HKSAR v. Tong Wing Ho

CACC000242/2002

CACC 242/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 242 OF 2002

(ON APPEAL FROM DCCC 315 OF 2002)

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Coram: Hon Mayo VP, Hon Cheung JA and Hon Yeung JA in Court

Date of Hearing: 17 September 2002

Date of Judgment: 17 September 2002

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J U D G M E N T

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Cheung JA: (giving the judgment of the court)

The application

1.The applicant was charged with two offences in the District Court, namely robbery and remaining in Hong Kong without the legal authority of the Director of Immigration after having landed unlawfully in Hong Kong. He pleaded not guilty to the first charge but pleaded guilty to the second charge. He was convicted after trial by Deputy District Judge A. Chan of the first charge. The applicant now applies for leave to appeal against the conviction.

Facts

2.The facts revealed that PW2 and PW3 were husband and wife. On 9 February 2002 they were hiking in the Lion Rock Country Park at about 3 p.m. when they were stopped and robbed by the applicant. The applicant held a knife on PW3's neck and demanded money. PW2 handed $20 to the applicant. In addition, the applicant took a mobile phone and a watch from PW2. PW2 and PW3 reported the matter to the police almost immediately after the robbery. 12 days later, on 21 February 2002, the applicant was identified by PW2 in an identification parade. However, PW3 did not identify the applicant.

3.The applicant was arrested earlier by the police on 17 February 2002. The police saw five persons, one of whom was the applicant on a hillside in Shatin. Three of these persons fled to the hillside upon noticing the police. The applicant and another male were arrested.

The applicant's case

4.The applicant denied that he had committed the robbery. He said he was not in Hong Kong at the time of the robbery. He only arrived in Hong Kong illegally on 16 February 2002. After arriving in Hong Kong, he walked to Taipo where he boarded a public light bus. At about dawn, he got off the public light bus by a hillside. He had no idea where he was. He then wandered around and subsequently in the afternoon of 17 February 2002 he was arrested.

Identification

5.The learned judge clearly recognized the importance of assessing the identification evidence by PW2 in accordance with the guideline laid down in R. v. Turnbull [1977] Q.B. 224. He clearly recognized the special need for caution before convicting the applicant. The robbery was committed during daytime. The robbery lasted for about three minutes. PW2 was facing the applicant. He had a good look at him at a distance of only two to three feet. His vision was not impeded in anyway. It was not a fleeting glance situation.

6.Although PW2 had not seen the applicant before, he had no difficulty in identifying the applicant in the identification parade. The learned judge accepted the evidence of PW2 and found that there was a correct identification by PW2.

The complaint

7.The applicant claimed that when the PW2 gave evidence, his description of the robber was totally different. He maintained his innocence. He was not in Hong Kong and the judge believed only the evidence of the prosecution and not him. The judge had also not clarified the doubts in the case.

Decision correct

8.In our view, the decision was one based on a finding of fact. The learned judge had clearly recognized the special need for caution in identification cases. His acceptance of the evidence of PW2 and PW3 and rejection of the evidence of the applicant was clearly correct. He did not accept the evidence of the applicant who claimed to have come to Hong Kong only after the robbery and in order to seek employment. The learned judge was of the view that the chance of seeking employment on a hillside was virtually nil. He found that it was unbelievable that shortly after the applicant's arrival on the hillside in Shatin, he would be in the company of four complete strangers.

Application dismissed

9.In our view, the decision was correct and accordingly the application is dismissed.

Representation:

Mr. David Leung, SGC of Department of Justice for the respondent

The applicant, in person, present