HKSAR v. YIM YING KIN

CACC 606/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 606 OF 1998

(ON APPEAL FROM DCCC 1089 OF 1998)

---------------------

----------------------

J U D G M E N T

----------------------

Leong, J.A. (giving the judgment of the Court):

1. The applicant Yim Ying-kin faced one charge of robbery and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. At a trial in the District Court before His Honour Judge Line, he was convicted after a trial of the robbery charge. The robbery charge was that he had together with another person D2 robbed a taxi driver of an amount of cash, a wallet and a wrist watch. He was sentenced to 5 years and 6 months imprisonment for the robbery charge. He now applies for leave to appeal against the robbery conviction.

2. In his notice of appeal, the applicant merely stated that he admitted the immigration offence and denied the robbery offence. Today the applicant added that he was merely present at the scene and he did not actually take anything away from the victim nor did he harm him. As far as the wrist watch was concerned, it was exchanged from the other robber.

3. The principal witness, the taxi driver PW1's evidence was this. On 28th August 1998 at about 8:00 p.m. the applicant and D2 hailed his taxi and told him to take them to Wo Hop Shek, a remote part of the New Territories. Having arrived there, they told PW1 to drive up a hill side. On the way, a knife was produced and a robbery was declared. PW1 was told to park the taxi and to hand over his money and wallet. PW1 did as told but he also handed to the robbers his wrist watch. Subsequently, PW1 seized an opportunity and escaped. He hid himself in the grass until dawn when he reported the robbery to the police. PW1 also told the trial Judge at the trial that after the knife was produced and robbery was declared, he saw the applicant search the front of the taxi and take away the small change there.

4. The prosecution evidence was also that when the applicant was subsequently arrested, he was found wearing PW1's wrist watch. The applicant was interviewed by the police. During the interview, he did not deny the robbery had taken place and that he was with D2 at the time of the robbery, but he denied taking part in it. He explained that the wrist watch was given to him by D2. His defence was that after he had sneaked into Hong Kong with D2 illegally, they hailed PW1's taxi to go to Tai Po. When he found that he did not have sufficient money to pay the fare, he attempted to run away but was chased by PW1 with a pair of scissors in his hand. He had no knowledge that D2 had a knife with him.

5. The trial Judge rejected the applicant's version of what happened. After he carefully considered the evidence of PW1, he concluded that he had "absolutely no doubt that the truth lay in the mouth of PW1." On the evidence he accepted, he concluded that the robbery was a joint enterprise of the applicant and D2 and it was "a planned robbery; both of them having their separate roles." He also accepted that the wrist watch the applicant was found wearing when he was arrested was the applicant's share of the proceeds of the robbery.

6. In our opinion, there is nothing which could render the Judge's acceptance of PW1's evidence unjustified. There is nothing in what the applicant has said today which is mere repetition of what he told the Judge at the trial that could show the Judge's conclusion is wrong. On the evidence as he accepted, the Judge was entitled to conclude that the applicant was a party to the robbery. The applicant was rightly convicted. There is absolutely no merit in his appeal. The application for leave to appeal must be dismissed.

7. As there is absolutely no merit in this appeal, we accordingly order that 3 months of the time he has spent in custody should not be counted as part of his sentence.