R. v. WONG SIU LUNG

IN THE COURT OF APPEAL

1994, No. 610

(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is an application for leave to appeal against conviction and, if necessary, against sentence also.

2. The applicant was convicted by Judge Muttrie after trial in the District Court for robbery and sentenced to imprisonment for five years.

3. The Crown case could be taken from the learned judge's Reasons for Verdict. At about 4:30 to 5:00 am, a taxi driver (PW1) took five passengers to the Shing Mun Reservoir, where they tied him up and robbed him of $950 and a portable telephone. He managed to free himself and he drove back down the road. On the way he saw five persons whom he thought were the robbers. He then saw some bystanders and he called the police. He also saw these same five persons approaching and he raised the alarm. The five persons fled into the bush. When the police arrived, they searched the bush where PW1 had indicated that two of the persons had gone. There they found the applicant and his co-accused lying down with PW1's portable telephone close to them. When the police brought the applicant and his co-accused to PW1, PW1 identified them as those having taken part in the robbery. The applicant showed signs of being drunk and was taken to hospital. He was questioned in the hospital in the afternoon of the same day and made a confession.

4. The judge in his Reasons for Verdict said that he would not have convicted on the evidence of PW1 alone. The cautioned statement made by the applicant therefore played a crucial role.

5. There are three grounds of appeal but it is necessary for us to concern ourselves with Ground 2 only. In the light of our decision, it will not be necessary for us to peruse Grounds 1 and 3.

6. Ground 2 reads:

"The learned Judge erred in stating that D1's good character did not count for much because most robberies are committed by young men in groups and some of them are of good character beforehand."

7. This ground is based on a statement in the Reasons for Verdict which reads:

"Could the Defendants' story reasonably be true? I have already noted that they are of good character and that good character goes to credibility. It also goes to the question of whether a person is likely to have committed the offence, but this does not count for much in the case of a young man charged with robbery; the fact is that most robberies are committed by young men, in groups, and inevitably some such young men are of good character beforehand."

8. The judge clearly had in mind the relevance of good character of an accused. He rightly directed himself that good character went to credibility but on the issue of propensity he was in effect saying that good character does not show a lack of propensity in the case of any young man charged with robbery because most robberies are committed by young men in groups (and the applicant was in a group) and inevitably some such young men are of good character.

9. In our view, this is a fatal error. We therefore allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal against conviction. Accordingly, the conviction is quashed and the sentence is set aside.

10. We have also heard counsel on the question of a re-trial. Having taken all circumstances into consideration particularly the strong evidence against the applicant, we order a re-trial.