HKSAR v. Choy Kam Kuen and Another

CACC 137/2022 [2023] HKCA 1313

On appeal from [2022] HKDC 742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 137 OF 2022

(ON APPEAL FROM DCCC NO 631 OF 2021)

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J U D G M E N T

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1.The 1^st and 2^nd applicants (whom I will refer to by their trial designations as D1 and D2 respectively), stood trial before District Court Judge E Yip variously charged with the offence of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.  D1 was charged with Charge 1, while D1 and D2 were jointly charged with Charge 2.  On 21 July 2022, D1 and D2 were convicted after trial as charged.  On 18 August 2022, D1 and D2 were sentenced to 4 years and 6 months’ imprisonment and 3 years and 9 months’ imprisonment respectively.

2.On 6 September 2022, D1 filed a notice of application for leave to appeal against conviction.  On 5 September 2022, D2 filed a notice of application for leave to appeal against conviction and sentence.  However, on 6 December 2022, D2 abandoned his application for leave to appeal against sentence, and it was dismissed accordingly.

3.The particulars of the two fraud offences that D1 and D2 variously faced read as follows:

Charge 1

CHOY Kam-kuen [D1], between the 15^th day of July 2015 and the 29^th day of July 2015, both dates inclusive, in Hong Kong, together with other persons unknown, by deceit, namely by falsely representing to YEH Shun-yiu [PW1 at trial] that:

(i)  World Link (Holdings) International Enterprise Limited (“World Link”) would help to arrange a loan for him;

(ii)  in order to process the loan application, he had to pay $173,200 Hong Kong currency (“the administrative fee”) upfront to the said CHOY Kam-kuen; and

(iii)  if the loan application was unsuccessful, the administrative fee would be refunded to him in full amount,

and with intent to defraud, induced the said YEH Shun-yiu to commit an act or a series of acts, namely to first obtain an intermediary loan, and to pay the administrative fee to him, which resulted in benefit to himself and/or the said World Link, or in prejudice or a substantial risk of prejudice to the said YEH Shun-yiu.

Charge 2

CHOY Kam-kuen [D1] and WAN Kin-ming [D2], between the 23^rd day of November 2015 and the 30^th day of November 2015, both dates inclusive, in Hong Kong, together with other persons unknown, by deceit, namely by falsely representing to NG Wai-ping [PW2 at trial] that:

(i)  World Link (Holdings) International Enterprise Limited (“World Link”) would arrange a revolving mortgage for him;

(ii)  in order to process the loan application, he had to pay $1,799,550 Hong Kong currency (“the said sum”) upfront to the said World Link for settling his outstanding loans with Public Bank (Hong Kong) Limited (“the outstanding loans”);

(iii)  upon settlement of the outstanding loans, the loan application would be processed and completed; and

(iv)  if the loan application was unsuccessful, the said sum would be refunded to him in full amount within 90 days,

and with intent to defraud, induced the said NG Wai-ping to commit an act or a series of acts, namely to first obtain an intermediary loan, and to pay the said sum to the said WAN Kin-ming as settlement of the outstanding loans, which resulted in benefit to themselves and/or the said World Link, or in prejudice or a substantial risk of prejudice to the said NG Wai-ping.

The grounds of appeal

4.D1’s grounds of appeal against conviction are that the convictions were unsafe and unsatisfactory because: (1) the case against D1 depended wholly or substantially on the correctness of the identification evidence of PW1 and PW2; (2) the judge failed to remind himself to examine the specific weakness in the evidence of PW1 and PW2 closely; and (3) the judge rejected D1’s evidence without proper grounds.

5.D2’s grounds of appeal against conviction are: (1) the trial judge erred in safely relying on PW2’s identification of D2 at the identification parade held on 19 April 2017 because:

(a)  the opportunity for PW2’s observation of “Mr Tang” inside the room on the occasion was not long;

(b)  PW2 admitted he was not paying much attention to the facial features of “Mr Tang” inside that room;

(c)  PW2’s description of the features of “Mr Tang” in his police statement were at odds with those of D2 in terms of his age and hairstyle;

(d)  there were no special facial features of D2 which PW2 had identified in his evidence;

(e)  PW2 did not testify he had further observed “Mr Tang” outside the room when they were taking the lift together to leave the law firm;

(f)  the identification parade was more than 1 year and 7 months later;

(g)  PW2’s reasons for being able to identify D2 given in his evidence were unconvincing.  He gave only three reasons:

(i)  he picked out D2 due to his pose or gesture at the parade, yet he failed to identify what those pose and gesture were in his evidence;

(ii)  he had lean built; and

(iii)  he picked out D2 because he was grabbing his robe at the identification parade, a robe which every actor had put on;

(h)  The judge’s reasons for dismissing the defence photographs Exhibits D2-D7 as being unhelpful to the defence ignored PW2’s answer under cross-examination that photograph Exhibit D2 did not have long hair which was a feature he said “Mr Tang” had,

and (2) by reason of the aforesaid matters the conviction of D2 was unsafe and unsatisfactory.

The issue of identification

6.The prosecution case was largely agreed and the sole issue at trial was whether PW1 and PW2, the victims of the respective frauds, had correctly identified D1 and D2 as their perpetrators.

Charge 1

7.On 15 July 2015, PW1, who was the joint owner of a flat in Shatin with his wife, received a cold call from someone who claimed to be an employee of the Bank of China, who offered to help him get a low-interest loan.  Upon showing interest, it was arranged for PW1 to attend World Link’s office on 21 July 2015.  He and his wife went there as arranged and a receptionist took them to a room, where a male gave him a name card that stated he was “Kenny Cheung, Financial Planning Officer of World Link” (“Kenny”).  Kenny claimed to be the manager and told them that:

(1)  World Link was a subsidiary of Bank of China;

(2)  World Link could arrange a low-interest loan for PW1;

(3)  World Link could consolidate the loans of PW1;

(4)  World Link could help PW1 apply to the Bank of China and other banks, including Hang Seng Bank and Prime Credit, for a second mortgage;

(5)  PW1 could borrow $780,000;

(6)  World Link would charge a handling fee of $200,000, but if the application was unsuccessful the fee would not be charged.

8.PW1 agreed to these terms and signed a contract to facilitate Kenny to apply for the low-interest loan as proposed. The meeting lasted 30 to 45 minutes.

9.After the meeting, PW1 received a telephone call from Kenny telling him that he and his wife would have to go to a company called M Success Finance Company (“M Success”) to borrow the money he had arranged for PW1.

10.On 29 July 2015, PW1 was taken to M Success in Mong Kok by two men who claimed to be World Link staff.  He signed the loan agreement for a total of $780,000 with M Success and received a cash cheque for $262,400 and a crossed cheque for $517,600.  As instructed, he cashed the cheque for $262,400 and deposited the other cheque into his account.  He was then taken to the office of World Link.  Inside the same room as before he saw Kenny.  Kenny asked for the handling fee of $200,000.  PW1 hesitated because no application for the new loan had been made.  Kenny told him not to worry and gave him a rebate of $41,600, so PW1 only needed to provide him with $153,200 but there was an additional handling fee of $20,000.  PW1 gave Kenny $153,200 cash, for which Kenny issued an invoice. PW1 also gave Kenny $20,000 cash, for which no invoice was issued.  Kenny told him to wait for the processing of the second mortgage application which would take one to three months.  This meeting lasted about 45 minutes.

11.Thereafter, PW1 could not contact Kenny by telephone or the office of World Link.  On 7 September 2015, he reported the matter to the police.  The police went to the office of World Link but could not find Kenny.  Later the same day, Kenny called PW1, who told him that it would take the banks one to two months to process his loan. 

12.PW1 checked with the three banks supposedly involved and discovered no applications had ever been made for him.  A few days later, PW1 went to the office of World Link during normal business hours, but it was closed with no one in attendance.  He made a report to the police.

13.On 26 November 2015, the police arrested D1 at the office of World Link for the offence of conspiracy to defraud.  They seized, among others, a handwritten notebook (“Notebook”), containing template scripts for making cold calls to offer to help flat owners apply for low-interest loans. 

14.At an identification parade on 14 February 2017, PW1 identified D1 as Kenny. 

Charge 2

15.On 23 November 2015, PW2, who owned two flats in Yuen Long, received a call from someone who claimed to be Ms Yuen of a company working with OCBC Wing Hang Bank, promoting a property refinancing plan.  The terms were quite attractive, and he said he would consider it. 

16.On 24 November 2015, Ms Yuen called PW2 again and he said he was interested in it.  He provided her with the particulars of his two flats for valuation.  She said she could help him apply to OCBC Wing Hang Bank for a new mortgage at a very low interest rate.  She asked him to attend the office of World Link the following day with the necessary documents for processing the application.     

17.On 25 November 2015, PW2 went to the office of World Link, and a female receptionist took him to a room where a male was seated.  He sat down and the male gave him a name card in the name of KC Choy (“Choy”).  PW2 gave Choy the necessary documents for the mortgage.  Choy said he could help PW2 obtain a mortgage for both flats with OCBC Wing Hang Bank for $2,100,000.  PW2 could have $1,800,000 of it to redeem his mortgage with the Public Bank with the remaining $300,000 for his use.  The interest rate would be 1.8% per year compared to the Public Bank, which had been charging 4.5% per year.  He agreed to take up this loan and asked Choy to arrange the matter.  Choy took PW2’s documents out of the room for photocopying and returned within a few minutes.  PW2 was asked to sign some document, which Choy said was proof he had been to World Link.  PW2 was not given a copy of it.  The meeting lasted about half an hour from when PW2 arrived and left World Link.   

18.On 26 November 2015, Ms Yuen telephoned PW2 and told him that someone would inform PW2 to go to a law firm to deal with the new mortgage. 

19.On 27 November 2015, he received a call that he was to attend a firm of solicitors, Au Tong Tsang, on 30 November 2015.  The next day, he received another call reminding him of the appointment.

20.On 30 November 2015, as arranged by Ms Yuen the previous day, PW2 met Mr Lee at Sheung Wan Station, who took him to the offices of Au Tong Tsang to sign some documents.  An employee of Au Tong Tsang brought him into a room while Mr Lee waited outside.  The employee asked him to sign documents for a loan of $1,800,000 from Shun On Finance Limited (“Shun On”).  He did not understand what was happening and called Ms Yuen to ask why he had to borrow money from a finance company.  Ms Yuen told him that it was just a procedure for the Public Bank to be repaid in order to transfer his mortgage to OCBC Wing Hang Bank.  He believed her and signed the documents.  As he had to pay government levies of $450, he only got a cheque for $1,799,550. Mr Lee took him to the bank and asked him to cash the cheque.  He called Ms Yuen to enquire why cash was needed, and she replied that it would be quicker this way to clear his existing mortgage.  He then withdrew the sum in cash. 

21.Mr Lee then took PW2 to a firm of solicitors of Wong Ka Hing.  When he, together with Mr Lee, entered the conference room of the solicitor’s firm, a man was already inside, sitting at a table.  They waited about 10 minutes when someone called Wong (“Lawyer Wong”) entered the room.  Lawyer Wong explained the terms of the contract between PW2 and World Link, which were:

(1)  PW2 needed to hand over $1,800,000 to World Link as proof of his asset to facilitate World Link to apply a mortgage for PW2;

(2)  PW2 needed to hand over all relevant documents to World Link to apply for the mortgage;

(3)  PW2 could not mortgage his two flats to others;

(4)  It would take 90 days to do the mortgage for PW2, and if the mortgage could not be done in 90 days the $1,800,000 would be returned to him.

22.Lawyer Wong informed PW2 that a Mr Tang (“Tang”), who was seated, was from World Link and would sign for World Link.  Lawyer Wong then asked PW2 and Tang to sign the contract in triplicate, which they did.  Lawyer Wong also signed.  PW2 placed the bag containing $1,800,000 cash on the table and pushed it across to Tang and Lawyer Wong, who were on the other side of the table.  PW2 and Tang left at the same time and took the lift together downstairs.  They then separated.  PW2 estimated that the meeting at the office lasted for about 20 minutes.  He mainly focused on Lawyer Wong when he explained the contract term.  

23.Later, PW2 called Ms Yuen to tell her the money was given at Lawyer Wong’s office, and he reminded her to do the mortgage as soon as possible.

24.At an identification parade on 14 February 2017, PW2 identified D1 as Choy, and at another one on 19 April 2017, PW2 identified D2 as Tang. 

Judge’s reasoning on identification

25.As to whether D1 was “Kenny”, whom PW1 saw at World Link on 21 and 29 July 2015, the judge reasoned as follows:

“57.  On 21 July 2015, PW1 arrived at World Link.  The receptionist led him to Room E.  Inside was Kenny.  Kenny was a bit chubby, wearing glasses and about 30.  PW1 sat down at the desk opposite Kenny.  He was 3 feet away from Kenny.  This meeting lasted 30 – 45 minutes.  On 29 July 2015, inside Room E he further processed with Kenny, who was sitting across the desk from him.  This meeting lasted about 45 minutes.  He had seen Kenny on two occasions. 

58.  D1’s counsel submits in closing (para. 11) that it is difficult to be mistaken about someone’s height where the difference is 18 cm. The prosecution’s submission in closing (paras. 10 and 11) is that D1 was only standing for about 10 seconds in PW1’s presence.  Most of the time D1 was seated.  PW1 says he did not pay much attention to D1’s height.  He recalled D1’s face but was not too sure about his height.  I accept that PW1’s estimate was based on a 10-second inattentive observation.  I agree with the prosecution’s submission that the difference was not so significant in the circumstances.  PW1 could recall D1’s face in the identification parade on 14 February 2017.  He did not identify D1 based on D1’s height.  PW1 had a clear, unobstructed, close observation of D1’s face on both occasions D1 served PW1. 

59.  There is a lapse of 19 months between the meetings in July 2015 and the identification parade in February 2017.  It is possible for a witness to misidentify a person as memory fades over time.  I bear this in mind but I am satisfied that PW1 had correctly identified D1 as the ‘Kenny’ he had met.”

26.As to whether D1 was “Choy”, whom PW2 saw at World Link on 25 November 2015, the judge reasoned as follows:

“60.  On 25 November 2015 PW2 went to the office of World Link and met Choy in a room seated at about 3 feet opposite from him across the table.  He was served by Choy for about half an hour.  This was the only occasion he had seen Choy until the identification parade on 14 February 2017 in which he picked out D1 as Choy.  All participants were seated.  

61.  D1’s counsel submits in closing (para. 32) that D1 was 1.82 m tall and PW2 was 1.68 m tall.  PW2 might have seen another man, Choy, who was 1.7 m at World Link instead of D1, who was 1.82 m.  There were sufficient opportunities to observe Choy’s height.  I do not agree that PW2 had sufficient opportunities to observe the height of Choy as Choy was seated most of the time, except once leaving the room to photocopy the documents.   

62.  Counsel also submits in closing (para. 31) that in cross-examination PW2 agrees that in his witness statements, including the last one which was given after his identification parade, whilst he described D1 as of ‘medium build’, he did not describe D1 in addition as ‘a bit strong’ but he says in court that D1 was ‘a bit strong’.  It is therefore possible that D1 being ‘a bit strong’ may be a result of PW2’s subsequent observation of D1 when PW2 is in court.  I do not agree with this submission as there is no evidence that PW2 picked out D1 in the identification parade based on this additional feature.  

63.  Counsel further submits in closing (para. 34) that when PW2 met Choy at World Link, Choy was wearing glasses but in the identification parade on 14 February 2017 the participants were instructed to wear no glasses.  Therefore PW2’s identification of D1 without glasses therein is unreliable.  I do not agree with this submission.  Some people may have a very different outlook between wearing glasses and not wearing glasses whereas some others may have very similar outlook whether with or without glasses.  It differs between individual people.  There is no basis to suggest that D1’s outlook has become very different when not wearing glasses or that PW2 had to depend on D1’s glasses to identify D1.    

64.  There is a lapse of 15 months between the meeting in November 2015 and the identification parade in February 2017.  It is possible for a witness to misidentify a person as memory fades over time.  I bear this in mind but I am satisfied that PW2 had correctly identified D1 as the ‘Choy’ he had met.”

27.As to whether D2 was “Tang”, whom PW2 saw at Lawyer Wong’s office on 30 November 2015, the judge reasoned as follows:

“65.  On 30 November 2015 one Mr. Lee took him to Wong Ka Hing solicitors’ firm was.  Mr. Lee entered its conference room with him.  Already inside was a male, who looked twentyish, short and thin, sitting at the table. According to PW2’s sketch drawn in court (P14), that male sat at the table opposite from PW2, at about 4 feet away.  Mr. Lee sat at the left-hand side of the table, about 8 feet away, also opposite from PW2.  They did not have to wait long until Lawyer Wong entered the room.  Lawyer Wong remained standing throughout at the right-hand side of the table, about 6 feet away, also opposite from PW2.  Tang was between Mr. Lee and Lawyer Wong.  Lawyer Wong placed the documents on the table and explained the terms of the contract between PW2 and World Link.

66.  Lawyer Wong announced that Tang seated there was from World Link representing World Link to sign.  Then Lawyer Wong asked PW2 and Tang to sign the contract in 3 originals, which they did.  After that, Lawyer Wong also signed (P4).  Then PW2 placed the bag containing $1,800,000 cash on the table and pushed it across the table as Tang representing World Link and Lawyer Wong were on the other side of the table.  PW2 then left at the same time as Tang.  They took the same lift down and then separated.

67.  PW2 estimates that the duration from entering the office to leaving the office was 20 minutes.  He mostly looked at Lawyer Wong explaining the terms of the contract.  He did not make special effort to remember Tang’s face.   

68.  In the identification parade on 19 April 2017 PW2 identified D2 as the ‘Tang’ he had met.  

69.  D2’s counsel submits in closing (para. 8) that PW2’s identification is unreliable as follows: 

(i)  PW2 had only met the signatory of the contract [Tang] once;

(ii)  PW2 admitted that at the time of the meeting he was focusing on Lawyer Wong not on Tang and as such the actual time he would have observed Tang would be rather short;

(iii)  The meeting took place 18 months before the identification parade was held and PW2 could only say ‘I still had a bit of memory after 10 odd months’;

(iv)  PW2 took over three minutes to pick out D2 from the identification parade;

(v)  PW2 said that during the identification parade ‘He [D2] was not directly opposite me, I only saw bits of his side… and the gesture and pose he was sitting, had looks like that person’.  He went on to say ‘Also their face looks similar’;

(vi)  At the time of meeting Tang, there were others in the room. PW2 did not speak to Tang and PW2 had no particular reason to remember him;

(vii)  In cross-examination PW2 agreed that he did not have a strong impression of Tang;

(viii)  PW2 described Tang as aged around 25, but at the time D2 was aged 35;

(ix)  PW2 described Tang as having long hair, which he later explained meant covering the ears. Photographs produced show that although his hair may have been able to reach below the eyes at the front, his hair was not capable of covering his ears. It was not even suggested that D2’s hair could cover his ears and PW2 said that the man in the photographs did not have what he would describe as long hair.

(x)  In re-examination, when asked why he could be sure D2 was the signatory he could only say ‘Because I only went to identify him after one year and ‘I still had an impression.’

70.  I consider the issue of whether Tang had long hair.  PW2 says it covered his ear(s).  Defence propose to show by photos (D2 – D7) that D2’s hair did not reach his ear(s) in November and December 2015, so that Tang with hair covering the ear(s) cannot have been D2.  I have considered the photos carefully.  While Photos D2, D4, D5, D6, D7 do not show the hair length within the photos, Photo D3 was taken at around Christmas 2015, weeks after the meeting of 30 November 2015.  D2 says he used to have a haircut every month but he cannot remember if he had a haircut in November and December 2015. Therefore I do not think Photos D2 – D7 can usefully indicate how long D2’s hair was (i.e. its full length) on about the date of the meeting.  These photos do not assist the defence in this proposition.

71.  I consider the issue of whether Tang, who PW2 says looked like 25, was D2.  D2 was actually 35 years old on the date of the meeting.  I agree with prosecution counsel that D2 in court looks much younger than his age.  From the photos (D2 – D5), I can also see that D2 looked twentyish. 

72.  I consider how the number of encounter may be relevant to the quality of observation.  I think it alone is not conclusive of the quality.  The quality has to depend on the circumstances of his observation. PW2 admits that he mostly looked at Lawyer Wong explaining the contract to him and Tang.  He had not stared at Tang or made special efforts to remember Tang’s face and the impression was not strong.  I reckon that excluding the time he spent on Lawyer Wong from the 20 minutes he had from arrival to departure, he still had other opportunities observing Tang.  He observed Tang before Lawyer Wong entered, when Tang was signing the 3 sets of original contract, when he pushed the bag of money across the table, and when he left in the same lift with Tang.  They were just 4 feet apart, unobstructed in view, when seated face to face.  I give myself the warning that an honest witness is capable of making mistakes in his identification of the culprit particularly when the observation did not last very long according to the case of R v Turnbull [1977] QB 224. 

73.  In cross-examination, he agrees with D2’s counsel that he had made no special efforts to remember Tang’s face.  However, I do not think that to be able to identify a face, a witness has to make a particular effort.  I regard particular efforts rather as reconstruction, which is unreliable.  He admits, though, that at the meeting he had not stared at Tang, he had not made special efforts to remember Tang’s face, and the impression was not very strong.  But he still had an impression of Tang in the identification parade.  Among the seated participants, he saw D2’s gesture and pose of sitting, and also D2’s look, similar to Tang.  When he identified Tang he was sure it was the same person.  In re-examination he explains that he was sure he correctly identified Tang because despite the lapse of one year odd, he still had the impression of Tang. 

74.  There was a lapse of 17 months between the meeting in November 2015 and the identification parade in April 2017.  I understand a witness may misidentify a person based on memory over the course of time.              

75.  PW2 took over 3 minutes to pick out D2 from the identification parade.  The admitted facts state that it was a proper identification parade.  It necessarily means the parade comprised participants of similar appearance.  I do not find such time taken by a witness unusual to suggest anything gone wrong.             

76.  Eventually I am satisfied that PW2 had correctly identified D2 as the ‘Tang’ he had met.”

Discussion

28.The key principles when addressing identification evidence have been set out in the seminal decision of R v Turnbull [1]. In HKSAR v Cheung Ping Kwong[2], it was held that a judge alone did not have to explicitly warn himself or herself in terms of Turnbull as long as the judge showed that he or she had been mindful of the considerations to which Turnbull refers. Nonetheless, where the defence has raised matters that may be reasonably regarded as undermining the reliability of identification evidence, they must be considered when determining whether to rely on that evidence.

29.It was not in dispute at trial that PW1 and PW2 were victims of an elaborate mortgage fraud.  The sole issue was whether PW1 had correctly identified D1 as a perpetrator of the fraud in Charge 1, and whether PW2 had correctly identified D1 and D2 as perpetrators of the fraud in Charge 2.  In the circumstances, the parties addressed the judge comprehensively on the issue of identification, directing their submissions on a critical analysis of the evidence.  The very points made before the judge about the identification evidence are repeated by D1 and D2 in their challenge against their convictions.

30.Considering the importance that was placed on the issue of identification, the judge was undoubtedly mindful of the need to examine closely the circumstances in which the identification was made in each case.  He referred to Turnbull in his reasons for verdict and clearly had the principles of that case in mind when examining the evidence and the related arguments on the issue of identification. 

31.Mr Roy Lau, for D1, complains that the judge, when he referred to Turnbull only mentioned that “an honest witness is capable of making mistakes in his identification of the culprit particularly when the observations did not last very long” and did not refer to the other references in Turnbull of the “need for caution” and that “a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken”.  In his written submission, Mr Lau argues that the warning that the judge gave in accordance with Turnbull emphasised observations of short duration which did not apply in D1’s case. 

32.I consider that the judge was underlining the important statement of principle in Turnbull that an honest witness is capable of making a mistake in his identification but was clearly mindful of the other statements of principle.  His understanding of the Turnbull considerations was amply displayed by his analysis of the evidence and his comments regarding the circumstances and quality of the observations under consideration. 

33.Mr Lau also complains that the judge did not give proper regard to the weaknesses and discrepancies in the evidence of PW1 and PW2.  He essentially argues the same points he raised before the judge in his critique of the evidence of PW1 and PW2 in identifying D1 as the person that they dealt with at the relevant times.

34.It must be borne in mind that for PW1 and PW2, the refinancing of a mortgage loan on the security of their properties was an important and significant matter to them.  In the case of PW1, he visited the offices of World Link on two occasions to discuss refinancing his mortgage.  He had face-to-face meetings with Kenny in a small room that lasted 30 to 45 minutes and 45 minutes, respectively.  Kenny was mainly seated throughout these meetings.  While a long period of time had elapsed before he participated in an identification parade, he carefully picked out D1 as the person he knew as Kenny.  It is not insignificant that D1 had a connection with World Link, as he was arrested at the company’s offices.

35.PW1’s identification of D1 was challenged because he gave an incorrect description of D1’s height and given inconsistent evidence about the date of the first meeting and whether it was the female receptionist or Kenny who took him to the room on that day.  The judge addressed the issue about D1’s height.  He accepted that PW1 had not paid particular attention of the height of D1, and in any event it was not the basis on which he identified D1.  The other matters featured in Mr Lau’s written closing submission to the judge but they were of minor consequence.  The judge obviously had taken these matters into account but was satisfied, having had the benefit of seeing and hearing PW1 testify, that PW1 had correctly identified D1.

36.In the case of PW2, he attended the office of World Link and was taken to a room by a female receptionist, where a person who identified himself as Choy, was seated.  PW2 provided Choy with the relevant documents for a mortgage loan, who in turn discussed the terms and conditions of the mortgage loan application in detail.  The meeting lasted about half an hour. Several days later, PW2 was asked to attend a solicitor’s office to sign documents.  He was taken to a room where a person who identified himself as Tang was seated.  Tang was the representative of World Link and was present to sign the relevant documents on the company’s behalf.  The meeting lasted about 20 minutes, after which PW2 and Tang left the solicitor’s office together.  PW2 picked out D1 in an identification parade as the person who identified himself as Choy. PW2’s identification of D1 was challenged because of discrepancies between D1 and Choy as to their height and build, and the conduct of the identification parade.  PW2 testified that Choy was wearing glasses at the time, but the identification parade was conducted with the participants not wearing glasses.  These matters were raised before the judge, who addressed them in his reasons for verdict.

37.Applying the Turnbull considerations, the judge was clearly mindful of the circumstances and criticisms of the identification evidence but was satisfied that PW1 and PW2 had correctly identified D1.  I do not consider these grounds to be reasonably arguable.

38.PW2 also picked out D2 in an identification parade as the person who identified himself as Tang, as a representative of World Link at the solicitor’s office.  There was evidence that D2 had a connection with World Link.  He acknowledged he had been interviewed for a job at World Link, but a pay slip in his name and with his Hong Kong Identity Card number (exhibit P17) was found at World Link.

39.All the points raised now in relation to the challenge of PW2’s identification of D2 were raised before the judge.  He clearly had them in mind and addressed the more salient points in his reasons for verdict, such as the opportunity and duration for PW2 to observe Tang, the discrepancy in PW2’s description of the build and hair length between Tang and D2, and PW2’s additional reliance on gesture and pose as a basis for identification.

40.The judge is criticised for dismissing the comment by PW2 that D2 was covered by a robe when he picked him out in the identification parade and rejecting the defence photographs, depicting D2 with short hair.  As for the robe, it appears that the participants in the identification parade were covered by a blanket.  As for the photographs, they did not show D2’s actual hair length and D2 was unable to remember if he had a haircut in November and December 2015.  These are matters that the judge took into account and was nevertheless satisfied that PW2, in the circumstances, correctly identified D2.

41.In both cases, this was not a fleeting glance by PW1 or PW2 but a very important moment in their lives where they had face-to-face dealings with D1 and D2 of significant duration.

42.I do not find the grounds of appeal advanced by D2 to be reasonably arguable.

43.It follows from what I have said that I refuse leave to D1 and D2 to appeal against their convictions.

44.It remains for me to inform D1 and D2 that they have the right to renew their applications for leave to appeal against conviction to the Court of Appeal, but they are also informed that the Court has the power to order the loss of any time which they have served pending the hearing of the appeal, if the Court were to come to the view that there was no justification for the renewal of their respective applications.

Ms Denise Chan, SADPP, of Department of Justice, for the respondent

Mr Roy Lau, instructed by Francis Kong & Co, for the 1^st applicant

Mr Joseph Tse, SC and Mr Fergus Chan, instructed by Li & Partners, for the 2^nd applicant