R. v. FUNG CHI SHING and Another

IN THE COURT OF APPEAL

1996, No. 103
(Criminal)

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J U D G M E N T

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

1. On 19 January 1996 after a trial lasting 13 days, each of these applicants was convicted before Leong, J. and a jury of a joint offence of robbery. Fung was convicted unanimously and Ho by a majority. Each of the applicants was sentenced to 7 years imprisonment. Each now seeks leave to appeal against his conviction.

The facts

2. The Crown case was that on 27 June 1995 Fung armed with a knife and Ho with him went to the Circle-K Convenience Store in Wo Hing House, Hing Wah Estate and robbed two female assistants there of nearly $400. Fung put the knife against the neck of one of these assistants and cut her, causing an injury which led to her being detained in hospital for three days. The robbery was videoed on a security camera. Immediately afterwards the applicants ran away and the assistants cried robbery. That cry was heard by a group of police officers patrolling on the podium of the building. They saw two men rush out of the store. They lost sight of one but chased the other. The officer who eventually arrested him never lost sight of him during the chase. It was Fung and he was carrying a knife. When he was arrested, other officers came and assisted.

3. On his arrest, Fung said - according to the officers - "Give me a chance". He had on him $43 in coins wrapped in tubes.

4. At trial, he chose not to give evidence on his own behalf. But it was suggested in cross-examination that he had nothing to do with the robbery; he was simply crossing the road to go to a games centre when he was arrested. His counsel attacked the consistency of the prosecution case in ways which we will describe in a moment.

5. The officers who arrested Fung saw the other man initially, he was wearing a light coloured shirt. Ho was in a light coloured shirt when he was arrested.

6. Another party of officers heard a report of the robbery on their radio and immediately went to Wo Hing House. They started to search by going up the staircase from the lower level. At about the 12th level, they saw Ho coming down. On seeing them, he turned round and ran up to flee away. But as he went, he tripped and was caught. Asked why he ran away, he said that he was helping chase a thief. He was found to have on him $260 in crumpled notes. When asked about those notes, he said that he had obtained them in a robbery at what he described as the OK Store not the Circle-K Store. He also admitted that he had committed the robbery with another who had a knife and he had on him sun-glasses which he said he had worn during the offence. Nearby other crumpled notes were found on the ground where he had fallen. He chose to give evidence. He denied involvement in the offence. He said that he was a drug addict who had gone to the place to buy drugs and that he had drugs on him. He fled the police when he ran and he denied that he had made the admission alleged.

The application

7. Each of the applicants has put before the court lengthy notices of appeal and has each advanced arguments to support those notices. Those notices however contain matters which were advanced before the jury at trial. It is not the function of this Court to retry matters which were dealt with by the jury. For example, the applicant urged before this Court the absence of confession statements. In fact, there were confession statements originally in the case, three from Fung and two from Ho, which were ruled inadmissible by the judge after a voir dire. They relied upon absence of identification by any of the victims; upon discrepancies in the officers' evidence; upon discrepancies in the description of clothing worn by them; the absence of fingerprints; the absence of bloodstains on the knife; and upon discrepancies in the times recorded on the video and the times given by the police in their evidence. They made points relating to the caps which were being worn at the time of the robbery but not on them when arrested and about the absence of an exhibit - a bottle - which was shown on the video being taken by the robber. Those videos were seen by the jury.

8. All those matters were put before the jury by counsel. They were properly left for the consideration of the jury by the judge. The judge made it clear that the facts were entirely for the jury. He commented to the jury about the evidence, sometimes adversely to the applicants, but those comments never strayed for a moment beyond the bounds of propriety.

9. A further point is taken on behalf of Ho in a ground of appeal drafted by counsel. Counsel wished to bring to the jury's attention the fact that the judge had ruled the defendants' cautioned statements inadmissible and had thereby formed an adverse view of the officers. The judge ruled that it should not be brought to the attention of the jury. It suffices to say that the judge's ruling was correct. The judge's view of a witness during a voir dire is quite irrelevant for the consideration of the jury which has to make up its own mind upon the veracity of the witnesses whatever views the judge has formed.

10. For those reasons these two applications are dismissed.