HKSAR v. Lee Kin Ming

HCMA000819/2002

HCMA819/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.819 OF 2002

(ON APPEAL FROM TMCC 1602 OF 2001)

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Coram: Deputy High Court Judge Line in Court

Date of Hearing: 24 December 2002

Date of Judgment: 24 December 2002

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J U D G M E N T

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1.This is an appeal against conviction for robbery. The appeal against sentence has been today abandoned. It has not been disputed that PW1, a 16 year-old boy, was robbed by two men in a public changing room in Tuen Mun Town Plaza, and it was not disputed that one of those two men had long gold hair. He took the victim's mobile telephone from his pocket whilst the other man held the victim round the neck. The two had set upon him from behind whilst he stood facing a mirror. There was a struggle. The victim managed to get himself outside the changing room before these robbers. The golden haired man emerged, the victim tried to detain him by grabbing his jacket. This culprit divested himself of it and was able to make an escape.

2.That escape was successful as, according to the victim, the second man had emerged at almost the same time as the golden haired one and had blocked his way so as to allow golden hair to escape. The victim grabbed the second man and a struggle ensued. A security guard intervened and detained the man. It was this appellant.

3.The victim conceded that he did not see the face of the second man in the robbery. He noted his short hair and black upper garment. Whilst it was not actually spelt out in the recitation of facts in the Statement of Findings, it was an obvious inference that the victim had the opportunity to take in the sex and size of the second person. The victim described the changing room as being empty. He did so because he said it was silent in there before the two men came in. He did not search the lavatory cubicles in there, and Mr Pang in his argument relies upon the possible presence of a silent occupant, or perhaps to be more fair, an unobtrusive occupant.

4.The appellant gave evidence. He placed himself in one of lavatory cubicles at the time when this offence occurred. He said that he heard the word "shut up" and the sounds of a struggle which went on for one or two minutes. He then heard the changing room door open. He emerged from his cubicle to see the golden haired male, who punched him on his chest and said "don't be so nosy" before leaving. He washed his hands and then went out to find the golden haired male struggling outside the changing room with PW1. He said he watched the struggle until it finished, whereupon he was falsely accused and set upon despite his denial.

5.Issues of credibility thus arose. The Magistrate determined them in favour of the victim. He did not believe the appellant. He gave sensible and realistic reasons for doing so based on the evidence. Mr Pang today does not seek to argue against those findings and limits his submissions to reliability and mistake by PW1. On the material before me I share the view the Magistrate formed about credibility.

6.Other than saying that the conviction was unsafe and unsatisfactory the sole ground of appeal was that the Magistrate failed to direct himself in accordance with the principles set out in the case of R. v. Turnbull. The idea that Mr Mitchell, the Magistrate, with his experience of the criminal courts, was unaware of Turnbull or forgot it on this occasion is one that is hard to credit. Putting that aside, the fact is that his Statement of Findings does demonstrate a proper knowledge and application of the principles in Turnbull as they touch on a case like the present one. He speaks of the victim not being able to see the face of the second man and talks of honest witnesses being mistaken. There is a world of difference between the application of principles by a busy and experienced magistrate to facts and the directions judges give to juries.

7.Putting that aside and assuming that Mr Mitchell did not display a grasp of the Turnbull considerations, or that he did not apply them properly, the conviction did not substantially rest on identification by the victim of the features of the second man who robbed, beyond matters readily to be taken in and retained in the mind for a matter of minutes.

8.If PW1 had said he identified the second man as the robber by looking at his face, then the Turnbull considerations would call for greater prominence. But that is not the case. The case and the conviction rest on inference from presence and activity.

9.If the appellant is right, then into the silent changing room came "golden hair" and a male who was of the same general appearance as the appellant wearing a similar top with a similar haircut. This person helped "golden hair" in the robbery and then was seen no more. There is no suggestion or evidence that he left before "golden hair". The appellant's story had the changing room door opening once and that must have been for the victim to get out. The victim, whom the magistrate found to be credible, said that "golden hair" was the first one out of the changing room. The idea that the second robber remained in the changing room unseen by the appellant or unheard by him and did so whilst the security guard and the police officer attended the scene verges on the fanciful. Where did the second robber go if he was not the appellant? As the magistrate said there was no room for mistake by the victim as to there being two robbers, and Mr Pang does not urge such before me today, yet on the account of the appellant there appears to be only one robber.

10.Continuing to look at the appellant's tale, he said he came out and just watched the struggle. The victim described him as helping "golden hair" make his escape. As I said the magistrate for good reason determined the victim to be credible. There is a world of difference between someone who is at a distance spectating and someone who aids another to escape. If you put that piece of evidence together with the stunning coincidence of similar men in black tops entering and exiting lavatory cubicles at the same time in the same place in a way that catapults the innocent appellant into the center of these events and spirited away the guilty second robber, then it is no surprise that the magistrate drew the inference of guilt. I draw that inference now on the material before me and I do so without needing to ponder Turnbull save in the broadest terms of the opportunity to take in the general appearance of the second robber. Accordingly I confirm the order of the magistrate convicting the appellant.

11.I should add that it was essential to the respondent's case that the victim left the changing room before his robbers. The police officer who attended the scene said that the victim told him that he "chased after" the robbers. The magistrate resolved this issue by saying in fact "chasing after" was what the victim was doing in seeking to stop the robbers getting away. He pointed out that the word "followed" had not been used. Nothing persuades me that such a resolution was wrong or in error. It was made in the context of a finding that this was a witness who was honestly doing his best to recollect and tell the truth.

12.I also infer this from the material before me that these words were not dictated to the policeman at the scene. He would have written them down sometime later. It was an unusual feature of this case that the victim got in front of his robbers. If that had not been explained in detail in this conversation at the scene, I can quite see how the policeman might have presumed, without the exact words being used, that it was a normal chase with the robbers in front, and how that might have had an effect on the way he recorded the conversation later, doubtless in his notebook.

13.Finally, let me just say thank you to Mr Pang for his careful submissions. The appellant is lucky to have had the benefit of them, especially as I note from the papers that he is assigned by the Bar Free Legal Service Scheme. Lawyers are often not regarded as the most public spirited people. This case refreshingly shows the contrary.

Representation:

Miss Ho Man Yu Lily, SGC of Department of Justice, for HKSAR

Mr Robert Pang, Counsel from Hong Kong Bar Association's Free Legal Service Scheme for the Appellant