THE QUEEN v. CHAN TUNG HUNG

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, Chan Tung Hung, who is now aged about 19, was charged jointly with two other youths with robbery in the District Court. He was D2. He was convicted on 5th November 1990 after a trial by judge Tung and, on 19th November, was ordered to be detained in a Training Centre. From that conviction and sentence he now seeks leave to appeal.

2. The victim of the robbery was a taxi driver (PW1). He told the court that in the early hours of 12th March 1990 (at about 2 a.m.) he picked up three youths who asked to be taken to the Nam Fung Textile Factory in On Yuk Road, Tsuen Wan. His passengers all sat in the back of the vehicle. When they reached the factory, PW1 switched on the taxi's interior light, expecting to be paid. Instead, one of the youths produced a Gurkha knife. As a result PW1 handed over all the money he had with him, totalling $420, in the following denominations: one $100 note, one $50 note, two $20 notes, the rest being $10 notes, one of which was an old issue note which is larger in size than the current $10 notes.

3. The taxi driver used his radio to report the robbery to his "control" when the youths left him and the police were informed. At about 2:25 a.m. a police party arrived at the Nam Fung Factory and as a result of what they were told, some police officers searched the area, being driven by the victim in his taxi. They intercepted the three accused in Tso Kung Square; by this time it was 2:36 a.m. It was a 10 to 15 minute walk from the factory to the place where the youths were seen and arrested.

4. When they were searched, D1 was found with $420 on him in the same denominations as the bank-notes stolen from the taxi driver, and one of them was a $10 note of an earlier issue. D3 was found holding a bag in which there was a Gurkha knife. Nothing was found on the applicant. According to one of the police witnesses (PW4), on arrest and after caution, D1 said: "Give me a chance. This is the first time I commit robbery". He had earlier admitted that the money found on him had been taken in the robbery. D3 said: "Sir, in a moment of greed we wanted to get some money to spend. Give us a chance." When one of the arresting police team (PW5) asked the applicant his address and why he was there, he received no reply. The taxi driver identified D1 as one of the robbers at the place where the arrest took place.

5. D1 and the applicant elected to remain silent and to call no witnesses when their rights were explained to them. D3 gave evidence and said that the applicant was his elder brother. He said that before he and his brother were arrested, they had taken a minibus to Tsuen Wan from Tuen Mun. They had got off the bus near the police station and were crossing the road on their way home when they met D1 by chance. He was a friend of some three years' standing. D3 added that at the time D1 had been with two other young men. He admitted that he was holding the bag with the Gurkha knife in it when arrested, but stated that he had been ask by D1 to hold it for him while he smoked a cigarette. He denied saying what the police attributed to him after his arrest and caution. His evidence was not believed by the judge.

6. The judge reviewed the evidence very fully in his Reasons for Verdict. At pp. 3-4, he had this to say:

        Even for D2's case if the court is satisfied beyond reasonable doubt that D1 and D3 were two of the three robbers, after accepting the direct evidence stated coupled with the circumstantial evidence against both of them. The irresistible inference I inevitably have to draw is that D2 also must be one of the three robbers. In reaching such conclusion, I have to stress the significance of the time and venue elements,"

7. Mr. Philip Wong, who represents the applicant before us today, if I understood his submissions correctly, was not so much contending that the evidence in the case was insufficient to found the conviction but rather complaining about the judge's treatment of the evidence.

8. In our judgment, there was a strong case based upon circumstantial evidence against the applicant which was carefully examined by the learned judge and there were no coexisting circumstances which could be said to weaken or destroy the inference of guilt that could be drawn from it. The circumstantial evidence was cogent and compelling and the applicant should not be surprised if an inference of guilt was more readily drawn in the light of the fact that he chose not to give evidence before the court. The circumstances in which he was found, in the early hours of the morning (a) so near to the place where the robbery occurred (b) so soon after it had been committed and (c) in the company of two youths (one of whom was his brother) against whom the evidence of complicity in the robbery was quite overwhelming, called for some explanation which he chose not to give. We find no merit in the grounds of appeal put forward on behalf of the applicant and dismiss his application for leave to appeal against conviction.

9. The applicant is unrepresented on the question of sentence. He asks this court to place him on probation. In our judgment he was extremely lucky not to have been sentenced to a substantial term of imprisonment for this serious offence, committed at night against a defenceless taxi driver, when a knife was used to threaten the victim. The application for leave to appeal against sentence is refused.