HKSAR v. LAU PAK YING

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1997, No. 673
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. The applicant was convicted of two offences, one of indecent assault and one of robbery which were both part of the same incident, by Deputy Judge Duggan in the District Court on 7th October 1997. He was sentenced on 28th October 1997 to 2 months imprisonment for the indecent assault and 5 years imprisonment for the robbery. Those sentences were to be served concurrently. He applies for leave to appeal against his conviction.

The facts

2. On 12th June 1997, at about 7:45 a.m., the victim who was a married woman of 38 was returning home to her flat after taking her son to school. She reached the corridor near to her flat in the building where she and her family lived in Sham Shui Po. She was carrying her handbag and wearing a silver necklace with a pendant. In the corridor - there was apparently a staircase at each end of the corridor - the applicant appeared. He had come up the other staircase. When he came near the lady, he grabbed her neck and pushed her against the wall, pressing his body against her. He kissed her on the cheek three or four times. He held her neck, pulled at her clothes and pushed her to the floor. She shouted for help as she was being indecently assaulted.

3. The applicant grabbed her handbag and produced a knife. She managed to grab the knife receiving a slight cut. The knife ended up on the ground. The applicant got away with her handbag and in the scuffle her necklace and pendant were removed. He tried to escape.

4. The victim's father was in the flat. He heard the commotion and his daughter shouting. He came out only partly dressed himself. He succeeded in subduing the applicant and recovering the handbag. The victim took hold of the applicant's vest in the struggle and managed to pull it off. The knife was broken. The necklace and the pendant were found somewhere near on the floor as was the broken knife and part of the handbag handle. The police were called. When they arrived, the applicant was still being held by the father.

At trial

5. At trial the applicant was represented by counsel. Evidence was given against him by the victim, the victim's father and police officers. The applicant chose not to give evidence himself. The judge considered in particular the evidence of the victim and the victim's father. This was supported by the physical evidence found by officers at the scene which was the knife, the damaged handbag and the necklace.

The judge considered with care the credibility of those witnesses including the discrepancies which had been pointed out by counsel between their evidence in court and in statements which had been given to the police. However, having considered all those matters, he said this:

"Neither in the case of PW1 nor PW2 did I find any discrepancies or contradictions of such a nature that cause me to doubt their truthfulness or reliability."

In consequence he found that the applicant had committed the offences which had been proved to the requisite standard.

The application

6. The applicant seeks leave to appeal on a number of grounds which he has set out at considerable length.

7. In the first he makes a complaint against his counsel. His version of the events and the explanation for his presence in the building (which was not where he lived) was that he had gone there to inject himself with dangerous drugs. He complains that on the first occasion when he met his counsel, counsel asked him not to admit that he had been injecting himself at the scene because in those circumstances, he could be convicted of possession of dangerous drugs even if he successfully defended the allegation of robbery.

8. Because he alleged that he had been advised not to give evidence, the case was adjourned sometime ago so that his former counsel could attend this hearing.

9. When asked today about this matter, he said that he was advised about giving evidence not by his counsel on the first occasion, but only after the 5th witness had given evidence in the court below. The applicant considered that the evidence was fabricated by the witnesses and could not stand. Therefore he decided himself not to give evidence. He made it clear to this Court that it was his decision at that time based upon, as he saw it, the weight of the evidence against him. So the allegation he first made falls to the ground. He made some vague complaints that his lawyer did not do his best, but there is no basis upon which leave to appeal could be given on this ground.

10. Turning to the other matters, he has provided written submissions to the court. He deals in considerable detail with "doubts" about the case. He makes points on the credibility of the witnesses; about the way in which the exhibits were handled; he complains that counsel did not investigate a discrepancy in the value of some of the property which was stolen, and some discrepancies in the description or record of the clothing that he was wearing.

11. Finally, he sets out his problems concerning a person with whom he was cohabiting round about the time of the offences and seeks to relate this to the unlikelihood of him committing the offences of which he was convicted

Conclusion

12. In the result these were matters which the judge considered with care where relevant. There is no basis upon which this Court could give this applicant leave to appeal on any of the matters which he has put forward. The application is refused.