HKSAR v. Wong Chiu Lung

CACC000160/2000

CACC160/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 160 OF 2000

(ON APPEAL FROM DCCC 37 OF 2000)

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Coram: Hon Mayo VP, Leong & Wong JJA in Court

Date of Hearing: 21 December 2000

Date of Judgment: 21 December 2000

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J U D G M E N T

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Hon Leong JA (giving the judgment of the Court):

1. D3 was one of three defendants who were jointly charged with one count of robbery, the first charge on the Charge Sheet. He was also charged with one count of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was convicted of the robbery charge after trial and he pleaded guilty to the immigration offence. For the robbery, he was sentenced to 5 years imprisonment and for the immigration offence, he was sentenced to 15 months imprisonment, 4 months of which was concurrent with the sentence of 5 years. The total sentence was 5 years 11 months imprisonment. He now applies for leave to appeal against the robbery conviction and sentence on both charges.

2. The evidence against the applicant is this. On 27 November 1999 at about 12:40 pm, PW1 Chu Ping Keung and his wife PW2 Lam Wai Ching and their six-year old daughter were resting at a barbecue site in Brides Pool Country Park. Five Putonghua speaking men, one holding a chopper and another holding a paper/table knife attacked the two witnesses. PW2 was pushed to the ground by the robbers and the knife was placed against her neck. One robber stood in front of PW2 and snatched away her gold necklace.

3. The robbers then took away the properties of PW1 and PW2 and these included $500 in $100 and $20 notes, a coin purse, PW1's polo watch and Nokia portable phone, PW2's gold necklace with two jade pendants, polo ladies watch and Ericsson portable phone. They also took away from PW2 three $100 notes, a purse containing $20 to $30 in coins.

4. The five robbers then fled in the direction of Wu Kau Tang. PW1 and PW2 reported the robbery by phone to the police.

5. The following day, about 20 hours afterwards, at about 10.00 am, police officers went to the deserted village of Kau Kam Tso, which was near Wu Kau Tang and about one to two hours walk from the scene of the robbery. They found five illegal immigrants hiding in one of the deserted houses there. Among them were the applicant and the other two defendants, D1 and D2 in the present case. In the house, the police found several choppers and knives and a travel bag. Inside the travel bag were a Ericsson mobile phone with a phone number matching PW2's lost phone. There were also coins and a broken jade bangle/bracelet. On the person of D1, police found amongst other things, Hong Kong currency notes, a woman's watch and a jade pendant which PW2 subsequently identified as her property. On the person of D2, police found Hong Kong currency notes and a man's watch which was subsequently identified by PW1 as his property. On the person of the applicant, police found Hong Kong, Singapore and other countries currency notes. There were also shoes and clothes which did not belong to anyone and signs that meals had been taken inside the house.

6. At identification parades held 5 days later on 2 December 1999, PW2 identified all three defendants as three of the robbers. She identified the applicant as the robber in yellow windbreaker and white cap who snatched the necklace from her.

7. The applicant did not give evidence. The judge accepted PW2's evidence of identification and relying on her identification and the circumstantial evidence in the case against the applicant convicted the applicant of the robbery charge.

8. The single ground of appeal against conviction is that the conviction was unsafe and unsatisfactory. It is submitted by Ms Crabtree on behalf of the applicant that PW2's evidence was not reliable having regard to the brief opportunities she had to see the culprits and only some of the stolen properties were found on the persons of the other defendants and at the deserted house. And also PW2 did not identify any clothing found in the house as those worn by the applicant. It is also submitted that the judge erred in relying on PW2's evidence because at the second identification parade, PW2 in pointing out the applicant said words to the effect : "look like one of the culprits" which showed an element of doubt. Complaint is made that the judge did not direct herself to the circumstances in which the identification by PW2 came to be made. It is also complained that the judge had not followed the guidelines of Turnbull [1977] 1 QB 224. Further, it is submitted that the judge erred in relying on the evidence of the applicant being found in possession of a HK$100 note as evidence supporting PW2's evidence of identification.

9. Regarding PW2's evidence of identification, the judge said this (at page 11 of the bundle) :

"Focusing on the identifications made by PW2, I note while her view of the culprits in bright daylight were unimpeded, the opportunity for observation was brief and made under fraught circumstances. They were strangers and she was taken by surprise. She has given a description of only one culprit at the initial police report, so it is not possible to make a comparison of those identifications to the initial descriptions to test the reliability of her observation in this respect.

Following the guidelines of Turnbull [1977] 1QB 224, I have warned myself that it would be dangerous to rely on this evidence unless I find evidence to support the reliability of the identifications. An honest but mistaken witness may appear convincing. ...

... In the circumstances of this case there is a special need for caution."

10. Further at page 13 of the bundle, she said :

"When cross-examined about her identification of D3, PW2 declared she was sure he was the one who, in yellow zip-up windcheater and white cap, had stood in front of her so she had clearly seen him. He was the one who, after her husband was robbed, had snatched her necklace and other things from her handbag. When Miss Crabtree suggested her words meant D3 resembled a culprit but was not one of them, she explained at that time at the identification parade, when viewing the line-up, she had become frightened and, 'When I looked at that person, he looked like one of the culprits, so he looked like one of the culprits. I cannot say another thing.'"

11. The judge then said she was satisfied beyond reasonable doubt that PW2 had immediately identified D3 as the robber in yellow jacket and PW2 identified D3 not from the clothes.

12. In our view, the judge's approach to the identification evidence of PW2 had followed closely the guidelines of Turnbull. The judge must be taken to have directed herself to all the circumstances of identification as required by the guidelines. She was aware that having regard to the quality of the evidence, she had to look for supporting evidence before she could rely on it to convict and she found support in the circumstantial evidence of the case.

13. Referring to the $100 note, the judge said (on page 14 of the bundle) :

"D3 was in possession also of a $100 note. He has not explained how he came to be in the same room with the others who had stolen property from the robbery."

The judge was there not, as suggested by Ms Crabtree for the applicant, relying on the $100 note to convict the applicant. What she said in effect was this was part of the circumstantial evidence from which she arrived at her conclusion.

14. Finally, it is submitted that the applicant was not allowed to change clothes at the identification parade and the parade was not conducted in a fair manner. The evidence of the Chief Inspector is that before the identification parade was held, the agreement of the applicant to participate in the parade was obtained and the applicant had no objection to the line-up of actors. On the question of clothing, the Chief Inspector said this at page 60 of the bundle :

"If he was standing out because of the clothes, yes, I would arrange for clothing for him, and have done on occasions in the past. The main thing we check when we have our actors lined up, is that the clothing is of a similar nature. I mean, usually it's sort of casual. ... But in this case, ...everybody was dressed casually. The type of dress was compatible."

15. The Chief Inspector's evidence was also that after the parade, the applicant agreed that the parade was conducted fairly.

16. The judge accepted this evidence and was satisfied that there was nothing improper in the conduct of the identification parade and on that evidence she was entitled to reach that conclusion. We see no merit in this complaint.

17. In our view, having accepted PW2's evidence that she was sure in her identification of the applicant and there being ample circumstantial evidence in the present case from which she could find support for PW2's identification evidence, the judge was entitled to reach the conclusion she did. As the judge said, it cannot be pure coincidence that less than 24 hours after PW1 and PW2 were robbed by five Putonghua speaking men who were seen to have fled to the area of Wu Kau Tang that the police found the applicant and the other defendants and two other men all speaking Putonghua, in a deserted village near Wu Kau Tang about one to two hours walk from the scene of robbery and stolen properties were found on two of them as well as in the house.

18. The judge had considered all the evidence and was entitled to conclude as she did. We see no reason to disturb the conviction. The application for leave to appeal against conviction is dismissed. The applicant has abandoned his application for leave to appeal against sentence. The application is accordingly dismissed.

Representation:

Mr Vincent Wong, Senior Government Counsel, for Respondent

Ms Margaret A Crabtree, assigned by DLA for Applicant (re : conviction)

Applicant in person - Wong Chiu Lung (re : sentence)