HKSAR v. CHOW CHI SIN

CACC 400/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 400 OF 2005 

(ON APPEAL FROM DCCC 627 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.  The applicant, Chow Chi Sin, together with Wu Kai (Wu) appeared before Deputy Judge William Lam (the judge) in the District Court on an indictment consisting of three counts of robbery (1^st to 3^rd charges) and two counts of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (4^th and 5^th charges).

2.  The 1^st, 2^nd and 5^th charges were directed at Wu alone. The applicant was jointly charged with Wu on the 3rd charge and he also faced the 4^th charge on his own.

3.  The applicant, having pleaded guilty to the 4^th charge and having been convicted of the 3^rd charge after trial, was sentenced to the respective terms of 15 months and 51 months' imprisonment with 12 months on the 4^th charge to run consecutively to the 51 months on the 3^rd charge. The total sentence on the applicant is 63 months' imprisonment.

4.  The applicant sought leave to appeal against both conviction and sentence on the 3^rd charge only. On 6 March 2006, Stuart-Moore VP rejected his application and he renews his application before us.

The Facts of the 3^rd Charge

5.  On 24 April 2005, shortly after midnight, Madam Choi So-ting (Madam Choi) walked past the pedestrian subway in Tai Tau Leng, Sheung Shui and met two men sitting at the bottom of the staircase. The two men blocked Madam Choi's way and declared robbery in Putonhua.

6.  Madam Choi was pushed onto the ground and punched on the head several times. Eventually, the robbers took away her handbag containing a mobile phone with a SIM card, a wireless headset, a purse, cash of $4,500, a Hongkong Bank Visa card, a Hongkong Bank cash card, a Home Visit Permit, a HKID, a coin bag with a bunch of four keys, and a cosmetic bag.

7.  Madam Choi suffered injuries to her head and forearm. She was sent to North District Hospital and was discharged after treatment.

8.  At about 4 a.m. on 24^th April 2005, about four hours after Madam Choi was robbed, the police intercepted the applicant and Wu near the Shenzhen River. They both admitted to have sneaked into Hong Kong at about 10 p.m. on 23 April 2005. The police subsequently found Madam Choi's mobile phone hidden in the applicant's underpants, and her SIM card in Wu's trousers pocket. When questioned by the police, the applicant denied having robbed Madam Choi and claimed that somebody gave him the mobile phone in settlement of a debt.

The Defence Case

9.  The applicant did not give evidence. However Wu gave evidence with a view to exonerate both himself and the applicant. Wu said they sneaked into Hong Kong together with a Mr Li and “Shandong” on 23 April 2005. As the applicant was not feeling well, he stayed with him in their hideout whilst Li and “Shandong” went away until 3 a.m. on 24 April 2003.

10.  On their return, the applicant asked Li for the return of RMB 50 which the applicant lent him in Shenzhen. Li then handed over the mobile telephone to the applicant as a security. He also said the SIM card was put inside a tissue paper given to him by Li and he just put it in his pocket.

The Judge's Findings

11.  The judge rejected Wu's evidence. The judge pointed out that the applicant and Wu were arrested shortly after the robbery occurred and that the stolen items were found on their persons. The judge also pointed out that they were both Putonghua speaking and that their appearance fitted Madam's Choi's description of the robbers. The judge concluded that the applicant and Wu were the robbers in the 3^rd charge.

Appeal Against Conviction

12.  In his written application, the applicant did not put forward any ground other than saying that he had grievances against both the conviction and sentence. In his oral submission, the applicant put forward a number of grounds to try to convince us that his conviction on the 3^rd charge was unsafe.

13.  The applicant says that there was no DNA or fingerprint evidence to support the prosecution case against him. He emphasizes that the victim's description of the robbers' appearance did not match his appearance and that the victim failed to identify him at the identification parade. The applicant further suggests that the presence of the victim's mobile phone on his person was insufficient to prove the charge of robbery against him, as the mobile phone was in fact given to him by Li.

Discussion

14.  The judge was clearly entitled to reject the evidence of Wu, which was far-fetched and unconvincing. The applicant was found to be in possession of a stolen item shortly after the robbery together with another person who had another stolen item. Their appearances were certainly consistent with those of the robbers. The absence of DNA and fingerprint evidence against the applicant does not mean that he was not one of the robbers and does not cast doubt on the prosecution case against him.

15.  On the undisputed evidence presented by the prosecution, the judge was entitled to infer that the applicant was one of the robbers.

16.  We do not find the conviction on the 3^rd charge against the applicant in any way unsafe or unsatisfactory. The application for leave to appeal against conviction is dismissed.

Appeal Against Sentence

17.  The judge adopted a starting point of 51 months' imprisonment on the 3^rd charge, pointing out that it was an unarmed robbery involving the use of force.

18.  The applicant together with another person robbed Madam Choi of her handbag in the early hours at a pedestrian subway, shortly after they had sneaked into Hong Kong. Madam Choi was pushed onto the ground and suffered injuries to her head and forearm. The starting point of 51 months on the 3^rd charge is a proper sentence.

19.  The judge was entitled to order 12 months of the 15 months' sentence on the 4^th charge to run consecutively to the sentence on the 3^rd charge.

20.  The total sentence of 63 months is neither manifestly excessive nor wrong in principle. We therefore also refuse leave to appeal against sentence.