HKSAR v. Zhang Liming

CACC 130/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 130 OF 2005

(ON APPEAL FROM DCCC NO. 1 of 2005)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Bokhary and Tong JJ

Date of Hearing: 8 November 2005

Date of Judgment: 8 November 2005

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.Reasons for Verdict, convicting the applicant of robbery, were given on 7 March 2005 following a one-day trial in the District Court on 4 March 2005 before Judge Chua.  The applicant was sentenced to 7 years’ imprisonment and he now seeks leave to appeal against conviction.

2.The offence was committed on 12 October 2004 inside the victim’s residence at about 3:15 a.m.  The victim woke up to find two intruders in his bedroom wearing surgical masks and gloves.  One of them was holding a knife with a blade length measuring about 8 inches.  The victim, a doctor of medicine, was attacked after he began to shout out.  When he found that he was bleeding from a neck wound, he told the men he would give them money.  He led them to the sitting room and took $1,500 from his wallet.  Later, he found that his Rolex watch worth $20,000 had been stolen.

3.The victim was treated soon after his ordeal for a laceration to the neck measuring 2.5 centimetres, a haemorrhage of the right eye and bruising to the head.  He was not discharged from hospital until 16 October 2004.

4.On 13 October 2004, acting on information, the applicant and another man alleged to have been his accomplice (Liu) were arrested at different times during the evening at the Jade Guest-house in Nathan Road.  On his arrest, the applicant was found to have $5,080 in his possession.

5.Forensic evidence arising from a shoe mark as well as the victim’s DNA on Liu’s pullover closely connected Liu to the crime scene.  There was no such evidence against the applicant.  However, Liu pleaded guilty at trial and gave evidence against the applicant.  According to him, he was motivated to do so because the applicant had sold the stolen Rolex watch and had not given him (Liu) a share of the money.

6.The applicant’s version was that he had come from the Mainland with $10,000 for the specific purpose of gambling and had been so engaged at the material time at an off-course betting centre.  Afterwards, he had been in the company of gamblers in Victoria Park.  Eventually, he fell asleep and was awoken at about 5:00 a.m. by park guards. 

7.In her assessment of the evidence, where Liu and the applicant are referred to as D1 and D2 respectively, the judge said:

“16.  It is true there were many details D1 revealed from the witness box which he did not tell the police when he gave his non-prejudicial statement; such details as having gone into a supermarket before they committed robbery and the fact that D2 had washed his clothes in the sea.

17.    Confronted with these discrepancies, he said some details he had not thought of giving because his mind had not been directed to them by questions, and other details, because he thought without the DNA result he hoped not to have to plead.  His entire testimony had that ring of truth and I am satisfied it was all true.

18.    I disbelieved D2.  I am sure it was he who had made the suggestion of the robbery.  I am sure he was the one who held the knife to Dr Chau’s neck.  I am satisfied the $5,080 found on him was part of the proceeds from his selling Dr Chau’s Rolex watch.” (Appeal bundle p. 13)

8.The applicant, in homemade grounds of appeal, reiterated his complaint at trial that he had been framed by Liu and stated that this had arisen because of a longstanding dispute between them over money.  The applicant pointed out that Liu’s testimony was effectively the only evidence against him and that, because Liu could not escape conviction in view of how closely he was linked to the offence, Liu was trying to earn himself a lenient sentence by becoming a prosecution witness.

9.Whilst Mr Robert K Y Lee addressed the grounds raised by the applicant when this matter first came before the court (differently constituted) on 9 August 2005, he had apparently not noticed until his attention was drawn to it that the “Admitted Facts” to which the judge referred in her Reasons for Verdict did not seem to accord with the evidence called against the applicant at trial.  Plainly, if the judge had been labouring under a false impression about what had been agreed, this may, depending on the materiality of that evidence, have had a considerable bearing on the outcome of the trial.  This application was then adjourned for the respondent to make further enquiries into the precise nature of the evidence called at trial.

10.The outcome of this adjournment is that it has emerged that the judge took into account facts against the applicant which had never been admitted by him.  In the Reasons for Verdict, after a very brief summary of the facts which described the manner in which the offence was committed, the judge (again referring to Liu and the applicant as D1 and D2 respectively) continued by saying:

“3. At all material times D1 and D2 were in Hong Kong visiting on two-way permits.  They had rented rooms in Jade Villa Guest-house in Jordan.

4. In the afternoon of 12 October 2004 D1 and another male were in a room occupied by another Mainlander, Peng Zhongda.  Peng overheard a conversation between D1 and his companion regarding a robbery they had just committed, from which they got over $1,000 and a watch.  Peng also saw the other male had a Rolex watch.  The next morning Peng read a newspaper article regarding Dr Chau’s robbery.  He notified the police, which led to the arrest of D1 and D2.  Peng identified them in an identity parade.

5. Police forensic investigation reveals that a shoe mark found on Dr Chau’s slipper next to his bed matched that of the shoes seized form D1.  Furthermore, three drops of blood on D1’s pullover had DNA profile which matched Dr Chau’s.

6. D1 had $270 on him when arrested; D2, $5,080.

7. These facts have been formally admitted by D2 pursuant to section 6[5]C of the Criminal Procedure Ordinance.” (Appeal bundle pp. 10-11) (Emphasis added)

11.The 4^th paragraph in the passage cited above had particular relevance to the applicant but no such facts, as we have already indicated, had been agreed on the applicant’s behalf.  In essence, that paragraph amounted to an admission that Peng Zhongda (who did not give evidence at trial) had overheard the applicant (D2) talking with Liu (D1) about the robbery.

12.The applicant’s observation in his grounds of appeal that the testimony given by Liu stood more or less alone seemed, in the light of what the judge believed to be the admitted evidence, a somewhat optimistic description.  However, as Mr Lee now concedes, the applicant was right in his appraisal.  Liu’s evidence had effectively stood alone.  It has now been confirmed that the Admitted Facts in the applicant’s trial concerning the Jade Guest-house only went as far as stating:

“8.   Mr Peng Zhongda and Mr Zheng Changjia were two mainlanders visiting Hong Kong on the strength of their two-way permits.  They stayed in another room of the aforesaid Jade Guest-house at the material times.  They both attended formal identification parades held on 15^th October, 2004 in which they made positive identification of D2 to be the person they saw in the aforesaid Jade Guest-house.”  (Appeal bundle p. 9)

13.It is abundantly plain where the judge’s confusion lay.  What she believed to be the Admitted Facts in the applicant’s trial were contained in a document (Exhibit P.1) entitled “Summary of Facts (For D1 only)” prepared by the prosecution for use in Liu’s case when he pleaded guilty.  The document continued with the words:

“The following facts are admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong between the prosecution and D1.”

It follows, therefore, that exhibit P.1 was clearly inadmissible against the applicant in whose case an entirely separate set of Admitted Facts was used, including the passage to which we have referred (at paragraph 12 above).

14.The judge’s mistake, giving rise to a belief on her part that the applicant had been identified by Peng as one of the two men who had discussed the commission of what, in the context, can only have been the robbery with which we are now concerned, was obviously fundamental.  We were, therefore, somewhat surprised that Mr Lee, whilst rightly conceding that this could be described as a material irregularity at trial, went on to suggest in his latest written submission that as the judge had never repeated the mistake (in the 3½ pages of her Reasons for Verdict) and had not used the offending passages relating to Peng’s account either to support Liu’s testimony or to doubt the applicant’s account, this was an appropriate case for the application of the proviso.  We strongly disagree and we have no doubt that to take such a course would be wholly inappropriate.

15.Accordingly, we shall grant leave.  Treating the hearing as the appeal, we allow the appeal and quash the conviction together with the sentence imposed in respect of it.

16.We have also canvassed the issue of a re-trial.  This could only be ordered if it is known that Liu is prepared to give evidence a second time.  The respondent has been on notice since 9 August 2005 when this matter was last before the court as to the point which would be raised and Mr Lee’s further written submission acknowledging the judge’s error was received about a fortnight ago.  He informs us that Liu is prepared to testify again.

17.In these circumstances, we will order a re-trial pending which the applicant will remain in custody.

18.We propose to make an order that the re-trial on a fresh charge sheet in the District Court should commence within 3 months subject to any unforeseen and unavoidable circumstances.

Mr Robert K Y Lee, SGC, of the Department of Justice, for the Respondent.

The Applicant, in person.