HKSAR v. Wong Sze Sing also known as Wong Pak Yin

CACC 141/2022

[2023] HKCA 391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 141 OF 2022

(ON APPEAL FROM DCCC NO 1106 OF 2021)

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J U D G M E N T

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1.The 1^st applicant (“A1”) and the 2^nd defendant (“D2”) each faced a single charge of robbery of the same Fuel Station in Cheung Sha Wan, Kowloon, Hong Kong on consecutive days in January 2020 (Charges 1 and 2 respectively), contrary to section 10 of the Theft Ordinance, Cap 210. On 8 August 2022, they were both convicted in the District Court by Deputy Judge Newman Wong (“the Judge”) following a contested trial. On 2 September 2022, A1 and D2 were each sentenced to 4 years’ imprisonment. A1 only now applies in person for leave to appeal against his conviction, D2 having abandoned her application, which has been duly dismissed. At the outset of the hearing this morning, A1 advised the court that he wished to abandon his appeal against conviction. However, I decided to proceed with the matter since the court was seized of the matter and notice of abandonment should have been given before the date of this hearing. I advised the applicant accordingly but he declined to make any further submissions.

The issue at trial

2.The only issue was whether A1 was party to the robbery in Charge 1[1].

The admitted facts[2]

3.Much of the prosecution case was admitted. On 10 March 2020, A1 was arrested by a police officer for robbery and, on 17 August 2021, he was identified by Chong Chin-tong (“PW1”) at a formal identification parade. A Video Recorded Interview (“VRI”) was voluntarily given by A1 on 11 March 2020.

4.The Fuel Station particularised in Charge 1 (which the Judge described as “a shady set-up…where dutiable petroleum was sold, very likely illegally”) was first robbed on 11 January 2020 at about 4:52 am. Two workers at the Fuel Station, Kwan Chun-chow and Lo Wing-kwong (both named as the victims of Charge 1) were present when the robbery took place. A knife was pointed at them, whereupon the robbers took HK$12,600 in cash and left the scene. Events were captured at the Fuel Station at the time on CCTV.

5.It was an admitted fact that A1 had a criminal record for common assault and criminal damage in 2016 for which he was placed on probation. D2 had a clear record.

The prosecution case

6.The prosecution called PW1, who was a named co-accused in Charge 1 to give evidence. The Judge summarised his evidence as follows[3]:

“13. … According to his evidence, he met D1 for the first time in the middle or end of 2019 at a bar in Tai Po. They met thereafter once or twice every month. On 11 January 2020, shortly after midnight, he was on his way to a friend’s home when he got a phone call from someone asking him to help with a robbery. The message he got was that as the venue was an illegal fuel station, nobody would report the matter to the police. When asked if it was okay with him, he agreed to take part.

14. He set off from Tai Po Market and went to Tai Yuen Estate where he met up with four others; these included D1. They boarded a taxi afterwards. D1 sat beside the driver at the front, whereas the four of them sat behind. At the taxi, D1 told the driver to go to roundabout number 5 of the Kwai Chung Container Terminal.

15. When they arrived at the said roundabout, three of them got off. D1 instructed them to walk forward where they should see an illegal fuel station. The three persons who got off included PW1 himself, Ah Hei, and as it became clear later, Fat Sam. PW1 said D1 made it clear that they were to go over to the fuel station to conduct a robbery. After they went over to the side of the fuel station, they waited for a while as there were vehicles inside. When these vehicles were gone, the three of them then entered. They drew their knives and told the people inside that it was a robbery. All three of them were armed in fact with a knife.

16. Two men inside, whom we know from the Admitted Facts were Kwan Chun-chow and Lo Wing-kwong, were startled. The three of them asked the two victims for money and the latter took money out from the drawer. According to PW1, either Fat Sam or Ah Hei took the money. And having taken the money they then ran back to the taxi.

17. Inside the taxi, D1, with the other person, were sitting of course with the driver. After they got back to the taxi, they gave the bag of money taken from the fuel station to D1. D1 counted and after that he asked the driver to set off.

18. The group went somewhere in Shatin where, having alighted, they then split the money equally amongst the five of them. PW1 said he believed he got HK$500 to HK$1,000. After each getting his share, all five of them then took another taxi to go back to Tai Po Market. PW1 said he got off at Yan Hing Street and then the group parted company.”

7.In cross-examination, inter alia, PW1 accepted that he had several previous convictions for robbery; he denied that he had deliberately implicated A1 as the “mastermind” but agreed he had testified in order to obtain a discount in sentence; he explained the reasons why, despite identifying A1, he had been unable to identify D2 in another identification parade; and he refuted the suggestion that A1 had simply remained in the taxi. He maintained that A1 had told them where to go and had effectively acted as a lookout during the robbery[4].

8.The prosecution also relied on A1’s VRI, which was a so-called “mixed” statement. While A1 had denied being party to any robbery, the Judge noted a number of matters, including the following[5]:

“(1) D1 admitted that he got a call from a woman at 3:30 a.m. 11 January 2020 in which he was asked to accompany her to go out to do something so that she could repay D1 for a loan of HK$15,000 she borrowed from D1 the day before.

(2) D1 had known this woman for a long time.

(3) Because he was worried that the woman would not have the money to repay him otherwise, he immediately went out.

(4) D1 then went downstairs from his home at Kwong Fuk Estate, Tai Po at around 4:00 a.m.

(5) The group arrived there at his place at around 4:30 a.m. by taxi. There were on board Fat Sam, Ah Hei, PW1 and a fourth person, whom we now know was actually D2 according to the defence in cross-examination of PW1.

(6) D1 had only got to know PW1, whom he called Ah Tong, a little better in the morning in question. Before that, they did not really know each other, although D1 knew PW1’s father.

(7) After that, they went to Kwai Chung by taxi. D1 sat at the front, whereas the other four sat at the back.

(8) Before going to Kwai Chung, D1 said he had asked where they were going but D2 pointed at the driver, a gesture which D1 took to mean that they should not speak in the driver’s presence.

(9) After going to the Kwai Chung Container Terminal, the taxi went round a big circle, which I take to mean a roundabout, and stopped under a bridge. Fat Sam paid for the cab fare.

(10) Then they walked to the downstairs, to use the words in the video recorded interview, of a factory, where they changed to another taxi.

(11) The taxi went past two roundabouts and stopped.

(12) PW1, Fat Sam and Ah Hei then alighted. D2 told D1 to wait with her at the taxi.

(13) About 5 to 10 minutes later, PW1, Fat Sam and Ah Hei ran back. Fat Sam was carrying a silvery-colour paper bag.

(14) There were a lot of coins and banknotes in the bag.

(15) One of the four sitting at the rear told the driver to take them to Tai Wai.

(16) On the way, Fat Sam counted the money and said there were about HK$2,000.

(17) They alighted after the taxi arrived at Sun Chui Estate in Tai Wai. Fat Sam paid the fare with the money in the bag.

(18) All five of them went to McDonald’s for drinks and then some of them went to the 7-Eleven Convenience Store for cigarettes.

(19) It was about 5:05 a.m.

(20) After that, they sat on a bench where Fat Sam counted the money again. When Fat Sam finished, they split the money, each of them, meaning PW1, Fat Sam, Ah Hei and D2, got HK$500. After D2 got her HK$500, she passed it to D1 as part of the repayment.

(21) They then took another taxi to go back to Tai Po for Chinese tea.

(22) Although D1 believed the money were proceeds of robbery, he took it because D2 said it was for repayment of his loan.

(23) When D1 was shown some pictures, Exhibit P3(g), he identified in the pictures PW1, Fat Sam and Ah Hei.

(24) And lastly, D1 said he had been to the fuel station before when he was working as a delivery vehicle attendant. The vehicle went there to tank up.”

The defence case

9.A1 elected not to give evidence at trial. According to the cross-examination conducted on his behalf, as well as what was stated in his VRI, the crux of his defence was that A1 was a mere bystander and that had not been a party to the robbery alleged.

Reasons for verdict

10.The Judge first reminded himself of the following issues:

(1)  the two charges against two defendants should be considered separately[6];

(2)  special care should be taken by the court in assessing the evidence of accomplices[7]; and

(3)  the burden and standard of proof[8].

11.In addressing the submissions of the defence, the Judge considered that:

(1)  since, according to his VRI, A1 had been to the Fuel Station before, it was not unreasonable for him “to take the lead in the first robbery”[9].

(2)  PW1 had adequately explained why it was that he was only able to identify one of the two defendants at the identification parades[10].

12.The Judge found PW1 to be both credible and reliable. He had answered all questions put to him by both sides in a straightforward and unreserved manner. There was no inherent weakness in his account, nor did he exhibit any signs of embellishment or exaggeration[11]. By contrast, the Judge did not accept A1’s case, or what he had claimed in his VRI[12]. Accordingly, having considered the evidence against A1, he was satisfied of his guilt on Charge 1[13].

Grounds of appeal against conviction

13.A1 has not filed any grounds of appeal.

Respondent’s submissions

14.Ms Janice Cheuk, on behalf of the respondent, submits that the Judge had the opportunity to observe and hear PW1 giving evidence and was clearly in the best position to assess his credibility. The Judge had sufficiently dealt with the defence's challenges to the evidence of PW1. In the absence of any improbability or inconsistency, the Judge’s reasoning could not be criticised.

Consideration

15.In the absence of any written grounds of appeal against conviction, I have examined the Judge’s Reasons for Verdict carefully for any possible errors of law and fact. Given that this case was essentially an issue of credibility, the Judge appears to have addressed all relevant considerations, particularly in regard to PW1, about whom the Judge was well aware that he had to be cautious before accepting accomplice evidence. The Judge has dealt with all matters that I would have expected him to deal with in such a case and I can find no reasonably arguable grounds of appeal against conviction.

16.The application for leave is accordingly refused. The applicant is nevertheless duly reminded that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also reminded that the Court has power to order that any time spent in custody pending the appeal shall not be counted as part of the sentence to which A1 is subject, if it were to come to the conclusion that there was no justification for renewing the application.

Ms Janice Cheuk SPP, of the Department of Justice, for the Respondent

The 1^st Applicant appeared in person