The Queen v. Lau Wai and Another

CACC001016/1982

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 1016 of 1982

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Between

Coram: Hon. McMullin, V.-P., Silke J.A. & Penlington J.

Date: 3rd February, 1983

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JUDGMENT

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Penlington, J.

1. This is an appeal by two appellants. The first, LAU Wai, only faced one charge, that of robbery on the 29th of December 1981 at the Chow Sang Sang Jewellery Company in Wuhu Street. The evidence against him, and indeed against the 2nd appellant on this charge, was identification by a staff member of the jewellery company together with evidence given by the 4th and 5th defendants at the trial who pleaded guilty, were sentenced, and then gave evidence for the Crown. There was also evidence consisting of photographs taken by a surveillance camera. These photographs showed the person, who is the Crown's case was the 1st appellant, with a mask on but nevertheless the person can be seen through the mask and he bears an undoubtedly striking similar appearance to the appellant.

2. The jury were given a very careful and full warning by the trial judge as the dangers involved in accepting the evidence of the two accomplices and there is nothing whatever that we can see wrong in that direction. He also gave a direction in relation to the evidence of identification by the shop assistant, Mr. Mok, and he told the jury in no uncertain terms that they should approach that evidence with caution because Mr. Mok said that he saw the appellant LAU Wai only for an extremely short time before he put on the mask.. It may be that perhaps he could have gone further in telling the jury the reasons why they should exercise caution in accepting that evidence but we are satisfied that he told them the most important thing and that was they should pay attention to the short period of time during which Mr. Mok said he saw the appellant. Furthermore, this was not a case where the Crown was relying wholly or substantially on the identification evidence of Mr. Mok. It was supported by other cogent evidence. Having considered the evidence and the Judge's summing-up were quite satisfied that the jury were entitled on the evidence before them to convict the appellant and the application for leave to appeal is refused.

3. The 2nd appellant faced three counts of robbery. The first one was together with the 1st appellant. His grounds of appeal are similar in that he seeks to challenge the identification by Mr. Mok and he points out that there was a conflict in the evidence of the two accomplices.The evidence of the accomplice who was the 5th defendant, that is MAK Fu, was that he and the 3rd accused SZETO Hong met in a restaurant in November at a time when the 3rd accused was in fact in prison. All these matters were very carefully in fully put to the jury by the trial judge. Essentially it was a matter for them to consider and we cannot say that the jury were not entitled to come to the conclusions they did. The only evidence on the other charges against the 2nd appellant was finger prints and hand prints found in the jewellery shops concerned. The appellant says that in respect of one of those he was in fact at the Immigration Department on that day but he does not have any explanation as to how his finger prints were found there. He did not give evidence at the trial in support of the purposed alibi. As regards the fourth charge, agains in respect of the Chow Sang Sang Goldsmith Shop, he said that he sometimes went to that shop during his work hours to look at the gold ornaments. Again he did not give that evidence at his trial.

4. In both cases there was evidence that the places where the prints were found had been cleaned shortly before the robbery. While perhaps the evidence in respect of these two counts was not as strong as in respect of the first, they were again essentially matters for the jury to consider. They were clearly directed on the evidence and told it was a matter for them. In both cases the jury have decided that it was sufficient and again we see no reason to interfere. The application of the 2nd appellant for leave to appeal will also be dismissed.

5. I would like to add for my own part anyway that the photographs that have been produced are clear and obviously were of the very greatest assistance to the police in their enquiries and to the prosecution at the trial. It is a great pity that other jewellery shops and similar institutions are not prepared to go to the expense of providing similar equipment and the owners of the Chow Sang Sang Jewellery Company are to be commended for installing that equipment.

Representation:

Colin White C.C. for Respondent

Appellants in person