The Queen v. Hung Sing Wah and Another

CACC000167/1988

_____________

Coram: Hon. Fuad, V.-P., Hunter, J.A. & Macdougall, J.

Date of hearing: 23 June 1988

Date of judgment: 23 June 1988

_____________

J U D G M E N T

______________

Hunter, J.A.:

1. The applicants, Hung Sing Wah and Wong Kwun Man, were respectively the first and second defendants who stood trial before H.H Judge Wilson in the District Court, and on 8th March of this year were by him convicted of one charge of robbery. The charge was that on 15th December 1987 in Chiu Lung Street near Des Voeux Road Central that they robbed a girl named Kwong Lai Chun of one carrier bag containing a substantial quantity of golden ornaments, chains, pendants and jewellery to a value of over HK$333,000.

2. The events as described in the court below by the victim were that she was pounced upon by two persons (she thought that there might even have been three) in Chiu Lung Street and her bag was seized. Then the two men ran off in different directions. One ran down towards Des Voeux Road Central and the other ran up towards Queen's Road Central. Now there has been a lot of submissions in this case about identification with references to catch phrases like "fleeting, glances". Those submissions seem to us to overlook the simple and obvious fact in this case that a person, who commits a robbery and then runs, goes a long way to identify himself as the robber if he runs unsuccessfully : in other words if he is then caught close to the scene of the crime while still running. That is what happened to both these applicants.

3. The case against the first applicant which the trial judge accepted went like this. He was the one who ran down towards Des Voeux Road. Then on duty in Des Voeux Road was a police sergeant. He started at once to enter this small lane, and the applicant more or less ran straight into him. He was stopped and asked what he was doing The answer which came straight back was : "I did not do the robbery". This answer in itself, in the circumstances cried out for some explanation.

4. The other evidence implicating this applicant came from a civilian who literally witnessed the robbery from what he described as "two-lorry-lengaths distance" in Chiu Lung Street. Immediately after it occurred he himself took off after the young man who went in the direction of Queen's Road. But he lost him and noticed that some police officers were taking over the chase. So he returned to the scene of the robbery where he found the police sergeant together with the first applicant. He had little difficulty in identifying that person as the other robber that he had seen committing, this offence. There was also found in this applicant's possession a notebook which gave the name of the second applicant's brother and the second applicant's home telephone number which at least produced some connection between the two applicant.

5. In those circumstances you have the situation of a young, man running away from the scene of the crime at very high speed volunteering the so-called defence, "I had, nothing to do with the robbery"; without further explanation as to how he knew the robbery had been committed : no explanation whatever as to why he was running : identification by someone who witnesserd the robbery aconnecting link between him and the other applicant : and no evidence whatever given by that applicant to the court below. In our judgment, the trial judge was perfectly entitled to come to the conclusion he did and find the case proved against this applicant.

6. The case against the second applicant the judge described as "overwhelming" With that description we entirely agree No less than four persons gave evidence as to the course that he took from the scene of the robbery up into Queen's Road Central, past the Dragon Seed Building where probably as a result of an attack on him by one of the witnesses he dropped the bag that he was carrying so that all the stolen jewellery was scattered into the street and the pavement outside Dragon Seed, to his right turn into another lane Li Yuen Street where eventually he was subdued.

7. The first of those witnesses pw2 had seen him running up Queen's Road from the opposite side when he was waiting to cross. He saw him drop the bag at Dragon Seed. He then joined the chase. He admitted that as he ran across the road and in chasing on down Li Yuen Street he lost sight of him momentarily.  He then picked up the sight of him again, and saw him stopped and subdued by two other persons. There was no doubt whatever that the person who was ultimately stopped and held in Li Yuen Street was this applicant.

8. The second civilian witness was PW4. He was on the pavement in Queen's Road Central when this young man came running towards him. It was he who made to kick him as he passed and probably as a result of that caused him to drop the bag. He likewise gave a description of the man's clothing which matched this applicant.

9. The third relevant witnoss was PW6. He vas a police officer likewise on duty in Des Voeux Road who had run in with PW3. He chased him all the way and was there eventually shortly after he was finally caught in Li Yuen Street. His target was the man in the dark jacket which he eventually identified in court and produced. Of course he lost sight of him momentarily but he was chasing the man in the dark jacket. It shows how a runner in these circumstances readily stands out from the crowd and identifies himself as one of the robbers unless he comes forward with some other explanation or unless there is evidence that other people are running in the street at the same time so there are some possibility of confusion But there are no such evidence in this case.

10. The last witness was PW7 who happened be an off duty police sergeant. He was standing in the Queen's Road Central when the young man ran straight past him. He saw him drop the bag. He then started to chase him very close behind and eventually in Li Yuen Street closed the gap, seized his clothing and brought him to the around. That man was the second applicant.

11. Now a desperate attempt has been made to suggest that three of those witnesses' evidence was irrelevant, because it was not conclusive. That is a totally hopeless proposition, as was the suggestion that because it was irrelevant it was prejudicial. This with respect to counsel is simply playing with words. All that evidence was highly relevant and highly probative. Collectively with the evidence of PW7 it produced chat this judge held to be an overwhelming case against that applicant.

12. There is no substance in either of these applications, both of which are dismissed.

Representation:

Peter Wan (M/s C W Leung & Co) for A1

Anthony Chan (M/s C W Leung & Co) for A2

M Hartmann (Crown Prosecutor) for Crown/Respondent