CHAN CHI ON v. R.

IN THE COURT OF APPEAL

1994, No. 41
(Criminal)

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J U D G M E N T

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Litton, J.A. giving the judgment of the court:

1. The applicant Chan Chi-on was convicted by His Honour Judge Hawkes in the District Court on 22 December 1993 on one charge of robbery and was sentenced to four years' imprisonment. He now seeks leave to appeal against that conviction. This applicant was charged together with another person SO Man-lung who was the second accused at the trial.

2. The crime occurred on 11 July 1992 at Sam Mun Chai Pier, New Territories when two persons were robbed; amongst the goods stolen were the following: a lady's handbag, a wallet, $2,500 in cash, a portable telephone and other things. The robbery occurred at about 10pm when the victims had finished their meal at a restaurant. In approaching their car parked near the Sam Mun Chai Pier the female victim PW1 was grabbed from behind. Her mouth was covered. She was pushed to the ground and her handbag was snatched.

The male victim PW2 was in the meanwhile held at the point of a knife. The person who held the knife and threatened PW2 was this applicant.

3. The second accused escaped. This applicant failed to get away from the scene of the crime. He was caught by the villagers nearby and whilst waiting for the police to arrive, the female victim, PW1, went up to the applicant to ask him about her handbag and he said, "It is not with me. I only grabbed hold of him," indicating PW2. Later on at the police station the statement he had made to PW1 was post-recorded by the police and the applicant signed the written statement; he went on to elaborate on how the second accused had persuaded him to join in snatching a handbag and sharing in the proceeds.

4. At the trial this applicant's case was one of mistaken identification. He said this: He happened to be in the vicinity, having previously arranged to meet the second accused there. He had just arrived at the area near the restaurant when he heard a shout of robbery and being afraid he hid in some bushes. He said he heard people running past and thinking that that might have included his friend, the second accused, he ran out himself. Whilst thus running he suffered an asthma attack and was caught by the villagers. They asked if he was one of those who had robbed but because of his asthma attack he was unable to give an answer.

5. The judge having heard this applicant's testimony wholly rejected his explanation, but accepted that he was friends with the second accused. Upon the evidence adduced by the prosecution, he was convicted.

6. In this court his complaint is that the judge erred in admitting it into evidence his cautioned statement made to the police. He further complains of the quality of his identification by the victims. In our judgment there is no substance whatever in these grounds of appeal. His conviction for robbery is safe and satisfactory and the application for leave must be refused.