R. v. LE HUNG VUONG

IN THE COURT OF APPEAL

1994, No.654
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. In this matter the applicant faced one charge of robbery in which it was particularized that he and another on 28th day of April 1994 at Wang Kong Development No.2 Barge at Tai Kok Tsui Pier, Mongkok, robbed Mr. TAM Ying-kay of $14 in cash. He pleaded not guilty to that charge and was, after trial before Judge Whaley in the District Court, found guilty and sentenced to imprisonment for 5 years and six months. He now seeks leave to appeal against both conviction and sentence.

2. It was the prosecution case that the applicant and the other defendant robbed a barge worker of $14 after tying him up and searching the barge. At the time of so doing one of the men was armed with a chopper and the other with a knife both of which, it seems, had been taken from the kitchen of the barge. Other barge workers became suspicious upon hearing noise and ambushed the two robbers as they were leaving the barge. They managed to get away but one was later apprehended by the police and the other escaped. The applicant was later apprehended, identified by the victim and admitted the offence under caution. At trial he denied having committed the offence and said that his cautioned statement had been obtained by the use of force and was untrue. The trial judge rejected his evidence both as to the confessional statement and on the general issue and stated that he found him a poor and unconvincing witness.

3. Today he complains that the conviction was wrong because the statement was forced from him and because the judge refused fairly to consider and to accept his evidence. There is nothing in these complaints. A reading of the Reasons for Verdict shows that the judge gave consideration to all of the evidence before him including that of the applicant and having done so was not prepared to give credence to what he said.The application for leave to appeal against conviction is refused.

4. As to sentence he suggests that five years six months was too severe. The trial judge followed the guidelines in MO Kwong-sang that have been laid down since 1981. The sentence was, given the guidelines, not a severe one. The judge cannot be faulted in this regard and that application must also be refused.