The Queen v. Kwan Yun-hang

CACC001594/1983

BETWEEN:

Coram: Roberts, C.J.,  Yang & Barker, JJ.A.

Date: 6th April, 1984.

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JUDGMENT

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Roberts, C.J.:

1. The appellant, KWAN Yun-hang (D.2), and CHOI Tat-ki (D.1), were charged with the robbery of Miss LIU Lin-chee, in the early hours of the morning of 19th August, 1983.

2. Miss LIU gave evidence that she was returning home at about 2.40 a.m. and that she alighted from a taxi in Cheung Wong Road. As she walked towards her home somebody caught hold of her, pushed her to the ground and snatched her purse.

3. After her attacker, whom she later identified as D.1, had ransacked her handbag as she lay on the ground, she saw a second man emerge from a side lane and stand beside her. The two men left together.

4. Miss LIU shouted for help and police officers, who heard her, approached. The two men ran off in different directions.

5. D.2 was pursued and caught by P.C. 20282. When asked by P.C. 20282, at the moment of his arrest, why he had run away, D.2 gave no answer.

6. He was placed in a police vehicle and driven to the place where Miss LIU had been robbed. She identified him as he sat in the police vehicle.

7. The robbery took place on 19th August. On 10th November, two persons, who have not been identified, came to see her in her flat and invited her to accompany them to a nearby restaurant.

8. When they reached the restaurant, the defendants were there and all five sat together. Neither of the defendants spoke to her. The other two persons suggested to her that she should do them a favour by not testifying against the defendants at their trial. The defendants were present but said nothing.

9. The Crown case depends mainly upon the identification of D.2 by the victim, supported by evidence of the conversations which took place almost three months'  later, on 10th November.

10. The judge has considered with care the circumstances of her identification of D.2, and such inconsistencies as appeared in her evidence, in particular the conflict between her recollection of the colour of the T-shirt being worn by D.2 with that of P.C. 20282. He has, nevertheless, decided that her identification was "accurate and truthful to the required standard".

11. D.2 argued that the judge wrongly admitted evidence of the conversation which took place between the two unidentified persons and Miss LIU on 10th November. He cited to us a passage from Cross on Evidence -

"The evidence of the misconduct of the accused on other occasions, ......... must not be given unless it goes beyond showing a general disposition towards wrongdoing, or the commission of a particular kind of crime, and has specific probative value in relation to the charge before the court."

12. This is not evidence which merely shows a general disposition towards wrongdoing. It has specific probative value, in two ways. First, if accepted, it supports the earlier identification of D.2 by Miss LIU. Second, because it is evidence of the conduct of someone charged with an offence and shows, in the same way as flight from a scene of crime can be said to do, evidence of a guilty mind.

13. This case is based on circumstantial evidence, which can be summarised as follows.

14. D.2 is seen about 2.40 a.m. by a victim of a robbery, standing close to her immediately after the robbery has been carried out. D.2 leaves with the man who ransacked her purse. When the police appear, in response to her shouts for help, he runs. He is arrested and he says nothing, when asked why he ran away. He is brought back to the scene of the robbery and immediately identified. Three months after his arrest, he and his co-defendant, through two other persons, attempt to dissuade the victim of the robbery from testifying. He gives no evidence himself at his trial.

15. This is a very strong circumstantial case, The judge was entirely justified in reaching the conclusion that he did. The application for leave to appeal against conviction is refused.

Representation:

D. Mackenzie-Ross (Liang, Ng & Lie) for Applicant

K.B. Egan, S.C.C., for Crown.