R. v. TRAN VAN HIN and Another

IN THE COURT OF APPEAL

1992, No. 519
(Criminal)

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J U D G M E N T

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Penlington J.A. (Delivering the judgment of the Court):

1. These are applications to appeal against convictions entered by Judge Kilgour in the District Court on various charges of escaping from a Refugee Detention Centre, resisting arrest, assaulting police officers, being armed with offensive weapons and two charges, the 7th and 8th, of robbery. They pleaded guilty to the charges of escaping from the centre but were convicted on the other ones after trial. Originally the first applicant (D1) was not named in the 7th count but he was added to it at the close of the Crown's case, the judge having asked D1's counsel if he had any objection and being told there was none. We are satisfied that that course was perfectly proper; indeed in the light of the Crown's opening address we are puzzled as to why D1 was not always included in the 7th charge.

2. The evidence, as found by the trial judge, was that on the 8th January the applicants were seen approaching the Tuen Mun Refugee Camp at 1725 hrs. When confronted by a party of police officers they ran away towards the camp but were apprehended. There was in each case a struggle and each applicant produced a knife. Another knife dropped from the second applicant's (D2) pocket during the course of the struggle in which two police officers received minor injuries. D1 was found to have a pendant round his neck and he had a $500 banknote. D2 was wearing a wedding ring and a lady's watch. In a hut in the refugee camp was found a jade pendant.

3. There was evidence from a Miss Chow Wai Ha that, on the evening of the 4th January, she was robbed by two men armed with knives. It was dark and she was not able to recognise the men but she said that they were not native Cantonese speakers. The men took a $500 banknote from her wallet and also took her watch and a pendant. She defended herself and was cut on the hand, albeit not very seriously. She identified her watch and pendant as the pendant found on D1 and the watch worn by D2.

4. On the following night, the 5th January, Miss Lau Lai Ha was walking in the same vicinity and was also robbed by two men armed with knives. Again it was dark and she could not recognise the men but she also said they were not native Cantonese speakers. Her bag was searched and the wedding ring she was wearing was removed which she later identified as the one worn by D2. A pendant was also taken which she identified as the one found in the hut. She suffered slight cuts on the throat and armpit but a quite serious one on her hand. The two men were disturbed by a local villager who came along and they fled towards the detention camp.

5. Neither applicant gave evidence but it was their case, as put to the prosecution witnesses, that they had been arrested inside the camp and the knives had been planted on them. They had not assaulted the police officers but had in fact been themselves assaulted. It was not apparently challenged that the stolen property was found on them but, of course, some days after the robberies.

6. The judge accepted that the evidence as given by the police officers and by the robbery victims as reliable. He was however fully conscious of the fact that neither victim could identify the robbers and the Crown's case depended substantially on those charges on the applicants' being in recent possession of the stolen property. He considered the relevant authorities relating to that and also considered the other evidence against the applicants. That was that knives similar to those used in the robbery were found on the applicants at the time of their arrest, they are not native Cantonese speakers and that there were two robbers in each case. He also took into account that, while under no obligation to do so, neither applicant had chosen to give evidence to account for his possession of the stolen property.

7. D1 in his written grounds of appeal says he was found outside the camp and was beaten up by police officers and forced to confess. (No such confession was tendered by the Crown.) He said that the knives produced in court as exhibits did not tally with the description given in the charge sheet, that there was no sale certificate for the pendant found on him which belonged to Miss Chow. He pointed to discrepancies between what was in the victims' statements and their evidence given in court. Today he did not add anything of any substance to those grounds of appeal.

8. D2 in his written grounds of appeal simply says he was innocent of the charges but today he chose to tell us that in fact he bought the ring and the watch from a young lady who apparently wished to sell them as her husband had been sent to jail. He did not choose to give that evidence before the trial judge but it would be most unlikely that a woman would sell her wedding ring and that the applicant would purchase such an article, and also a lady's watch. None of what D2 said to us was put to either Miss Chow or Miss Lau.

9. We are satisfied that there is nothing whatever in these grounds of appeal and the applications for leave to appeal against conviction are refused. These applications are entirely without merit and there will be three months' loss of time.

10. Before leaving the case we would only add that there is understandably no appeal against sentence. These were robberies committed at night time by two men in which women were robbed of their possessions and in defending themselves injuries were inflicted - in one case quite severe injuries to the hand. The convictions were after trial and in the case of D1 he has previous convictions. These were cowardly attacks and, in our view, the total sentences passed on each applicant of five years' imprisonment appears to be extremely lenient in light of the guidelines in R. v. Mo Kwong Sang [1981] HKLR 610. Indeed we are surprised that these charges were not brought in the High Court.