HKSAR v. CHENG FUK WA

CACC 442/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 442 OF 2005 

(ON APPEAL FROM DCCC 559 of 2005)

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 J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1.  Shortly after mid-night on 23 of March 2005, a prostitute working at a one-woman brothel at Mezzanine floor, No 12 San Shing Avenue, Sheung Shui was robbed by a lone robber. The robber, pretending to be a customer, entered the victim’s premises and produced a chopper from his jacket. He then placed the chopper on the victim’s neck and told her to strip and surrender her money.

2.  The robber took cash $2,000 and a mobile phone from the victim’s handbag before fleeing. The victim described the robber as a 20-25 year old man, 5’8” tall, thin build with a pointed face and was wearing a black jacket, a white turtleneck woollen jumper, a pair of black trousers and a black cap.

3.  At 2140 hours on 22 March 2005, i.e. less than three hours before the robbery occurred, the applicant – Cheng Fuk Wa, a 16 year old boy, was intercepted by DPC 51400, DPC 47297 and WDPC 55818 outside a ‘Circle K’ Convenience Store in Wah Ming Estate Shopping Centre, Sheung Shui. According to the police officers, the applicant was then wearing a black cap, a black jacket, a white turtleneck shirt and dark trousers. The applicant was released after his identity was confirmed.

4.  As the applicant’s appearance matched that of the robber, he was traced and arrested on 15 April 2005 at his friend’s (Chim Pak-lam) place in Shun Ming House, Ming Wah Estate in Fanling. The victim attended an identification parade, but failed to identify the applicant.

5.  Nevertheless, the applicant was charged with robbery and appeared before Deputy Judge Casewell in the District Court.

6.  The applicant pleaded not guilty, but was convicted after trial. He was sentenced to six years’ imprisonment.

7.  The applicant seeks leave to appeal against both conviction and sentence.

Prosecution Evidence

8.  Apart from the circumstances of the arrest and the victim’s description of the robber, the prosecution case against the applicant mainly rested on his admission made after his arrest.

9.  According to DPC 51400, the applicant admitted to have committed the robbery at the time of his arrest and his admission was recorded in his notebook, which was signed by the applicant. DPC 51400 also conducted videotaped interviews with the applicant shortly after his arrest and the applicant further admitted to have committed the robbery because he had no money.

10.  The applicant said in the interviews that he had initially intended to rob someone at Sheung Shui Wai, but failed to meet a target. He subsequently found a chopper in a subway and some gloves by the roadside. He then went to the victim’s apartment and robbed her of a mobile phone. The applicant said he did not take any money from the victim.

11.  The applicant also told the officer that he disposed of the chopper in a rubbish bin on his way to Chim Pak-lam’s place and then his own clothing in a refuse room at Shun Ming House.

12.  In subsequent interviews, the applicant described the chopper that he used in the robbery and agreed to take the police to various locations where the chopper was picked up, and where he disposed of his clothing. Subsequently, the applicant took the police to the locations where he had picked up and then disposed of the chopper, of the litterbin where he discarded the clothing that he wore at the time of the robbery. The applicant also took the police to the building where he had robbed the victim, and pointed out his escape route.

Defence Case

13.  The applicant alleged it was a police frame-up as he had behaved in an annoying manner during police enquiries of him prior to 22 March 2005. He said that the police had, on those occasions, threatened to blame him if anything serious happened in the area.

14.  The applicant admitted that the police had intercepted him on 22 March 2005. However, he said the police’s description of his clothing was inaccurate as he was in fact wearing a blue and black striped jacket and a brown and white coloured shirt. He said after the police questioning, he returned to the flat where his father and his father’s mistress lived, and remained there the whole evening.

15.  The applicant alleged that DPC 51400 had made up his notebook entry. He claimed to have been subjected to threats, violence and inducement by the police. He said the police refused to allow him to call his father and said if he admitted, he would be allowed to go. He said he was then given a document to study and that explained why he was able to describe the robbery during the videotaped interviews.

16.  The applicant denied taking the police to the various locations. He said that he was just being driven around and was then told to sign the police notebook.

17.  The applicant emphasized that the age of the robber as described by the victim did not match his and that she was unable to identify him.

The Judge’s Findings

18.  The judge rejected the applicant’s suggestion that the police had inflicted violence on him in a public place. The judge pointed out that the doctor, who examined the applicant on the day following his arrest, said that the applicant did not complain about being assaulted by the police, but instead complained about a skin rash. The judge also pointed out the absence of any injuries or mark of injuries on the applicant’s body at the time of the examination.

19.  The judge accepted the police evidence that the applicant was told that he could contact his family member. However, the applicant made it clear that he did not want any of his family members to know that he was in police custody.

20.  The judge rejected the applicant’s suggestion that he had been coached as to what to say during the interviews. The judge pointed out that the victim was very nervous and did not have a good chance to look at the face of the robber and she was also told that she should only make identification if she was certain. It was therefore not surprising that the victim was unable to identify the applicant.

21.  The judge found that the applicant had voluntarily made the confessions and he attached full weight to them. On the prosecution evidence, the judge found the charge against the applicant proved beyond a reasonable doubt. He therefore convicted the applicant as charged.

Grounds of Appeal Against Conviction

22.  In his written application, the applicant claimed that there were neither exhibits nor witnesses to prove the charge. He said he did not plead guilty and the witness said at the identification parade that he was not the robber. He also emphasizes that the police did not find any stolen property in his possession and complains about thesentence being too severe.

Discussion

23.  There could no doubt that the victim had been robbed. The judge was also entitled to conclude that the victim had been robbed of a mobile phone and cash $2,000.

24.  The only issue was whether the applicant was the robber and that depended very much on the judge’s assessment of the veracity of the confessions allegedly made by the applicant.

25.  The police stopped the applicant in the vicinity shortly before the robbery occurred and he was then wearing almost identical clothing as the robber.

26.  The applicant made admission after his arrest and was subsequently interviewed and he made further admission.

27.  The interviews in which the applicant made the confessions were video-recorded. The interviews were witnessed by other police officers. The applicant followed up the interviews by taking the police to various locations in connection with the robbery.

28.  On such evidence, the judge was perfectly entitled to accept that the applicant had made full confession to the crime and that full weight should be attached to such confession.

29.  On the prosecution evidence, convicting the applicant was inescapable. We did not find his conviction unsafe or unsatisfactory. His application for leave to appeal against conviction was dismissed.

30.  Subsequently to our decision, the applicant made further submission to us. He repeated the suggestion that there was insufficient evidence to convict him when the victim did not identity him and he was not found to have any stolen property. He said if he were the robber, he would have admitted to taking the $2,000 from the victim as well. The applicant again said the police wrongful accused him because he had misbehaved during previous police enquiries and that he was in fact innocent.

31.  The applicant’s further submission fails to persuade us to change our mind and we confirm our decision to dismiss his application for leave to appeal against conviction.

Application For Leave to Appeal Against Sentence

32.  As the judge had quite rightly pointed out, it was a serious robbery on a lone woman in private premises with the use of a chopper. The chopper was placed at the victim’s neck and she was forced to strip before property was taken from her.

33.  The victim was a vulnerable target of robbery because of her profession and should be protected.

34.  Applying the sentence guideline as laid down in Mo Kwong-sang v The Queen [1981] HKLR 610, the starting point of 7 years adopted by the judge is certainly justified.

35.  The judge reduced the sentence to 6 years’ imprisonment on account of the applicant’s clear record and young age.

36.  The applicant was born on 18 November 1988 and he just over sixteen year old at the time of the offence. However, being sixteen does not ‘qualify’ as belonging to the ‘extreme youth’ group to justify exceptional leniency.

37.  The contents of various reports indicated that the applicant came from a broken family and had not been properly taken care of when he was young. The applicant came to Hong Kong in 2001 and had difficulty in adjusting to the studying in Hong Kong. It was also the applicant’s first offence.

38.  On the other hand, what the applicant did was very serious when he placed a chopper on the victim’s neck before ordering her to strip and surrender her property. The applicant’s conduct must be deterred.

39.  The judge had already reduced the starting point by one year on account of the applicant’s young age and clear record.

40.  We are not persuaded that the 6-year sentence imposed on the applicant is manifestly excessive or wrong in principle. His application for leave to appeal against sentence is also dismissed.