HKSAR v. HA CHUNG SHING

CACC 121/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 121 OF 2000

(ON APPEAL FROM HCCC NO. 271 OF 1999)

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

1. The applicant was indicted for one count of aiding and abetting other persons to commit robbery. Initially he pleaded not guilty and stood trial before Deputy Judge Longley in the Court of First Instance. He changed his plea to one of guilty after his caution statement was admitted after a voir dire. The judge sentenced him to 6 years' imprisonment. He now applies for leave to appeal against conviction and sentence out of time.

2. The particulars of offence read :

"HA Chung-shing, on an unknown date between the 1st day of January of 1991 and the 17th day of January 1991 in Hong Kong, aided and abetted KWONG Kin-kuen alias 'Ah Kwong', a person known as KONG Chuen alias 'Ah Chuen', a person known as 'Ah Tung', a person known as "Ah Pang' and other persons unknown to commit a robbery at the Hang Fai Electrical Appliances Company at Tai Po, New Territories."

3. The summary of facts which was admitted before the Judge is as follows ：

"On 17 January 1991 a robbery occurred at the Hong Fai Electrical Appliances Company at No. 3, Yo Pick Street, G/F, Tai Po, New Territories. At about 11:00 am five culprits entered the premises and threatened the proprietor (PW1) NG Wai-man and other staff members present with a pistol and knives. The other staff present at the time were (PW2) YAU Kam-loi, (PW3) LAM Kam-wah, (PW4) CHAN Sau-wan, (PW5) NG Wai-ping, (PW6) CHUNG Chi-hung, (PW7) SO Lau-sang and (PW8) CHUNG Kwok-sing. The victims were tied up with wire and robbed of cash and property to the total value of HK$283,900, (PW8) was punched on the face once and two to three times on the back for not taking out his money voluntarily.

Police were alerted during the course of the robbery when PW1 covertly activated a secret anti-burglary alarm leading to a security company.

In response to this alarm a team of five police officers arrived at the scene. They were armed with service revolvers. When they arrived at the outside of the premises, one of the culprits walked out and invited them to go in and take a look. The culprit then produced a pistol and pointed it at the police officers and ordered them all inside. They were ordered to squat down and their service revolvers were taken from them. The culprits then fled the scene. Three of the service revolvers were later recovered from a taxi driven by WONG Cheung (PW16) after he had picked up three of the culprits outside the Tai Po office of the Labour Department in Kwok Fuk Road some time after 11:40 am on 17 January 1991. The fourth service revolver is still missing.

At 0:25 hours on 25 January 1991 during police investigations at Room 1713, Sun Wo House, Tai Wo Estate, Tai Po DPC 17626 (PW23) found hidden underneath the bathtub in the bath room of the flat, a type 54 semi-automatic pistol which had been used in the robbery, together with one magazine, one cartridge case, seven live rounds of 7.62 mm calibre ammunition. At 1:50 hours on 25 January 1991, these articles were examined at the scene by Chief Inspector Douglas Paton, a ballistics and firearms expert. He found that due to a badly pitted chamber fired cartridge cases were not automatically extracted, the pistol was otherwise in working order.

On 25 May 1991, the Applicant was escorted from Macau to Hong Kong by two police officers. He was arrested and later made a caution statement. In that caution statement, he admitted that he knew the robbery was committed at the Hong Fai Electrical Appliance Company and that he had been earlier invited to take part in it. Although he declined the offer to take part in the robbery, he admitted that around mid January one of the robbers Ah Chuen handed the pistol to him to deliver to Ah Kwong, one of the other robbers. He was handed the pistol while having a meal at the main hall of the I/F of Hsin Kuang Restaurant in Ngau Tau Kok Road, the applicant then took it downstairs and gave it to Ah Kwong who at the time was sitting on board a dual purpose van which at the time was being driven by Ah Tung, another robber. He was released on bail on 14 August 1991 by a magistrate in the Eastern Magistracy. He absconded bail on 11 September 1991. On 8 April 1999 he was brought back from Macau to Hong Kong by a detective senior inspector, a detective police constable and a sergeant and he was re-arrested and charged with the present offence."

4. His grounds of appeal on conviction are set out in a document which was written in Chinese. What it boils down to is this :

"1. The record of the interview was neither full nor true and cannot be used as evidence to prove his guilt. He also said that the caution statement was different or contrary to the statement given by Kwong, the man who received the pistol from him;

2. He said at the time he was suffering from insomnia and was not in perfect control of himself. He was worried and confused;

3. He blamed his counsel for giving him wrong advice that he would be given a light sentence if he pleaded guilty. Furthermore, his counsel had lost interest in his case and was putting pressure on him to plead guilty."

We are unable to find any substance in these grounds. The record of interview was admitted after a contested voir dire and was accepted by the Judge as a true. In relation to the allegations against his counsel, Ms Susanna Li has filed two affirmations setting out the facts leading up to the change of plea. We have read the affirmations and we are satisfied that the contents represented the truth. The fact that the plea was tendered completely and voluntarily was supported by a signed statement of the applicant. This statement reads :

"I, Ha Chung Shing, having been explained of my rights by Counsel, I have considered the matter, now decide to admit to the charge laid against me. I make this decision without being pressed by external pressure, (it is) completely out of my own decision, I sign my name to confirm the same. Signed, Ha Chung Shing, Witness, Philip Leung. Dated 2 March 2000."

5. We are satisfied that it was an entirely voluntary and irrevocable plea tendered by the Applicant and it is not open to him to seek leave to appeal against this conviction. He has not even overcome the first hurdle of satisfying us that the plea was not valid because it was not a voluntary plea. The evidence clearly points to the contrary. The application has not even got off the ground, and must be dismissed.

6. As to the application for leave to appeal against his sentence out of time, the explanation put forward by the Applicant was that at that time it did not occur to him that he should appeal against sentence. It was later that after reading some newspaper reports that he realised that he had not been given a sufficient discount for his plea. His application is out of time by two months and we are not satisfied that he has given sufficient reason or explanation for the delay. In any event, we are satisfied that the sentence imposed on the Applicant was entirely proper. The Judge had taken into account everything that was put before him in mitigation. He took a starting point of 12 years' imprisonment and allowed two years' discount for the late plea which was justified in the circumstances of this case. He also gave four years for another matter making a total discount of six years and that is 50% of the total sentence. On any view, we are satisfied that this is a proper discount. Accordingly, we refused the application for leave to appeal against sentence out of time.

7. The application is, in our view, entirely devoid of any merit and a waste of court's time and public money. For these reasons, we would order a loss of time of four months, that means a period of four months that the applicant has spent in custody would not be counted as part of his sentence.