R. v. CHAN PING NAM and Another

IN THE COURT OF APPEAL

1994, No. 268
(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. These are applications for leave to appeal against conviction by Chan Ping-nam, who was the 1st defendant at trial and Ho Kwok-leung, who was the 2nd defendant at trial. The 1st defendant, also seeks leave to appeal against a sentence of 8 years' imprisonment.

2. There was no dispute whatever that on 7th April 1993, the occupants of the Parafortune Fur Company on the 12th Floor, Tower 1, Harbour Centre, Hunghom, Kowloon were robbed of some cash and 13 boxes of very valuable mink fur. There was evidence that the 1st defendant was the driver of a vehicle, which brought these robbers to the shop and that he was the owner of the van. There was evidence that he took police officers to person who had manufactured false number plates for the van. There was also evidence by police officers that when they arrived on the scene as a result of a phone call which had been made, he was present, that he was pursued and apprehended and that he made a verbal statement. He also made a cautioned written statement later. The evidence against the 1st accused was very strong indeed. Having considered the summing-up of the trial judge, Deputy Judge Burrell, we are quite satisfied that the conviction of the 1st applicant was perfectly safe and satisfactory.

3. So far as the 2nd applicant is concerned, the trial judge very fairly told the jury that although there was evidence that a palm print was found on the truck which brought the robbers to the scene and that the applicant was present in the general area was not sufficient evidence against him in the absence of a verbal admission to justify his conviction.

4. Mr. Haldane, who appeared for the 2nd applicant both at the trial and here, filed grounds of appeal. However some of those grounds of appeal are now no longer argued and Mr. Haldane confines his contention that there were insufficient directions given to the jury as to the manner in which they should regard the police evidence and the allegation made at the trial that the police constables had not only collaborated together in the preparation of the record which they had made in their notebooks subsequently but which was allowed although it was denied but that they had gone further and there was collusion between them in the preparation of those notebook records. Reliance is placed on R. v. Wong Wai-ming, Magistracy Appeal No. 1361 of 1989 where Wong J said that if there was pre-trial collusion between witnesses, their evidence would be treated with contempt. Mr. Haldane has traversed the various directions that were given and argues that in the light of the evidence of the constables they were not sufficient. Having considered those directions however we are satisfied that, while perhaps something further could have been said, the directions given were adequate and that the jury must have considered the evidence given by the police constables and must have been satisfied that the verbal statements made by the 2nd accused were in fact made and that they were voluntary. We do not have any doubts that the conviction of the 2nd applicant was safe and satisfactory. His application for leave to appeal against conviction is also refused.

5. The 1st applicant also appears against his sentence of 8 years' imprisonment which was passed after trial. The circumstances of this robbery was such that the sentence was not excessive. The application of the 1st applicant to appeal against sentence is also refused.