HKSAR v. LAM CHUN YU

CACC000067/1997

IN THE COURT OF APPEAL

1997, No. 67
(Criminal)

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BETWEEN
	HKSAR
	AND
	LAM CHUN-YU	Appellant

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Coram: Hon. Power, V.-P., Barnett and Saied, JJ.
       in Court of Appeal

Date of hearing: 4 September 1997

Date of delivery of judgment: 4 September 1997

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J U D G M E N T

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Hon. Barnett J. (giving the judgment of the Court):

1. The Applicant in this case faced three offences of theft and one of attempted theft, and three offences of robbery. He pleaded not guilty. After trial in the District Court, he was convicted and sentenced to six years' imprisonment. He now seeks leave to appeal against conviction.

2. The offences of theft related to cars in a car park at Pak Sha Wan, Sai Kung, from which cash was stolen or attempted to be stolen. The three offences of robbery related to old people who were stopped by a single robber in Sha Kwok Mei Village, Sai Kung, all of whom were relieved of cash by the robber. The Applicant was arrested on the morning of the 9^th August last year after the police had laid the ambush at the car park. There, they saw the Applicant approach an elderly man and demand a hundred dollars from him. At that point, the police intervened. The Applicant was arrested and cautioned. Under caution, the Applicant admitted two other robberies and theft from the cars which had been parked in the car park.

3. The Applicant has advanced a number of grounds of appeal. There is what we might term one global ground which is that the statements given to the police were not given voluntarily. As to that, we make two observations: first, if the statements were somehow extracted by force or coercion from the Applicant, it is surprising that the police did not avoid the inconsistencies and discrepancies upon which the Applicant relies in relation to two of the robbery cases. Secondly, an additional robbery offence was put to the Applicant. This he denied and this was accepted by the police who took no further action against him. We therefore find nothing in the complaint that the statements were not made voluntarily.

4. In relation to the two robbery offences which the Applicant admitted after his arrest, the Applicant complains that there are a number of discrepancies between what the victims said and what was contained in the Applicant's statements. In particular, there were discrepancies about what the robber used to threaten the victims and there were discrepancies as to the age of the robber given by the victims. The victims both said the robber was in his twenties whereas the Applicant is aged about forty.

5. The District Judge, in his reasons for verdict, specifically identified the inconsistencies. He was alive to the fact that the evidence of the victims did not exactly coincide with the admissions which the Applicant had made to the police. But the judge also identified many common features of what the victims said and of what the Applicant had said in his statements. The judge was of the view that the common features pointed overwhelmingly to the fact that the Applicant was the robber in each case. This was a matter peculiarly for the judge to assess, he having heard the evidence and seen the witnesses. We are unable to disagree with his assessment.

6. The Applicant also makes a global complaint in respect of the four theft or attempted theft offences. He complains that there were two car parks at Pak Sha Wan and that the police did not identify which car park was involved. He also complains that the owners of the cars did not come to the court to give evidence about the burglary. And as he said this morning, evidence of proof is most important in Hong Kong law.

7. At his trial, the Applicant was represented by a solicitor. On behalf of the Applicant, the solicitor signed an agreed statement of facts in relation to the thefts from the vehicles, namely where they occurred, who the owners were and what money was stolen. There is therefore nothing in the complaint made about the theft cases.

8. In the circumstances, the application for leave to appeal against conviction is refused.

(N. P. Power)	(N. J. Barnett)	(M. Saied)
Vice-President	Judge of the Court of First Instance	Judge of the Court of First Instance

Representation:

Mr. John Reading, SADPP for Director of Public Prosecutions.

Appellant in person.