THE QUEEN v. LAU KWONG WAN

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J.A.:

1. The Applicant LAU Kwong-wan was convicted after trial, before de Basto, J. and a jury, of the offence of robbery. He had appeared for trial on a two-count indictment. The first of those counts was the robbery of the Matauwei Estate Branch of the Belgian Bank on the 16th of January 1985 and the second related to his being found of possession of a firearm without a licence. The second count arose from his arrest on the 2nd of February 1985 when he was searched and a converted starting pistol was found upon him. He pleaded guilty to that count.

2. The facts of the robbery were, very shortly, that at about 11:30 on the morning of the 16th of January two men went into the Belgian Bank Branch. One of those men had a plastic bag covering his features the other was unmasked. And it was the case for the Crown that the person unmasked was the Applicant. Money was taken from the Bank and a shot was fired by the robber in the plastic bag who held a gun.

3. The main evidence at trial consisted of, first, the evidence of a Mr. Kiang (or Keung) whose statement was read into the record and who spoke as to the robbery and gave a description of the robbers as to their approximate ages, heights and the colour of their clothes. There was further the evidence of Miss LEUNG Man-yee and she had seen the person without the mask at a distance of about ten feet away when he was getting money from Mr. Keung. She, at a later stage, identified the Applicant on an identification parade as being that robber.

4. The second main piece of evidence in relation to the Applicant's guilt was a cautioned statement taken from him, admitted by the Judge and produced before the jury.

5. The Applicant himself gave evidence denying any participation in the robbery and suggesting an alibi saying that he was in a wooden hut in the Tsuen Wan area during the entire day of the robbery. He and a friend "LAM FUNG" had been stopped the night before at an identity card check. The Applicant, knowing he had a false identity card, had run away because he was an unauthorised entrant and said he was waiting in the hut for the return of "LAM FUNG" to see what had happened. He gave evidence before the jury as to the ill-treatment he said he had received from the police at the time of the taking of his cautioned statement and of the fact that that statement had been dictated to him.

6. Before us the Applicant has attacked the evidence of Miss Leung on the basis that she had a bad memory because she could not remember the colour of the clothes worn by the robbers and because she made a mistake as to the actual date of the identity parade having stated in evidence it was on the 5th of February whereas there was clear evidence it took place on the 6th.

7. He further made complaint that no ballistic evidence was called to dissociate the gun found upon him on his arrest from the robbery on the 16th of January. But the fact that the Crown did not call such evidence is hardly surprising in so far as he had pleaded guilty to the count. Further the Trial Judge had directed very clearly the jury that they were not to presume that, because he was found with the gun, he had committed the robbery. I note, within the cautioned statement which the jury had for their consideration, a passage which tends to suggest that the gun that was found was in fact the gun which was used at the robbery.

8. The jury were fully and properly directed as to the issue of identification the Judge gave all the warnings that are required in circumstances such as this. They were also directed as to the allegations against the police on the taking of the cautioned statement and they were properly directed as to the manner in which they should approach the question of the weight that they might consider giving to that statement.

9. If that statement were accepted by the jury as being true, it contained full admissions to the robbery and to the Applicant's part in it. The fact of the robbery itself was not seriously contested and the sole issue which the jury had to consider was the involvement of the Applicant in it.

10. They clearly did not believe the evidence of the Applicant and, giving proper consideration to the Crown case, they were entitled to come to the verdict which they did. We do not consider this conviction to be in any way unsafe or unsatisfactory. The application for leave to appeal against conviction is refused.