R. v. Chan Kam Wah

CACC000343/1995

IN THE COURT OF APPEAL

1995, No. 343

(Criminal)

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Coram: Hon Power, V-P, Mayo, JA and Keith, J.

Date of hearing: 7 November 1995

Date of judgment: 7 November 1995

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J U D G M E N T

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Mayo JA, giving the judgment of the Court:

1. The applicant seeks leave to appeal against his conviction for being in possession of another person's identity card without lawful authority or reasonable excuse.

2. At the time of the offence he was a serving police officer.

3. He was also charged with a lift robbery. In the course of detailed reasons for verdict His Honour Judge McMahon acquitted the applicant of the robbery charge and convicted him on the identity card charge.

4. On the facts of the case the victim of the robbery was walking in the street at Cheung Sha Wan with her son PW3 when she told him that a man she had seen was the man who had robbed her in the lift some days previously.

5. It has to be said that the victim of the robbery did not report the robbery to the police. Indeed it would appear that she would have preferred not to take matters further. However her son, who was a witness at the trial, did take matters further.

6. PW3 told his brothers and sister what he had been told by their mother and a report was made to the police. PW3 and his brothers and sister went back to the area and looked for the man. After some time PW3 saw him. He managed to alert some police officers to the situation and one of the officers approached the man who was the applicant, and told him he had been identified as taking part in a lift robbery.

7. The applicant correctly informed the officers that he was a police officer attached to the Tuen Mun Police Station.

8. He was told to wait while inquiries were being made. The applicant then jumped up and ran away. He was pursued by the police officers and eventually caught and subdued.

9. A search was made on him and the identity card which was the subject of the second charge and of this appeal was found in his wallet. This search was undertaken at the police station.

10. After this he made cautioned statements.

11. In effect he denied the robbery and claimed that he had seen the identity card that morning on the pavement near a bus stop. He had picked it up and it had been his intention to post it into a pillar box when he saw one.

12. District Judge McMahon was not satisfied at the appropriate level that the victim's identification was reliable. He accordingly acquitted the applicant of the robbery charge.

13. There was no dispute that the identity card had been in the possession of the applicant. The only issue was whether the applicant had a reasonable excuse for his possession of the identify card.

14. The holder of the identity card gave evidence that he lost his identity card in October 1989. The day when the applicant was arrested was 8 February 1994.

15. One of the matters which was weighed by McMahon DJ in his reasons for verdict was the fact that the applicant had attempted to escape shortly after he had been stopped by the police.

16. Mr Oderberg for the applicant submitted that the judge had been wrong to infer that it was because of a consciousness of guilt over the identity card that the applicant had run away as this was not the only inference which could be drawn from his flight.

17. He complained that it was wrong to treat the applicant who was a police officer in any different manner to any other member of the public.

18. It is artificial to attempt to break down all of the evidence into individual parts. The judge had to consider the matter as a whole.

19. The applicant's flight was only one of the matters weighed by the judge. He also bore in mind the explanation given by the applicant for his possession of the identity card, the fact that it had been missing for such a considerable period of time, and the unlikelihood of the applicant finding the card on the very day that a member of the public accused him of robbing her.

20. The fact that he was a police officer does not really take matters further. He said in his cautioned statement that the explanation for his flight was his possession of the identity card. It was certainly open to the judge to accept parts of the statement and reject other parts. The circumstances of The Queen v. Chan Kwok Cheung and Another [1990] 1 HKLR 359 were entirely different to the present case. Here there was a close nexus to the offence. We consider that there was sufficient evidence before the learned judge to enable him to be satisfied at the appropriate level of the applicant's guilt. The verdict is neither unsafe nor unsatisfactory and the application is dismissed.

Representation:

Mr John Reading SACP for Crown Prosecutor

Mr Oderberg (Kitty So & Tong) for Applicant