THE QUEEN v. NG TAI MING

IN THE SUPREME COURT OF HONG KONG

COURT OF APPEAL

CRIMINAL APPEAL NO. 628 OF 1989

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BETWEEN

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JUDGMENT

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1. This is the judgment of the court.

2. On the 13th November 1989 the applicant was convicted of robbery after trial by HH. Judge Baily. He was on the 4th December sentenced to 4 years imprisonment. A co-accused was absent at that trial. The applicant now seeks leave to appeal against that conviction.

3. Between 3 a.m. and 4 a.m. on 1st June 1989, a Mr. Ng Shu-kan was robbed. Two men were present at the robbery. An issue is whether both those men were participants in the robbery. The robbery was, in fact, observed by a party of police who approached the scene. The two persons made off. The police caught one of them and recovered Mr. Ng's property. Also in issue is whether or not a knife was used and another issue is which person spoke and what was said. Was it that Mr. Ng, the unfortunate victim, was simply asked for a loan?  We simply observe that, in the circumstances of the time and the fact that certain valuables were handed over by the victim, that seemed improbable.

4. Mr. Ng when giving his evidence in chief said that one of the robbers held the knife to his abdomen. After cross-examination he conceded that he was not sure if a knife was used. One of the police officers in the police party, who gave evidence at the trial, said that he did see a knife.

5. The applicant was arrested later the same day and, at some time after 2 O'clock in the afternoon, made a statement under caution. That statement was not challenged and was admitted in evidence at the trial. In his statement the applicant said, "we asked him for a loan.  He thought we were going to rob. He gave us all his property". The police, however, questioned the applicant further and the applicant proceeded to tell the police that, after a night out on the town, he and his co-accused returned to Aberdeen at 2 O'clock in the morning. He then continued, in answer to questions put to him by the police, "Ng Kam-yau said to me, 'let's go and find some money'. I did not say yes or no. He then brought me to sit in a truck at the Jumbo Pier." The applicant was asked if he knew what Ng Kam-yau meant by saying "let's go and find some money."   His answer was "yes, I do it meant robbery." The applicant continued to say, "At that time I was not sober. I just followed him wherever he went. We sat in the truck for about 10 minutes. A person walked past, we approached him and Ng Kam-yau asked him for a loan. That person thought we were going to rob him. He surrendered all his property. I didn't take any of them." And in answer to a further question the applicant said, "I was standing next to that person, 2 ft. away. I cannot recall what he (Ng Kam-yau) said. However, I didn't utter a word. "

6. There are 5 grounds in the Notice of Appeal. The 4th and 5th grounds are that there was no sufficient evidence and that the conviction is unsafe or unsatisfactory. Those grounds are particularised in grounds 1, 2 & 3. The 1st ground is that the trial judge erred in failing to find what was the role played by the applicant in the robbery; in particular the trial judge failed to make a finding a fact as to the identity of the person who held the knife, who asked for money and who took away the property from P.W.1. that is to say the victim.

7. The 2nd ground is that the judge erred in relying on the applicant's cautioned statement in as far as the applicant said he and his co-accused asked the victim for a loan whereas the judge failed to consider or consider adequately the clearer part of the applicant's cautioned statement in which he said it was the co-accused who asked for a loan and the applicant did not utter a word. The 3rd ground is that the judge failed to state in his Reasons for Verdict on what evidence he did find the applicant guilty.

8. Dealing first with the 3rd ground after canvassing in brief the evidence of the victim Mr. Ng and the evidence of one of the policemen who came on the scene, and after outlining the cautioned statement tine judge said, "The question of the knife is not mentioned in the statement. I accept there was a knife. I have no hesitation in finding the defendant guilty of robbery".

9. With respect to the learned judge that is a little brief. The judge should have made clear what evidence of the witnesses he did accept and what weight he attached to the cautioned statement. That was particularly important in view of the somewhat confused evidence of Mr. Ng, the victim whose evidence we have looked at in some detail this morning. Had the judge done so, he would in all probability have scotched the complaints which are made in grounds 1 & 2.

10. A number of what might be described as ingenious arguments have been advanced on the behalf of the applicant, principally that the judge did not direct his mind as to whether this was a case of mere presence on the part of the applicant or whether it involved something more. However, it is difficult to see what other conclusion the judge could have come to in the light or the applicant's statement. Even at face value the applicant knew what his co-accused had in mind, went willingly with him and approached the victim with the co-accused who sought what, according to the applicant, was euphemistically described as a loan. The applicant was then alert enough to make good his escape when the police approached.

11. In the circumstances we think there is no merit in this application and the application must be dismissed. And because we take the view there is no merit 4 months of the time spent in custody since the filing of the Notice of Appeal will not count towards sentence.