R. v. TSOI LAM CHUN

IN THE COURT OF APPEAL

1995, No. 160

(Criminal)

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J U D G M E N T

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Ching JA (delivering the judgment of the Court):

1. The applicant in this case seeks leave to appeal from conviction. He was convicted for the offence of robbery and also for the offence of wounding committed in the course of that robbery. The 3rd conviction was for remaining in Hong Kong without the authority of the Director of Immigration. He pleaded guilty to the 3rd charge and was found guilty on the other two charges at the trial in which he gave evidence before a District Court judge.

2. The case against him was that on 31st January, 1994, the applicant had crossed that part of Shun On Street which is in China to that part which is within Hong Kong. He went to the shop premises of a Mr Chan Man Foon with whom he had previously done business. He owed Mr Chan $480 from a previous transaction. On this occasion, he purchased one hundred watches from Mr Chan for the sum of $19,650. He gave Mr Chan a five hundred dollar note in payment of the previous debt of $480 and was therefore entitled to $20 change. For the one hundred watches, he paid Mr Chan by way of twenty notes of one thousand dollars each. He was therefore entitled to a total amount of change in the sum of $370. This Mr Chan gave him. Mr Chan helped him to tape the watches onto his legs under his trousers and in this way he intended to smuggle them into China. He stayed in Mr Chan's shop until Mr Chan's wife had left and he then attacked Mr Chan, retrieved the $20,000 and fled but was caught.

3. The applicant says that he had wanted to buy two hundred watches for $40,000 but Mr Chan did not have enough stock. He had ordered the watches beforehand and made a comment on Mr Chan's business credibility or lack of it. This according to him so enraged Mr Chan that Mr Chan attacked him. Notwithstanding that he received no injuries from this alleged attack, he himself picked up a folding stool and hit Mr Chan with it.

4. The judge below correctly proceeded on the basis that what was in issue was the credibility of the witnesses. There was in fact abundant evidence upon which to convict the applicant on the first two charges. Mr Chan gave evidence in accordance with the prosecution's case already set out. He said that after he had been knocked down, he felt the applicant searching and taking from his pocket the $20,000 that the applicant had previously given him. When the applicant was apprehended, he had on him an amount of RMB and exactly HK$20,370 which is the amount of $20,000 and the $370 change. The applicant ran away. As the judge remarked it would be difficult to imagine how two hundred watches could have been taped to his legs when the weight and bulk of the one hundred watches taped to his legs is taken into account.

5. In so far as the conviction on the 3rd charge is concerned, the applicant pleaded guilty and has put forward nothing to allow him to change that plea. There is, therefore, absolutely no merit in this appeal. The applicant was rightly convicted of a planned robbery accompanied by a serious assault and the application must be dismissed.