LAU CHI KEUNG v. R.

IN THE COURT OF APPEAL

1992, No. 505
(Criminal)

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J U D G M E N T

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

1. This is an application for leave to appeal against convictions of robbery and attempted robbery and an application for leave to appeal out of time against concurrent sentences of 10 years imprisonment passed in respect of a charge of robbery and the one of attempted robbery.

2. It was pointed out that in relation to the first count, on which the applicant was acquitted, there was a robbery at the Park'N Shop Supermarket at Ping Shek Estate on the 10th June 1991. However, the staff of the Supermarket were unable to identify the applicant as one of the robbers who took part in that robbery and the Crown relied entirely on a statement which the applicant had made when he was arrested in respect of the later offence of attempted robbery.

3. The second count related to a robbery which took place on the 7th July 1991 in the Park'N Shop Supermarket in King Lam Estate. Again there was no evidence in respect of that offence apart from the applicant's own confession statement. For this offence, however, he was convicted by a majority of five to two.

4. The third count related to an attempted robbery of the same Supermarket, the Park'N Shop Supermarket in King Lam Estate on the 2nd August 1991. Again, there was no evidence from the victims but in addition to the applicant's statement there was evidence of police officers who arrived at the scene who followed the robbers and arrested the applicant in a taxi which they had seen departing from the area of the attempted robbery. The applicant was convicted by a unanimous verdict of that offence.

5. When this application first came before this court it seemed that there was a possibility of inconsistent verdicts and a full transcript was called for. It is, however, now clear that in relation to the charge of which the applicant was convicted by unanimous verdict there was evidence in addition to the applicant's confession statement upon which the jury would have relied. The reasons for doing so in relation to the second count are somewhat more tenuous but we do not consider these verdicts are so inconsistent so as to be unsatisfactory.

6. Today, the applicant suggested to us that at the trial his previous criminal record was placed before the jury before they reached their verdict.

Having studied the transcript we are satisfied that that was not done and the previous convictions were only put before the judge after the verdict had been entered. There was during the trial some questions raised because the Crown had attempted to put in verbal statements made by the applicant following an attempted reconstruction of the offences. This had no relation whatever to any previous convictions. Having taken instructions from the applicant, his counsel at the trial did not seek to discharge the jury on that basis.

7. We are satisfied the convictions are not unsafe or unsatisfactory and the application for leave to appeal against conviction is refused.

8. The applicant also seeks leave to appeal against sentence out of time. We are, however, satisfied that he must have been aware of his rights to appeal against sentence and he did not do so. There are no grounds for granting leave to appeal against sentence out of time. We have however looked at the sentences in relation to the facts of these offences and the applicant's previous convictions. We are satisfied that the sentences are not ones with which we should interfere. The application for leave to appeal against sentence out of time is also refused.