THE QUEEN v. WONG WING TAK

IN THE COURT OF APPEAL

1995, No. 518
(Criminal)

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J U D G M E N T

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

1. The applicant seeks leave to appeal against his convictions for robbery, false imprisonment and theft.

2. According to the Crown case these offences were committed by the applicant with another man Mr Chan Kim Hung. Mr Chan was arrested in respect of the offences. He was granted bail and then absconded.

3. The prosecution say that Mr Chan met the victim Ms To at a nightclub in Wanchai on the evening of 9 September 1994. He paid a fee to the nightclub for them to permit Ms To to leave the establishment with him. They had a meal in a restaurant and then proceeded to the Richmond Hotel in Happy Valley. The purpose for going there was for them to have sexual intercourse.

4. Mr Chan registered at the hotel in the name of Yip Mong Yee using an identity card in that name.

5. Ms To gave evidence that after entering the hotel Room 1603 Mr Chan claimed to be feeling unwell and rested. He made some telephone calls.

6. After about 10 minutes a man in disguise entered the room and declared that a robbery was taking place. Ms To was tied up and gagged. The man who had entered the room took her Hang Seng Bank ATM card and asked her what was the personal identification number. She gave it to him. He then left with the card. Later he returned with the card and $400. When he returned he had removed his disguise.

7. The man then took her Citibank credit card and asked her for the PIN of this. She said that she could not remember it.

8. A discussion then took place between the two men and it was proposed that the man who had entered the room would go to Macau with a female and that they would use the card there. The man left after that.

9. According to facts which were agreed the applicant and his lady friend did go to Macau in the early hours of the morning of 10 September and returned to Hong Kong shortly thereafter. Also it was agreed that Ms To's said credit card was used to make a number of purchases in Macau during the period when the applicant was there.

10. The other main evidence against the applicant were the statements he made to the police which contained detailed admissions.

11. Amongst the admissions made was a statement that he had subsequently met Mr Chan who had given him a Rolex watch which belonged to Ms To together with Mr Yip's ID card and it had been suggested that he should pawn the watch using Yip's identity card. He had done this.

12. The watch which had been recovered from a pawn broker had been pawned with Yip's identity card.

13. When the police searched the cubicle occupied by the applicant and his girlfriend Yip's identity card was found amongst his effects. There was no question of the card having been used by Yip as at the time in question he was serving a term of imprisonment. He had earlier reported the loss of his identity card.

14. The other evidence against the applicant was Ms To's evidence identifying the man who had entered the room as being the same man as the man appearing on the video recording taken at the reception area of the Richmond Hotel at the time in question.

15. As can be seen from this short summary of the principle evidence the case against the applicant was overwhelmingly strong if the prosecution witnesses were to be believed.

16. There is one ground of appeal in the perfected grounds of appeal. It reads as follows:

"The learned Judge erred in that when he addressed the Jury as to the failure of the Applicant to give evidence he directed them to deal with them in a special category in that he told them that the Applicant was an Auxiliary Police Officer."

17. The passage in Deputy Judge Longley's summing-up complained of is in this form.

" Now members of the jury, the defendant on whose behalf those allegations were put is an auxiliary policeman. He had the right to give evidence and he had the right not to give evidence. He chose not to give evidence. That may assist you, members of the jury, in deciding whether there is any truth whatsoever in any of the allegations that were put to these officers on his behalf.

The fact that he is a former police officer himself is a matter you may think is relevant in considering where the truth lies in so far as these statements are concerned. Do you think, members of the jury, that in the circumstances the police might be very careful to do everything according to the book ... and that is what DPC 23296 told you ... that he did everything according to the book because the defendant was a former police officer?"

18. The complaint which is made by counsel for the applicant cannot be sustained.

19. The judge did not suggest that as the applicant had previously been an Auxiliary Police Officer he should be treated in any way differently to any other defendant.

20. What he did deal with was the evidence given by DPC 23296 to the effect that because the applicant had been an Auxiliary Police Officer he was well aware of the procedures which had to be adopted when statements were taken from suspects and that this was the reason for the police being particularly careful to adhere to all necessary requirements.

21. There is no merit in this ground of appeal. The conviction is in no way unsafe or unsatisfactory and the application is dismissed.