HKSAR v. Kwok Kin Ming

CACC000513/2002

CACC 513/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 513 OF 2002

(ON APPEAL FROM HCCC 368 of 2001)

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Coram: Hon Stock JA, Yeung JA and Jackson J in Court

Date of Hearing: 2 April 2003

Date of Judgment: 2 April 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1This applicant seeks leave to appeal against conviction. He was tried before Deputy Judge Day and a jury and on 12 September 2002 he was convicted unanimously on each of four counts of an indictment which contained five counts. The only count of which he was acquitted was count 3: a count of attempted robbery.

2The first count alleged a robbery on 16 June 2001 of a lady named Yung Suk-yin. She had joined a club for making contact with others, and through this she met a man that evening at the Kwun Tong MTR Station. When they had first made contact the caller display on her telephone showed the number 2727-0296. The man she met said that he was taking her to his motor vehicle, but he led her to various places and they eventually arrived at a podium where he attacked her, and in the course of the attack he pointed a sharp triangular object at her neck and told her that he was robbing her. She struggled, and he snatched her telephone and fled. There was an identification parade on 9 July 2001 at which she identified the applicant as her assailant. The point about the telephone number which she had noted is that it was the same telephone number as that given by the applicant to the police on his arrest as his own telephone number.

3The second alleged robbery was of a taxi driver. Two men robbed him, one a rotund person whom the driver described to the police and whom the driver identified at a parade on 9 July as the applicant. He did not then mention to the police; as he did in evidence, that the assailant wore spectacles.

4On 29 June a Mr Wong, a caretaker at Tin Man Court in Tze Wan Shan, was attacked when he re-entered his rest room at that estate. His attacker tried to pull him into the room and then stabbed him in the stomach with a knife, and when Mr Wong called for help the attacker fled. There was a magazine in the rest room which Mr Wong could say had been moved since he had last been there; and the importance of this is that the applicant's thumbprint was found on the magazine. The applicant's evidence was that he had read the magazine at home in Kwun Tong and had thrown it away, so it must somehow have found its way to the rest room. Mr Wong did not identify the applicant at a parade, and had said that his attacker did not wear spectacles. He also said that his attacker had a mole on his face, and it is a fact that this applicant has a mole on his face. These events were the subject of the third count (attempted robbery of which the applicant was acquitted, no doubt because the jury was not sure what precise crime was contemplated by the attack), and the fourth, a count of wounding with intent to cause grievous bodily harm.

5The fifth count was another allegation of robbery; a taxi robbery on 3 July 2001. There was a struggle during the course of which the assailant punched the driver on his nose causing it to bleed. The driver's nose was also attacked with a ball pen which the assailant was holding, and the assailant then ran off with the taxi's money box as well as the taxi's key. The driver called the police, who conducted a search and arrested the applicant. There was blood on the applicant's shirt, and on his person they found a car key which fitted the taxi ignition, as well as a ball pen; and the evidence was that the applicant confessed then to that robbery. He was taken to the taxi driver who at first thought that the applicant was not his assailant, for his assailant had worn jeans. Jeans however were found nearby and on a closer look the driver said that it was indeed the applicant who had robbed him. The judge warned the jury that the identification in itself was not altogether satisfactory. Evidence was adduced that the applicant's palm print was found on the outside of the taxi. The blood on the applicant's shirt matched that of the taxi driver. The chances that it came from someone other than the applicant was said by the DNA expert to be one in 5.8 billion.

6The police evidence was that they were then led by the applicant to the recovery of the knife used to rob the victim of count two, and to the recovery of that victim's driving licence and identity card; as well as to a piece of glass with which Miss Yung, the victim of the first robbery, had been threatened. This was of course highly incriminating evidence for, as the judge had pointed out, but for the applicant's involvement in these robberies, how could he come to lead the police to these items? The applicant, however, denied that he had led the police to them.

7The applicant's evidence was that he was by a store in the early morning of 3 July when he was arrested by the police who alleged his involvement in a taxi robbery. As for admissions of guilt which were evidenced by a series of statements which he made to the police, he said that they were forced from him by police brutality, and that they were all untrue. He had not given his telephone number to Miss Yung, although he agreed that the number she had was his. He also challenged the fairness of the identity parade. He said that the blood on his shirt was there because he had close contact with the taxi driver of the fifth count, when he was confronted with him shortly after his arrest.

8In his home-made written grounds of appeal, the applicant complains that the identification by the taxi driver of the fifth count was not satisfactory, pointing out that the driver had at first said he could not recognise the applicant as his assailant, and that he had said that the assailant had worn jeans, whereas in fact the applicant was wearing shorts when arrested by the police. The judge and the jury were fully aware of this, and of the circumstances in which the identification came to be made was fully explained to them. Then there was an allegation that the police officer contacted the victim before the identification parade on 9 July, and took a statement from him. The applicant says that this was improper. There is nothing inherently odd in the taking of a statement from a victim immediately after he has been robbed.

9In relation to count 1, the applicant says that when Miss Yung was at the identification parade she was shy, and did not dare walk up and down the line of those on the parade, and only identified him after the Chief Inspector had said something to her. He challenges her evidence as to how she came to identify him. The answer is that she identified him. The jury heard and assessed all the evidence, and their conclusion as to guilt was no doubt assisted by the evidence of the applicant leading the police to the weapon which had been used in that robbery, as well as by his confessions to this and to the other crimes.

10Then the applicant says in relation to counts 3 and 4, that the storeroom keeper did not identify him, and that a fingerprint of a person called Leung was found on a table in the room where the robbery had taken place. So why, he asks, was that person not charged? The applicant says he has an alibi in respect of that offence. The evidence against the applicant on this count was, as in the case of the other counts, overwhelming. His thumbprint was found on the magazine, and his story as to how it came to be there was patent nonsense. He also admitted that offence.

11In relation to count 5, he complains of inconsistencies in the evidence. In relation to those suggested inconsistencies, and to others, we see nothing in them which detracts from the overwhelming weight of the evidence that compelled this jury, quite understandably, unanimously to convict the applicant.

12In addressing us orally today, the applicant complains that the prosecutor provided the court with his previous criminal record. He concedes, however, that this was not a matter that was disclosed to the jury. That being so, there is nothing in that ground. He takes us to other matters such as the alteration of some time factor on the charge sheet: again, a matter of no significance. He has drawn our attention to other suggested disparities in the evidence of police officers.

13We are satisfied that there is absolutely no merit in this appeal. The evidence against the applicant in respect of each and every offence was as overwhelming as could be. The judge's directions were a model of their kind, and very fair to this applicant. This application is dismissed.

Representation:

Applicant in person

Mr Jackson Poon, SGC of the Department of Justice for the Respondent