R. v. CHONG WAH FUNG

IN THE COURT OF APPEAL

1996, No. 86
(Criminal)

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J U D G M E N T

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Litton, V.-P. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction. The applicant was convicted after trial before Saied J and a jury in the High Court on 18 January 1996 on one count of handling stolen goods and was sentenced to 18 months' imprisonment.

2. The applicant originally faced two counts of robbery. He was acquitted on both, but on count 2 the jury returned an alternative verdict of guilt for handling stolen property.

3. Count 2 alleged that on 29 March 1995 at Hut No. 11-E1 Siu Hang San Tsuen, Sheung Shui the applicant together with others robbed a person called Li Leung of cash and other properties. It is not in dispute that Li Leung was robbed at his home in the evening of 29 March 1995 when four men, speaking a dialect he could not understand, entered his hut, tied him up, gagged him, threatened him with a knife and robbed him of the cash and goods as particularised in count 2, including a SEIKO watch and $1,500 of cash.

4. The police was soon alerted after the second robbery and found five men hiding in a bamboo grove. The applicant was one of those five men. Upon his arrest the police found on the applicant a SEIKO watch exhibit P19 which Li Leung claimed was his, stolen earlier that night. The applicant also had on him a $500 note. Other items of stolen properties were found on the other men arrested with the applicant, but no items of property taken from the victim in count 1 were found on the applicant. As to the $500 note Li Leung said that he had two $500 notes which had been stolen during the robbery.

5. The applicant elected to remain silent at his trial.

6. The jury, as mentioned earlier, acquitted the applicant of robbery on the two counts. The question before us is whether, having regard to the summing-up, the conviction for handling stolen goods returned on count 2 is safe and satisfactory.

7. The passages in the summing-up relevant to this application for leave to appeal are as follows - p.11 N-T:

" According to Station Sergeant Ip - PW3 - who was the officer-in-charge of the Task Force Sub-Unit of Sham Shui Police Station, it was discovered that those five - who included this defendant - did not have Hong Kong Identity Cards and were illegal immigrants. The station sergeant said that he heard those men talk in Mandarin - which he understands a little - but did not understand what they had said."

8. Then a further passage at p.21 D-O as follows:

" The fact that this defendant, like the other four, is an illegal immigrant is not, in fairness, to be taken into consideration in drawing any adverse inference against him to the effect, for example, that it is impossible for any illegal immigrant to possess such a ($500) note. The time factor that was mentioned refers to the lapse of about an hour and a half between the second robbery and the arrest of the defendant, which it is argued is so short as to lead to the inference that both that note and the watch were stolen properties of PW2.

That is a matter for you to consider and it may perhaps assist you to take into account, if you are so inclined to do, that those five men, including the defendant, were found together in the bamboo grove near PW2's home."

9. Later on the judge said at p.22 D-H:

" Do not forget, also, the station sergeant's evidence that the area where there were -- these five people were discovered is close to the border with Shenzen and is where illegal immigrants are usually found. It was argued by the defence that it may be that the other four were already in the grove and the defendant joined them later."

And finally the judge told the jury at p.22 N-Q:

"You will also consider whether the time lapse of one-and-a-half hours was such that property could have changed hands. That is, passing to a person who was not a member of the gang"

10. One point of appeal has been taken by counsel for the applicant: that the judge should have excluded from the jury's consideration the sergeant's opinion evidence that the applicant was an illegal immigrant. Counsel's submission is that the prejudicial effect of this evidence far outweighed its probative value. The point for us to consider is this: Was this expression of opinion by the sergeant prejudicial in a real sense? Crown Counsel says it is not, because it might explain why the applicant, not one of the robbers, came to be in the bamboo grove with the other four who were also suspected illegal immigrants. There is merit in this submission. It is borne out by the passage in the summing-up earlier quoted where the judge said "It was argued by the defence that it may be that the other four were already in the grove and the defendant joined them later" and the further passage where the judge added "You will also consider whether the time lapse of one-and-a-half hours was such that property could have changed hands. That is, passing to a person who was not a member of the gang".

11. It is clear from reading the summing-up as a whole that the defence in the court below was not in any way objecting to that evidence but was in fact relying upon it to rebut the allegation of robbery. That being so, we conclude that the point is without merit and this application for leave to appeal must therefore be dismissed.