R. v. Fong Kwok Yung

CACC000030/1997

IN THE COURT OF APPEAL

1997, No. 30
(Criminal)

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Coram: Hon Power, Ag C.J., Nazareth, V.-P. and Liu, J.A.

Date of hearing: 15 May 1997

Date of judgment: 15 May 1997

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J U D G M E N T

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Liu, J.A.:

1. The applicant faced two charges before His Honour Judge Muttrie in the District Court. He was convicted of robbery and also of remaining unlawfully in Hong Kong without proper authority. He was sentenced to 3 1/2 years for robbery and 15 months for remaining unlawfully in Hong Kong. The sentence in his second charge was ordered to run after the applicant shall have served 3 years of his 3 1/2 years robbery sentence. In total, he has to serve, therefore, 4 years and 3 months. He feels aggrieved by the convictions as he does by the sentences. He seeks leave to appeal against conviction and sentence today.

2. He is 22/23 years old, a man of previously good character before the alleged robbery offence. He was charged that on 3 July 1996 at the cycling track near Subway No. NS 116, Cheung Shu Tan, Tolo Highway, Tai Po, he robbed Li Yim, the victim, of $360 cash and one watch. He was also charged with remaining in Hong Kong without authority, having landed unlawfully here. He stood trial and was duly convicted. The sentences were accordingly passed on him.

3. It was on 3 July 1996, at about 1 o'clock in the morning, that the victim was robbed by a group of 3 men at that cycling track. The group knocked the victim off his bicycle and assaulted him. One of the robbers was heard speaking Putonghua. In that language, he demanded money. The victim replied, also in Putonghua, that he had some cash. In Putonghua again, another robber told the victim that they would stop the beating upon cash being produced. The victim handed over $360 in three $100 notes and three $20 notes. The victim also handed over his watch. With the cash and the watch, the robbers fled. Shortly after at about 2.58 am in the morning, in the same area, 3 men were found by the police. The applicant was one in the group. Another member of the group had in his possession the watch which was subsequently identified by the victim to be his property, the one that had been taken from him in the robbery committed upon him earlier that morning. The group, including the applicant, was thereupon arrested.

4. On the day following the robbery, an identification parade was staged, at which the applicant was identified by the victim as one of the robbers. The applicant in his "Reasons of Appeal" complained of the poor identification evidence. He maintained that the victim's credibility had been demolished. In particular, to-day he draws our attention to the utmost difficulty in making any or any reliable observation in the commotion of a robbery as the victim described. In relying on such unsatisfactory identification evidence of the victim who is also said to have been shown to be lacking in veracity, the judge, so the applicant submits, must have been biased. He stated in his "Reasons of Appeal" that nothing was found on him to link him to the robbery in the case. This aspect is repeated with emphasis today. The applicant further implores this court not to overlook the circumstances in which the victim was said to have been robbed. Those circumstances, so the applicant maintains, could hardly be conducive to a satisfactory identification attempted by the victim. The victim testified that all of a sudden a group ambushed and set upon him, they chased him, grabbed him, pulled him away from his bicycle, pressed him down on the ground and asked him for money. At the same time, the victim was assaulted. Out of his coat pocket, cash was snatched from the victim. How is it possible, he asks, that a reliable identification could have been made by the victim? Although the Reasons for Verdict in no way reflects this, the applicant is under the impression that he judge was unsure of the identification evidence. On these complaints, he seeks leave to appeal against conviction.

5. The identification evidence of the victim was by no means perfect. The judge was obviously alive to it. The victim told the court that the robbery took about 4 minutes but that he had an opportunity to make face-to-face observation for about a minute. He described the features of and the clothing worn by one of the robbers. The one he subsequently picked out at the identification parade was the applicant. He no longer recalled who actually demanded in Putonghua for money and he was not sure which robber spoke to him and which robber took his watch and money. The victim even conceded that not only did he not see the applicant for a full minute, but he did not have a good view of the robbers at the beginning of the attack. Counsel for the applicant urged upon the judge that the victim merely identified the applicant by the way he was dressed. The victim denied that suggestion. The judge relied on the features given by the victim in his police statement. The robbery was committed in street lights. It took a short time. The victim's opportunity to observe robbers was brief. And the judge said this:

"I would not describe the victim's view of any one of the robbers as a mere fleeting glance, but it approaches that description."

6. The judge gave himself ample warning of the usual dangers of convicting on identification evidence. The judge listed out in his Reasons for Verdict matters over which he had to exercise care. The judge was impressed by the identification parade held immediately the following day, in which a positive identification was made. The judge found the victim a truthful witness, determined to tell what he could recall. The judge had also kept clearly in mind that one of his tasks was to consider whether or not the victim was accurate. The judge also acted on the victim's assurance in his re-examination that he had time enough to see the faces of all the robbers. The judge derived considerable comfort from the surrounding circumstances: the victim was found shortly after the robbery in a group of 3, not very far away from the scene. The applicant is a Putonghua speaker. One member of the group found by the police was in possession of the watch taken from the victim in the earlier robbery. The features of the applicant were described in the victim's statement to the police. The victim identified the applicant at an identification parade held the next day. The judge found it safe to accept his identification evidence. Finally, the judge was satisfied beyond reasonable doubt that the identification evidence given by the victim was accurate and that the applicant was one of the 3 robbers who set upon, attacked and robbed him.

7. There was no dispute that the applicant had no authority to land or to remain in Hong Kong. He was duly convicted and found guilty as charged.

8. We have considered the applicant's "Reasons of Appeal" as supplemented by his further submissions made to us today. We can find no substance in any of his complaints. The judge's Reasons for Verdict can, in no way, be faulted. We dismiss this application for leave to appeal against conviction.

9. As to sentences, for a robbery offence such as that in the charge, the judge took the view that a proper starting point ought to be 4 years. We do not find the starting point the judge had in mind wrong. The judge went on to consider the sentences passed on the co-defendant who entered a plea of guilty. In the judge's computation, the starting point for the other defendant would have been 3 1/2 years. In order to avoid disparity, having taken into consideration the clear record of the applicant, the judge sentenced him to 3 1/2 years' imprisonment. We also find the 15 months' sentence for unlawfully remaining in Hong Kong appropriate. The judge then considered the totality of the two sentences if they were to be served one after the other. In an attempt to keep the total length of imprisonment as fair as possible to the applicant, the judge ordered part of the robbery sentence to run consecutively with the 15 months' sentence for unlawfully remaining in Hong Kong. The net result was that the sentence the applicant was to serve was 4 years' and 3 months.

10. Individually and in the judge's computation, the sentences passed on the applicant cannot be said to be either wrong in principle or otherwise manifestly excessive. The applicant's application for leave to appeal against sentence is likewise to be dismissed.

Representation:

Mr F A Veltro of Crown Prosecutor for the respondent

FONG Kwok-yung, applicant in person