CHAN KWOK CHEUNG v. R.

IN THE COURT OF APPEAL

1994, No. 142
(Criminal)

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JUDGMENT OF THE COURT

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Macdougall, V.-P.:

1. The applicant stood trial before Deputy Judge Candy in the District Court and was convicted on one charge of robbery. He now applies for leave to appeal against his conviction, having abandoned his application for leave to appeal against sentence. There was another defendant, a man named Tam Kwok-hung. He had also applied for leave to appeal against his conviction and sentence but he abandoned those applications shortly before this hearing. Another man, one Ng Yiu-cheong, who was also charged with the same offence as the applicant and Tam, had his application for leave to appeal against conviction and sentence refused by this court on 9 November.

2. It was admitted at the trial that at about 4.30pm on 26 April 1992, two men entered domestic premises occupied by the victim, a 68 year old man, bound gagged and blindfolded him, and stole cash and valuables belonging to his nephew. The robbers plainly knew what they were after for they went straight to where the money and valuables were kept, and no ransacking of the premises occurred. Suspicion fell on Ng, a relative of the victim, who had made an inconsequential telephone call to the premises shortly prior to the robbery and enquired whether the victim's nephew, who answered the call, intended to go out. He was told by the nephew that he would shortly be leaving the premises.

3. When he was later confronted, Ng said that he had planned the crime with two other persons. He then gave information to the police which resulted in the arrest of the applicant and Tam.

4. The case for the prosecution against the applicant rested principally on a cautioned statement which the applicant made to the police after his arrest. At the conclusion of a voir dire held to determine the admissibility of the statement the deputy judge ruled that it had been voluntarily made and admitted it into evidence. The applicant declined to give evidence on the general issue and was duly convicted.

5. The statement made by the applicant contained clear admissions that he and Tam had entered the premises by picking a lock while Ng remained outside, and that he and Tam had bound, gagged and blindfolded the old man after which they stole the cash and valuables and made off.

6. The applicant now complains that the deputy judge had demonstrated bias against him by assisting the prosecution witnesses in giving their testimony and in relying on evidence that had given in an earlier aborted trial. The applicant has been unable to point to anything which lends support to either contention. He also complains that since none of the items that had been taken during the course of robbery was found on his person or at his premises, and since no fingerprint evidence linked him to the robbery, there was therefore insufficient evidence to justify his conviction. It frequently happens that there is an absence of fingerprints and stolen items linking a defendant with the crime with which he is charged. That, however, is not fatal to a conviction. There was, in this case, as we have already indicated, a clear confession of guilt by the applicant. In the circumstances we are satisfied that the conviction must stand. The application for leave to appeal against conviction is therefore refused.