THE QUEEN v. TANG YUK KAN

IN THE COURT OF APPEAL

1986, No. 541
(Criminal)

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J U D G M E N T

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Silke, J.A.:

1. Tang Yuk Kan was convicted after trial of the offence of robbery. He was sentenced to 5½ years’ imprisonment. He now seeks leave to appeal against his conviction.

2. On the 9th June 1986 Wong Shun Tung, who was aged 57 and who slept on a rear staircase landing at 10, Kwun Yum Street, Kowloon, was woken up at about half past four in the morning by being hit on the head with a bottle. The person who attacked him grabbed him by the hair and searched his pockets. The attacker took his wallet which contained $350, his Identity Card and some documents. While taking the wallet, the attacker was kneeling on top of Mr. Wong. The man started to run away but Mr. Wong got hold of his clothes. He was then attacked by the man who punched his face and his body and who kept calling out as he did so "Let me go, let me go or else you will die.” The attacker eventually struggled free and ran off.

3. It was Mr. Wong’s evidence that he knew the attacker and he had known him prior to this incident. He identified the Applicant as that person. The Applicant was also a staircase landing sleeper.

4. An element of vagueness entered into his evidence in relation to the identification in the course of the trial when the possibility of his “suspecting” rather than positively identifying the Applicant emerged.

5. Upon arrest on the 12th June, the Applicant was taken to the Police Station at Ho Man Tin. There he Dade a cautioned statement. That statement was the subject of a voir dire in the course of the trial and, having heard the evidence including that of the Applicant, the trial judge admitted it as free and voluntary. In it, the Applicant was recorded as saying, having been cautioned in relation to this robbery;:

“I understand. I did take the wallet because WONG Shun-tung owed money to me. There were eleven dollars in the wallet. The wallet had already been thrown away.”

6. In the course of his evidence on the general issue, the Applicant said that he was on good terms with Mr. Wong whom he had known for some time and that each borrowed money from the other on occasions. He denied robbing Mr. Wong and said as far as he could recall at the time of the robbery, he was asleep at his, home in Hunghom.

7. In coming to the conclusion of guilt, the trial judge said that he thought it quite unsafe to rely on the evidence of Mr. Wong as to the identification. He found the robbery itself to be proved and was satisfied that the Applicant's cautioned statement was a frank admission by him that he was the person who committed that robbery.

8. Before us, the Applicant has advanced his homemade grounds of appeal and has supplemented them by saying that on this occasion he has appealed his conviction though he has never appealed from any of the multitude of previous convictions he has because he is innocent. Mr. Wong was his friend and he does not understand how the trial judge could believe Mr. Wong in placing the Applicant in this predicament.

9. The trial judge considered all of the evidence that was before him, he felt that he could not properly rely to the point of conviction upon the identification evidence of Mr. Wong but he was satisfied that the cautioned statement was sufficient to implicate the accused in this offence. We see no reason to interfere with the conclusions of the trial judge. He was fully entitled to come to them on the evidence as it was before him. In these circumstances, the application for leave to appeal against conviction is refused.