having been summoned by Lin.

3. The second robbery charge related to an entirely different victim, one Madam FAN Mui, on a different occasion on 23rd July 1990, at a different block of the same Estate. The Judge found on the evidence that Madam Fan was followed by the two Defendants from a bank to the Estate and into a lift. All the other passengers got out on the 17th floor and the Defendants robbed her, i.e. Madam Fan, between the 17th and 19th floor, the Applicant displaying a knife and Bangon cutting off her gold necklace and bracelet. He accepted also that she took Madam Fan's purse with $350 and her identity card and that Madam Fan identified the Applicant at an identification parade on 10th August 1990.

4. In his Notice of Application for Leave, the Applicant relies on the following grounds. He says that the Judge failed to take into consideration doubtful points raised by his Counsel when he cross-examined the witnesses and that he failed to give consideration to doubtful points in the witnesses' evidence, that the Judge found him guilty solely on the basis of one-sided argument and that the conviction is unfair.

5. Before us today he has amplified these grounds in some considerable detail but he had not given evidence of them before the Judge. He says this was because his Counsel  explained to him that he did not need to give evidence and that any doubts in the Prosecution witnesses evidence would enure to him. That was quite right, but the Judge was entitled to have regard to all of the evidence before him and I shall return to that and the version of events which he has sought to give us today.

6. The Applicant has made clear that the doubtful points he is concerned about in relation to the two offences that took place on 5th August were those that were referred to by the Judge as two somewhat unusual features that emerged in the case. The first was Bangon's claim from the outset that Wu owed her a mahjong debt of some $2,000 which she repeated when the police arrived at the scene. It had been taken further by the Applicant having asked her whether it was a case of mistaken identity of Wu. The second unusual feature was that even after they knew that the police had been called the Defendants made no attempt to leave and remained at the flat.

7. It is clear from the record that although the Applicant did not give evidence, his version of the matter was put to the first two Prosecution witnesses, i.e. Wu and Lin, by his Counsel in some detail and that the Judge fully grasped that version. He dealt with it in this way. He said with respect to the first unusual feature that he had no hesitation in accepting the evidence of the first Prosecution witness, i.e. Wu, supported by Lin, that she had not ever played mahjong except once or twice on festivals with her grand children and had never even seen the 2nd Defendant before, let alone played mahjong with her. He took the view that the story of the mahjong debt appeared to have been a decoy or cover put up by the 2nd Defendant to provide a pretext for the attack on Wu, and that even if, which he did not accept, she had thought that Wu owed her money, the Defendants' subsequent actions nevertheless constituted an assault with intent to rob Wu.

8. As to the second feature, the Judge said that in staying at the scene when they knew the police were on their way the Defendants apparently were committed to trying to recover the wallet with its contents of nearly $5,000 and that it seemed that they believed they could brazen their way out of the situation having disposed of the bracelet in the meantime. He went on to say, and this is crucial, that there was no reason for him to doubt the credibility of the versions given by the 1st and the 2nd Prosecution witnesses. They impressed him as essentially honest witnesses and there was no evidence from the Defendants to controvert what the witness had said.

9. I turn then to the other robbery charge. Madam Fan gave evidence of identifying the Applicant and the Judge correctly identified this as the point that the Applicant questioned in relation to her evidence on the second robbery charge. He put it this way:

    "The issue on this charge is whether Madam Fan has correctly identified the Defendants as the man and woman who robbed her.

10. We have read the evidence of the Chief Inspector who was in charge of the identification parade. The Judge said that the officer was an experienced officer who was scrupulous to ensure that the parade was fair and that the Defendant did not in any way attract attention or stand out for any reason. He went on:

    "Madam Fan's identifications of each Defendant was clear and confident. The only point to note in that respect is that when she identified D1 (the Applicant) he was standing at position No.9. Madam Fan pointed at him and said 'it was NO.6' - having apparently mistaken the 9 for a 6 ...."

11. That clearly and effectively disposes of the points raised by the Applicant in relation to the identification parade. The matter of his blood stained T shirt was certainly pursued in cross-examination. Having looked at the record of evidence we cannot see that any justified complaint arises out of the matter of the blood stains, or of the alleged irregularities of which the Applicant complains. Clearly the Judge carefully addressed all the evidence; he paid particular care to the alleged doubtful points to which the Applicant refers. We find no fault in his conclusion and no merit in the grounds upon which the Applicant has sought to rely. Accordingly we refuse the application for leave.