HKSAR v. NGAN WAI YEUNG

CACC 355/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 355 OF 2003

(On Appeal From District Court Criminal Case No. 376 of 2003)

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J U D G M E N T

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Hon Cheung JA (giving judgment of the court) :

Leave to appeal

1. The applicant was convicted after trial by Deputy District Judge C P Pang of one charge of robbery and was sentenced to four years' imprisonment. He now applies for leave to appeal against conviction and sentence.

Facts

2. The facts are straightforward. The victim of the robbery was a middle-aged woman. She went to visit her daughter who was living on the rooftop of a building in Lockhart Road, Causeway Bay. When she arrived on the rooftop, she was confronted by the applicant. The applicant grabbed her neck and pressed her against the wall. The victim lost balance and fell to the ground. The applicant then punched her face and snatched her handbag. The force of the snatching broke the strap of the handbag. The applicant then fled downstairs with the handbag. The victim gave chase and yelled for help. The applicant was stopped by a civic-minded citizen on the ground floor who had heard the cry of the victim. The police also arrived and found the victim's handbag inside the jacket of the applicant.

3. The applicant gave evidence. He admitted that he had snatched the handbag of the victim when she was not noticing him but he denied that he had used force on her. He said that when he was going downstairs he heard a bang sound and he suspected that the victim had fallen down.

4. There was not much controversy about how he was subdued and later arrested by the police on the ground floor. In respect of the charge, the applicant had pleaded guilty to theft which was not accepted by the prosecution.

Finding of the judge

5. The judge accepted the evidence of the victim and convicted the applicant. He held the victim to be a straightforward witness whose evidence was clear and coherent. Her case on the assault by the applicant was supported by the evidence of the police officer who came to the scene. He saw the victim's face was swollen. The evidence of a medical doctor who treated the victim afterwards found that she had suffered abrasion over the neck and elbow.

6. The judge found the applicant's evidence incoherent and contrary to logic.

Grounds of appeal

7. The applicant challenged the finding of fact by the judge. He had advanced many arguments in his written submissions. They touched on peripheral matters and clearly do not constitute substantial grounds of appeal.

8. The judge was clearly the best person to assess the credibility of the witnesses. After all he had the advantage of seeing and hearing them when they gave evidence. Unless the finding is glaringly wrong, the Court of Appeal will not disturb a finding of fact by the judge.

9. The applicant submitted that the victim's claim that she was hit on the face was contradicted by the medical evidence. It is true that according to the evidence of the doctor there was no evidence of external wound on the face. The doctor said that the victim had made a complaint that 'she was hit over the neck, right elbow and left thigh'.

10. The victim frankly admitted that she did not tell the doctor that she was hit on the face, but she maintained in her evidence that she was hit by the applicant.

11. The absence of medical evidence on one aspect of her injury does not mean that her evidence was not true or that the judge's finding was flawed. The judge after seeing and hearing the victim was clearly in the best position to assess her evidence on the attack. We do not regard this matter to be of significance.

12. Whatever the position may be in regard to the victim's face, the evidence of the doctor clearly showed that the injury to her neck could not be caused by a fall to the ground but was consistent with it being struck, or being pressed or pressured. If any supporting evidence for the victim's oral testimony is needed, then clearly this is the strongest indication that the applicant had indeed used force on the victim.

13. The applicant claimed that the police officer who said he saw the victim's face was swollen was not reliable. The officer did not keep any record about the victim's complaint of being hit on the face by the applicant, and yet he was able to remember such evidence in court. Again the judge had seen and heard the evidence of this officer and clearly he was entitled to accept his evidence as being true.

14. The applicant claimed that the police officers had colluded in their evidence. They discussed with each other when they made entries in their records. This is clearly a peripheral matter. The finding by the judge was based on the testimony of the victim.

15. The applicant really had failed to advance anything of substance which affected the soundness of the finding by the judge. The application for leave to appeal against conviction is dismissed.

Sentence

16. The judge adopted a starting point of four years and three months and reduced it to four years to give recognition of the applicant's plea of guilt to theft at the beginning of the trial. This is a case where physical force was actually used on the victim. With the applicant's appalling criminal record (he had fourteen previous convictions, five of which were for robbery) four years' imprisonment was clearly appropriate. This is consistent with the sentencing guidelines on robbery. The application on sentence is likewise dismissed.

17. This is a case totally without merits. Leave to appeal was previously refused by a single judge of this Court. We will disallow two months of the time that the applicant spent in custody to be counted as part of his sentence.

18. The applicant intimated during this hearing, after the start of delivery of this judgment, that he was not appealing against conviction. That suggestion came not only after delivery of judgment had commenced, but after we had told the applicant that we were to dismiss his applications and were minded to order a loss of time. It is clear that all along he has been challenging the conviction for robbery and his change of approach was no doubt prompted by our intimation. In any event, this applicant has an appalling record for robbery, assault and theft and the order for loss of time would have been made in any event.